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. spadones (spd-doh-neez).
spam. Unsolicited commercial e-mail. [Cases: Telecom
munications (;:;1343.]
sparsim (spahr-sim). [Latin] Rist. Scattered; here and
there. -This term was used in several situations for
example, when an action to recover for waste not only
when the injury was complete, but also when the injury
was partial or scattered.
"And if waste be done sparsim. or here and there, allover
a wood, the whole wood shall be recovered; or if in several
rooms of a house, the whole house shall be forfeited:
because it is impracticable for the reversioner to enjoy only
the identical places wasted, when lying interspersed with
the other. But if waste be done only in one end of a wood
(or perhaps in one room of a house) if that can be conve
niently separated from the rest, that part only is the locus
vastatus, or thing wasted, and that only shall be forfeited
to the reversioner." 2 William Blackstone, Commentaries on
the Laws of England 28384 (1766). spatae placitum (spay-tee plas-;:Hdm), n. [Latin "the plea
of the sword] Hist. During the reign of Henry II, a court
providing swift justice in military matters.
SPD. abbr. SUMMARY PLAN DESCRIPTION.
SPDA. See single-premium deferred annuity under
ANNUITY.
SPE. abbr. SPECIAL-PURPOSE ENTITY.
speaker. 1. One who speaks or makes a speech <the
slander claim was viable only against the speaker>. 2.
The preSiding officer of a large deliberative assembly,
esp. a legislature's more numerous house, such as the
House of Representatives <Speaker ofthe House>. See
CHAIR (1). [Cases: United States <;::>7.1.]
speaking a vessel. Maritime law. A pilot's offer of
services.
speaking demurrer. See DEMURRER.
speaking motion. See MOTION (1).
speaking objection. See OBJECTION.
speaking statute. See STATUTE.
spec. abbr. SPECIFICATION.
special, adj. (l3c) 1. Of, relating to, or designating a
species, kind, or individual thing. 2. (Of a statute, rule,
deSigned for a particular purpose. 3. (Of powers,
etc.) unusual; extraordinary.
special acceptance. See ACCEPTANCE (4).
special act. See special law under LAW.
speciaJ administration. See ADMINISTRATION.
special administrator. See ADMINISTRATOR (2).
special advocate. See guardian ad litem under
GUARDIAN.
special agency. See AGENCY (1).
special agent. 1. See AGENT (2). 2. See INSURANCE
AGENT.
special agreement. See ad hoc compromis under COM
PROMIS.
special allocatur. See ALLOCATUR.
special allowance. See ALLOWANCE (4).
special appearance. See APPEARANCE.
special assessment. See ASSESSMENT.
special-assessment bond. See special-tax bond under
BOND (3).
Special Assistant to the United States Attorney. See
UNITED STATES ATTORNEY.
special assumpsit. See ASSUMPSIT.
special attorney. See special counsel under COUNSEL.
special authority. See AUTHORITY (1).
special bail. See bail to the action under BAIL (4).
special bailiff. See BAILIFF.
special benefit. See BENEFIT.
special calendar. See CALENDAR (2).
special case. See case reserved (I) under CASE.
1525
special charge. 1. See special instruction under JURY
I!'ISTRUCTION. 2. See CHARGE.
special charter. See CHARTER (3).
special circumstances. See exigent circumstances under
CIRCUMSTANCE.
special-circumstances rule. See SPECIAL-FACTS RULE.
special committee. See COMMITTEE.
special contract. See CONTRACT.
special-contract debt. See DEBT.
special counsel. See COUNSEL.
special count. See COUNT.
special court-martial. See COURT-MARTIAL.
special covenant against encumbrances. See COVENANT
(4).
special custom. See local custom under CUSTOM.
special damages. See DAMAGES.
special demurrer. See DEMURRER.
special deposit. See DEPOSIT (2).
special deputy. See DEPUTY.
special-design property. See special-purpose property
under PROPERTY.
special deterrence. See DETERRENCE.
special diligence. See DILIGENCE.
special district. See DISTRICT.
special dividend. See extraordinary dividend under
DIVIDE!'ID.
special-duty doctrine. (1980) Torts. The rule that a gov
ernmental entity (such as a state or municipality) can
be held liable for an individual plaintiff's injury when
the entity owed a duty to the plaintiff but not to the
general public. _ This is an exception to the public-duty
doctrine. The special-duty doctrine applies only when
the plaintiff has reasonably relied on the governmental
entity's assumption of the duty. Also termed special
duty exception. See PUBLIC-DUTY DOCTRI!'IE. [Cases;
Municipal Corporations C=>723.]
special-duty exception. 1. SPECIAL-DUTY DOCTRINE. 2.
SPECIAL-ERRAND DOCTRINE.
special election. See ELECTION (3).
special employee. See borrowed employee under
EMPLOYEE.
special employer. See EMPLOYER.
special-errand doctrine. The principle that workers'
compensation covers an employee's injuries occur
ring while the employee is on a journey or special duty
for the employer away from the workplace. -This is
an exception to the general rule that an employee is
not covered for injuries occurring away from work.
Also termed special-duty exception; special-mission
exception. See GOING-AND-COMING RULE. Cf. SPECIAL
HAZARD RULE. [Cases: Workers' Compensation
71S,723.] special interrogatory
special exception. 1. A party's objection to the form
rather than the substance of an opponent's claim,
such as an objection for vagueness or ambiguity. See
DEMURRER. Cf. general exception (1) under EXCEPTION
(1). [Cases: Pleading C=>22S.14.] 2. An allowance in
a zoning ordinance for special uses that are consid
ered essential and are not fundamentally incompatible
with the original zoning regulations. -Also termed
(in sense 2) conditional use; special use. Cf. VARIANCE
(2). [Cases; Zoning and Planning C=>481.]
special execution. See EXECUTION.
special executor. See EXECUTOR.
special-facts rule. Corporations. The principle that
a director or officer has a fiduciary duty to disclose
material inside information to a shareholder when
engaging in a stock transaction under special cir
cumstances, as when the shareholder lacks business
acumen, the shares are closely held with no readily
ascertainable market value, or the director or officer
instigated the transaction. -1his is an exception to the
"majority rule." Also termed special-circumstances
rule. Cf. MAJORITY RULE (2). [Cases: Corporations
316(3).]
special finding. See FINDING OF FACT.
special-form drawing. See DRAWING.
special franchise. See FRANCHISE (2).
special grand jury. See GRAND JURY.
special guaranty. See GUARANTY.
special guardian. See GUARDIAN.
special-hazard rule. The principle that workers' compen
sation covers an employee for injuries received while
traveling to or from work if the route used contains
unique risks or hazards and is not ordinarily used by
the public except in dealing with the employer. -This is
an exception to the general rule that an employee is not
covered for injuries occurring during the employee's
commute. See GOING-AND-COMING RULE. Cf. SPECIAL
ERRAND DOCTRINE. [Cases: Workers' Compensation
C=>719-755.]
special housing unit. A block of cells used to house
inmates who have been separated from the general
prison population, usu. for disciplinary purposes but
sometimes for safety reasons. -Inmates in special
housing units typically have fewer privileges than other
inmates. -Abbr. SHU. [Cases; Prisons C=> 13(5).]
special imparlance. See IMPARLANCE.
special indorsement. See INDORSEMENT.
special injunction. See INJUNCTION.
special instruction. See JURY INSTRUCTION.
special-interest group. An organization that seeks to
influence legislation or government policy in favor of
a particular interest or issue, esp. by lobbying. Also
termed special interest.
special interrogatory. See INTERROGATORY.
special issue. 1. See ISSUE (1). 2. See special interrogatory
under INTERROGATORY.
specialist. 1. A lawyer who has been board-certified in a
specific field oflaw. See BOARD OF LEGAL SPECIALIZA
TION. 2. Securities. A securities-exchange member who
makes a market in one or more listed securities . The
exchange assigns securities to various specialists and
expects them to maintain a fair and orderly market
as provided by SEC standards. [Cases: Exchanges
10.10.]
special judge. See JUDGE.
special jurisdiction. See limited jurisdiction under JURIS
DICTION.
special jury. See JURY.
special law. See LAW.
special legacy. See specific legacy under LEGACY.
special letter ofcredit. See LETTER OF CREDIT.
special lien. See particular lien under LIEN.
special limitation. See LIMITATION.
special litigation committee. Corporations. A com
mittee of independent corporate directors assigned
to investigate the merits of a shareholder derivative
suit and, if appropriate, to recommend maintaining
or dismissing the suit. -Abbr. SLC. -Also termed
independent investigation committee; authorized com
mittee. See DERIVATIVE ACTION. [Cases: Corporations
C=>206(l).]
specially accredited agent. See AGENT (2).
special malice. See particular malice under MALICE.
special master. 1. MASTER. 2. See judicial officer (3)
under OFFICER.
special matter. See MATTER.
special meaning. See SECONDARY MEANING.
special meeting. See MEETING.
special message. See MESSAGE.
special-mission exception. See SPECIAL-ERRAND DOC
TRINE.
special mortgage. See MORTGAGE.
special motion. See MOTION (1).
special-needs analysis. (1989) Criminal procedure. A
balancing test used by the Supreme Court to determine
whether certain searches (such as administrative, civil
based, or public-safety searches) impose unreasonably
on individual rights. [Cases: Searches and Seizures C=>
24.]
special-needs child. See CHILD.
special-needs trust. See supplemental-needs trust under
TRUST.
special non est factum. See NON EST FACTUM.
special occupant. See OCCUPANT.
special offering. See OFFERING.
special order. See ORDER (4). special-order agenda. See special-order calendar under
CALENDAR (4).
special-order calendar. See CALENDAR (4).
special owner. See OWNER.
special partner. See limited partner under PARTNER.
special partnership. See PARTNERSHIP.
special permit. See SPECIAL-USE PERMIT.
special plea. See PLEA (3).
special pleader. See PLEADER.
special pleading. (17c) 1. The common-law system of
pleading that required the parties to exchange a series
of court papers (such as replications, rebutters, and sur
rebutters) setting out their contentions in accordance
with hypertechnical rules before a case could be tried.
Often, therefore, cases were decided on points of
pleading and not on the merits. [Cases: Pleading
1.] 2. The art of drafting pleadings under this system.
3. An instance of drafting such a pleading. 4. A respon
sive pleading that does more than merely deny alle
gations, as by introducing new matter to justify an
otherwise blameworthy act. 5. An argument that is
unfairly slanted toward the speaker's viewpoint because
it omits unfavorable facts or authorities and develops
only favorable ones.
special plea in bar. See PLEA IN BAR.
special plea in error. At common law, a plea alleging
some extraneous matter as a ground for defeating a
writ oferror (such as a release or expiration ofthe time
within which error can be brought), to which the plain
tiff in error must reply or demur.
special power. 1. See POWER (3). 2. See limited power of
appointment under POWER OF APPOINTMENT.
special power of appOintment. See limited power of
appOintment under POWER OF APPOINTMENT.
special power ofattorney. See POWER OF ATTORNEY.
special prayer. See PRAYER FOR RELIEF.
special privilege. See PRIVILEGE (1).
special proceeding. See PROCEEDING.
special property. See PROPERTY.
special prosecutor. See PROSECUTOR.
special-purpose entity. A business established to
perform no function other than to develop, own, and
operate a large, complex project (usu. called a single
purpose project), esp. so as to limit the number ofcredi
tors claiming against the project. - A special-purpose
entity provides additional protection for project
lenders, which are usu. paid only out of the money gen
erated by the entity's business, because there will be
fewer competing claims for that money and because the
entity will be less likely to be forced into bankruptcy. A
special-purpose entity will sometimes issue securities
instead ofjust receiving a direct loan. -Abbr. SPE.
Also termed |
purpose entity will sometimes issue securities
instead ofjust receiving a direct loan. -Abbr. SPE.
Also termed special-purpose vehicle (SPV). See BANK
RUPTCY-REMOTE ENTITY; SINGLE-PURPOSE PROJECT;
project financing under FINANCING.
1527 species
special-purpose property. See PROPERTY.
special-purpose vehicle. See SPECIAL-PURPOSE ENTITY.
special reference. See REFERENCE.
special registration. See REGISTRATION (1).
special relationship. See RELATIONSHIP.
special-relationship doctrine. (1981) The theory that ifa
state has assumed control over an individual sufficient
to trigger an affirmative duty to protect that individual
(as in an involuntary hospitalization or custody), then
the state may be liable for the harm inflicted on the
individual by a third party. This is an exception to
the general principle prohibiting members ofthe public
from suing state employees for failing to protect them
from third parties. Also termed special-relationship
exception. Cf. DANGER-CREATION DOCTRINE. [Cases:
States ~112.2(2).]
special relief. Copyright. A variance from a formal
requirement for copyright registration or deposit
granted by the U.S. Copyright Office when an applicant
shows a good reason for the variance. [Cases: Copy
rights and Intellectual Property ~50.20.]
special replication. See REPLICATION.
special reprisal. See REPRISAL.
special retainer. See RETAINER.
special retention. See RETENTION.
special rule. 1. A rule applicable to a particular case
or circumstance only. See RULE (1). 2. A deliberative
assembly's rule that supplements or supersedes its par
liamentary authority. See PARLIAMENTARY AUTHORITY.
3. A rule that applies only to a particular matter, such as
a specific bill. In senses 2 & 3, see RULE (2), (3).
specials. See special damages under DAMAGES.
special-sensitivity rule. See EGGSHELL-SKULL RULE.
special session. See SESSION (1).
special setting. See SETTING.
special statute. See STATUTE.
special stock. See STOCK.
special tail. See tail special under TAIL.
special tax. See TAX.
special-tax bond. See BOND (3).
special term. See TERM (5).
Special 301. Intellectual property. A provision of the
Omnibus Trade and Competitiveness Act of 1988
directing the U.S. Trade Representative to report
annually on countries that do not provide adequate and
effective protection against the pirating ofgoods pro
tected by U.S. intellectual-property rights . Countries
that fail the annual audit are put on a watch list and
may face trade sanctions. 19 USCA 2411 et seq.
special traverse. See TRAVERSE.
special trial setting. See special setting under SETTING.
special truce. See TRUCE.
special trust. See active trust under TRUST. specialty. 1. See contract under seal under CONTRACT. 2.
DOCTRINE OF SPECIALTY. 3. Eminent domain. Unique
property (such as a church or cemetery) that is essen
tially not marketable, so that its value for condemnation
purposes is determined by measuring the property's
reproduction cost less any depreciation. Also termed
(in sense 3) specialty property. [Cases: Eminent Domain
C-~\134.]
specialty bar. See BAR.
specialty contract. See contract under seal under
CONTRACT.
specialty creditor. See CREDITOR.
specialty debt. See special-contract debt under DEBT.
specialty doctrine. See DOCTRINE OF SPECIALTY.
specialty property. See SPECIALTY (3).
special use. See SPECIAL EXCEPTION (2).
special-use permit. A zoning board's authorization
to use property in a way that is identified as a special
exception in a zoning ordinance . Unlike a variance,
which is an authorized violation ofa zoning ordinance,
a special-use permit is a permitted exception. -Abbr.
SUP. -Also termed conditional-use permit; special
permit. See SPECIAL EXCEPTION (2). Cf. VARIANCE (2).
[Cases: Zoning and Planning ~371, 483.]
special-use valuation. See VALUATION.
special venire. See VENIRE.
special verdict. See VERDICT.
special warranty. See WARRANTY (1).
special warranty deed. See DEED.
specie (spee-shee). See IN SPECIE.
species (spee-sheez). 1. A taxonomic class oforganisms
uniquely distinguished from other classes by shared
characteristics and usu. by an inability to interbreed
with members ofother classes.
candidate species. Environmental law. Plants and
animals identified by the Fish and Wildlife Service
or National Marine Fisheries Service as potentially
endangered or threatened but not of high enough
priority to develop a proposed listing regulation under
the Endangered Species Act. Candidate species are
not protected by federal law. -Also termed listed
species.
endangered species. A species in danger ofbecoming
extinct; esp., under federal law, a species that is in
danger of extinction throughout all or a significant
part ofits range . Federal law excludes from the defi
nition a species ofthe class Insecta ifthe Environmen
tal Protection Agency determines that it constitutes
a pest whose protection would present a Significant
risk to the human population. 50 CFR 81. [Cases:
Environmental Law ~~528.1
listed species. See candidate species.
threatened species. A species that, within the foresee
able future, is likely to become an endangered species
throughout all or a Significant part of its range. 16
USCA 1532(20). [Cases: Environmental Law
528.]
2. A spedfic class or kind of thing within a larger,
general class . For example, tort refers to a general
class or genus. Slander refers to a specific kind of tort.
Cf. GENUS. 3. Patents. An element, usu. one of several
mutually exclusive alternatives, that may be used in an
invention to achieve a desired result <magnetic metals,
including iron and steel> . Species may be structures,
steps, parts, compounds, and so on.
ultimate species. A species that has been fully and
narrowly defined. For example, a species may
be defined generally as "magnetic metals, includ
ing iron and steeL" or particularly, such as "sodium
chloride."
species claim. See PATENT CLAIM.
species facti (spee-shee-eez or spee-sheez fak-tI). [Latin]
Scots law. The particular character of the thing done.
The phrase appeared in reference to the specific
criminal act or civil wrong alleged.
specific, adj. 1. Of, relating to, or designating a particu
lar or defined thing; explicit <specific duties>. 2. Ofor
relating to a particular named thing <specific item>.
3. Conformable to special requirements <specific per
formance>. -specificity (spes-<>-fis-i-tee), n. spe
cifically, adv.
specific appropriation. See APPROPRIATION (2).
specificatio (spes-<>-fi-kay-shee-oh), n. [Latin fro species
"form" +facere "to make"] Roman & civil law. L A
giving of form to materials; the process of making
something new from existing property. 2. A mode of
acquisition by which a person makes something new
from existing material (for example, wine from grapes
or a ship from timber). See ACCESSION (4). PI. specifi
cationes.
"Specificatio. This may be described as acquisition of a
new thing by making it, out of materials wholly or partly
belonging to another person. We shall deal only with the
case in which the materials are wholly another's. There
was in classical law a conflict of opinion on this topic, , . ,
Justinian tells us that there had been a media sententia
according to which it belonged to the maker if (I) it was
irreducible to its former state, and (ii) it really was a nova
speCies. where species means thing, And this view he
adopts as law." w.w. Buckland, A Manual of Roman Private
Law 143 (2d ed, 1953),
specification. (I7c) 1. The act ofmaking a detailed state
ment, esp. of the measurements, quality, materials, or
other items to be provided under a contract. [Cases:
Contracts 199(1).] 2. The statement so made. 3.
Patents. 'The part of a patent application describing how
an invention is made and used, the best mode ofopera
tion of the claimed invention, and the inventor's claims.
The specification must be clear and complete enough
to enable a person of ordinary skill in the art to make
and use the invention. It must also disclose the best
mode ofworking the invention. The term may also refer
to the description as separate from the claims. Abbr.
spec. Cf. PATENT CLAIM. [Cases: Patents ~-:::>99.] "The specification and claims of a patent, particularly ifthe
Invention be at all complicated, constitute one of the most
difficult legal instruments to draw with accuracy; and, in
view of the fact that valuable inventions are often placed in
the hands of inexperienced persons to prepare such speci'
fications and claims, it is no matter of surprise that the
latter frequently fail to describe with requisite certainty the
exact invention of the patentee, and err either in claiming
that which the patentee had not in fact invented, or in
omitting some element which was a valuable or essential
part of his actual invention," Topliff v. Topliff. 145 U.S. 156,
170,12 S.Ct. 825, 831 (1892).
substitute specification. A patent specification that
is rewritten (1) to include amendments made to the
specification after filing; (2) to replace an illegible
or unreadable original; or (3) to prepare the papers
for printing. A substitute specification must be
accompanied by a statement that it contains no new
matter, and by a copy showing what has been added
and deleted since the original specification. Substitute
specifications are allowed under 37 CFR 1.125. Also
termed rewritten specification. [Cases: Patents
109.]
4. A statement of charges against one who is accused
of an offense, esp. a military offense. [Cases: Military
Justice C:::950-971.]
"A charge sets forth an offense that is, a particular
kind of act or conduct that the governing rules define as
entailing liability to prescribed penalties -of which the
accused is alleged to be guilty. A specification states what
the accused is alleged to have done which, if true, consti
tutes an instance of the offense indicated in the charge. An
accused must be found guilty of a charge before a penalty
can be imposed." Henry M. Robert. Robert's Rules ofOrder
Newly Revised 61, at 636 (10th ed. 2002),
5. The acquisition of title to materials belonging to
another person by converting those materials into a
new and different form, as by changing grapes into
wine, lumber into shelving, or corn into liquor . The
effect is that the original owner of the materials loses
the property rights in them and is left with a right of
action for their original value. -Abbr. spec.
specific bequest. See BEQUEST.
specific denial. See DENIAL.
specific deposit. See special deposit under DEPOSIT (2).
specific devise. See DEVISE.
specific duty. See DUTY (4).
specific enforcement. See primary right under RIGHT.
specific example. See EXAMPLE.
specific guaranty. See GUARANTY.
specific intent. See INTENT (1).
specific-intent defense. Criminal law. A defendant's
claim that he or she did not have the capacity (often
supposedly because of intoxication or mental illness)
to form the intent necessary for committing the crime
alleged. lCases: Criminal Law ~48-51, 55.]
specific jurisdiction. See JURISDICTION.
specific legacy. See LEGACY.
specific legatee. See LEGATEE.
1529 speech
specific lien. See LIEN.
specific main motion. See incidental main motion under
MOTION (2).
specific objection. See OBTECTION.
specific performance. (I8c) The rendering, as nearly
as practicable, of a promised performance through a
judgment or decree; specif., a court-ordered remedy
that requires precise fulfillment of a legal or contrac
tual obligation when monetary damages are inappro
priate or inadequate, as when the sale of real estate or
a rare article is involved . Specific performance is an
equitable remedy that lies within the court's discretion
to award whenever the common-law remedy is insuf
ficient, either because damages would be inadequate
or because the damages could not pOSSibly be estab
lished. -Also termed specific relief [Cases: Specific
Performance (;::c 1.]
"In essence, the remedy of specific performance enforces
the execution of a contract according to its terms, and it
may therefore be contrasted with the remedy of damages,
which is compensation for non-execution. In specific per
formance, execution of the contract is enforced by the
power of the Court to treat disobedience of its decree as
contempt, for which the offender may be imprisoned until
he IS prepared to comply with the decree. Actually, ... it is
not strictly accurate to say that the Court enforces execu'
tion of the contract according to its terms, for the Court
will not usually intervene until default upon the contract
has occurred, so that enforcement by the Court is later in
time than performance carried out by the person bound,
without the intervention of the Court." G.W. Keeton, An
Introduction to Equity 304 (5th ed. 1961).
specific personal jurisdiction. See TURISDICTION.
specific policy. See basic-form policy under INSURANCE
POLICY.
specific-purpose rule. Insurance. The principle that a
nonowner driver of a vehicle is treated as an omnibus
insured under the vehicle owner |
. Insurance. The principle that a
nonowner driver of a vehicle is treated as an omnibus
insured under the vehicle owner's liability coverage only
ifthe driver's actual use ofthe vehicle at the time ofthe
accident is the exact use that the owner contemplated
when granting permission or consent to the nonowner
driver . The time at which the bailment of the vehicle
was to expire must not have passed, the place where
the vehicle was being used must be as specified or con
templated by the insured, and the use ofthe vehicle
must comport with the type of use that the insured had
in mind when the bailment was created. Otherwise,
the permittee's use of the vehicle will be regarded as a
conversion. -Also termed conversion rule; strict rule.
[Cases: Insurance C::::>2667.J
specific relief. See SPECIFIC PERFORMANCE.
specific remedy. See REMEDY.
specific tax. See TAX.
specific traverse. See common traverse under TRAVERSE.
specimen. An actual sample of something; esp., an
example of a trademark as it is used in commerce . In
the field of trademarks, a specimen typically consists
of a label, a container, a display, or a photograph of
the mark used for selling or advertising the goods or
services. [Cases: Trademarks (;::c 1282.] specious, adj. Falsely appearing to be true, accurate, or
just <specious argument>.
spectrograph. (1884) An electromagnetic machine that
analyzes sound, esp. a human voice, by separating and
mapping it into elements offrequency, time lapse, and
intensity (represented by a series of horizontal and
vertical bar lines) to produce a final voiceprint. See
VOICEPRINT. [Cases: Criminal Law (;::c339.6, 388.2.]
speculation, 11. (l4c) 1. The buying or selling of some
thing with the expectation of profiting from price
fluctuations <he engaged in speculation in the stock
market>. 2. The act or practice of theorizing about
matters over which there is no certain knowledge <the
public's speculation about the assassination oOohn F.
Kennedy>. speculate, vb. -speCUlative, adj.
speculative damages. See DAMAGES.
speculative risk. See RISK.
speculative security. See SECURITY.
speculator. A knowledgeable, aggressive investor who
trades securities to profit from fluctuating market
prices.
speech. (bef. 12c) 1. The expression or communication
of thoughts or opinions in spoken words; something
spoken or uttered. See FREEDOM OF SPEECH. [Cases:
Constitutional Law (;::c1492.]
commercial speech. (1963) Communication (such as
advertising and marketing) that involves only the
commercial interests ofthe speaker and the audience,
and is therefore afforded lesser First Amendment pro
tection than social, political, or religiOUS speech. Cf.
pure speech. [Cases: Constitutional Law C::~) 1535
1541.1
corporate speech. (1959) Speech deriving from a cor
poration and protected under the First Amendment.
It does not lose protected status simply because of
its corporate source.
hate speech. (1988) Speech that carries no meaning
other than the expression of hatred for some group,
such as a particular race, esp. in circumstances
in which the communication is likely to provoke
violence. Cf. hate crime under CRIME; group libel
under LIBEL. [Cases: Civil Rights 1808; Consti
tutional Law (;::c 1560.]
pure speech. (1943) Words or conduct limited in form
to what is necessary to convey the idea . This type of
speech is given the greatest constitutional protection.
Cf. commercial speech; symbolic speech.
seditious speech. (1920) Speech advocating the violent
overthrow of government. See SEDITION. [Cases: Con
stitutional Law (:::;;, 1580.]
speech-plus. See symbolic speech.
symbolic speech. (1966) Conduct that expresses
opinions or thoughts, such as a hunger strike or the
wearing of a black armband . Symbolic speech does
not enjoy the same constitutional protection tbat pure
speech does. -Also termed speech-plus. Cf. pure
speech. [Cases: Constitutional Law C=;90.1(I).]
2. English law. An opinion delivered by a Law Lord;
JUDGMENT (2). 3. Parliamentary law. The unit of debate;
specif., one statement, usu. subject to a time limit, on
one question by one member. -When finished, the
speaker must relinquish the floor and ordinarily cannot
yield it to another member.
Speech Clause. The First Amendment provision that
"Congress shall make no law ... abridging the freedom
of speech." U.S. Const. amend I. Also termed
Freedom ofSpeech Clause. [Cases: Constitutional Law
C:::) 1490-2304.]
Speech or Debate Clause. (1965) The clause of the u.s.
Constitution giving members of Congress immunity
for statements made during debate in either the House
or the Senate. -This immunity is extended to other
areas where it is necessary to prevent impairment of
deliberations and other legitimate legislative activities,
such as subpoenaing bank records for an investigation.
U.S. Const. art. I, 6., cl. 1. Also termed Speech and
Debate Clause. See congressional immunity under
IMMUNITY (1). [Cases: United States C=>12.]
speech-plus. See symbolic speech under SPEECH.
speedy execution. See EXECUTION.
speedy remedy. See REMEDY.
speedy trial. (l8c) Criminal procedure. A trial that the
prosecution, with reasonable diligence, begins promptly
and conducts expeditiously. -The Sixth Amendment
secures the right to a speedy trial. In deciding whether
an accused has been deprived of that right, courts gen
eraly consider the length ofand reason for the delay,
and the prejudice to the accused. [Cases: Criminal Law
C=;577.1-577.16.]
Speedy Trial Act of 1974. A federal statute establishing
time limits for carrying out the major events (such as
information, indictment, arraignment, and trial com
mencement) in the prosecution of federal criminal
cases. 18 USCA 3161-3174. [Cases: Criminal Law
577.5.]
spending bill. See appropriations bill under BILL (3).
spending power. See POWER (3).
spendthrift, n. One who spends lavishly and wastefully:
a profligate. [Cases: Spendthrifts C=;3.] spendthrift,
adj.
spendthrift trust. See TRUST.
spent bill oflading. See BILL OF LADING.
spe numerandae pecuniae (spee n[y]oo-mCl-ran-dee pi
kyoo-nee-ee). [Law Latin] Scots law. In the hope ofthe
money being paid.
"So, also, where one delivers a conveyance, which acknowl
edges receipt of the consideration price, and discharges
the disponee, this does not exclude his action for the price,
if the disponee. on receiving delivery, refuses payment; the
disponee is still liable ex dolo, the deed having been deliv
ered spe numerandae pecuniae: John Trayner, Trayner's
Latin Maxims 582 (4th ed, 1894). sperate (speer-;:Jt), adj. Archaic. (Of a debt) recoverable;
not hopeless. -In determining whether a debt could be
collected, consideration was formerly given to whether
the debt was desperate or sperate.
spes accrescendi (speez ak-r;:J-sen-dI). [Latin "hope of
accrual"] Hope ofacquiring an extra share ofa legacy
or inheritance by survival.
spes obligationis (speez ob-li-gay-shee-oh-nis). [Latin]
Hist. The hope of an obligation yet to emerge.
spes recuperandi (speez ri-k[y]oo-p;:J-ran-dr). [Latin
"hope ofrecovery"] Hope of recovering a prize, as from
a captured vessel.
spes succession is (speez sdk-sesh-ee-oh-nis). [Latin
"hope ofsuccession"] Hope of succeeding to a right.
"A mere spes successionis must be distinguished from a
contingent right. If Matilda has nursed her Invalid friend
for thirty years, she may have every hope of succeeding
to the property, but she has no right." George Whitecross
Paton, A Textbook ofjurisprudence 306 (GW. Paton &David
P. Derham eds., 4th ed. 1972),
spes successionis in destinatione (speez s<lk-ses[h)-ee
oh-nis in des-ti-nay-shee-oh-nee). [Law Latin) Hist.
A hope of succeeding under a destination (that is, an
appointment by will).
spes successionis in obligatione (speez s;3k-ses[h]-ee-oh
nis in ob-li-gay-shee-oh-nee). [Law Latin] Hist. A hope
ofsucceeding to a right under an existing obligation.
Spielberg doctrine. Labor law. The policy of the National
Labor Relations Board to defer to an arbitrator's
decision regarding a contract dispute if(1) the decision
is not repugnant to the NLRB, (2) the arbitration pro
ceedings prOVided a hearing as fair as would have been
provided before the NLRB, and (3) the contract requires
binding arbitration. Spielberg Mfg. Co., 112 NLRB Dec.
(CCH) 86 (1955). Cf. COLLYER DOCTRINE.
"In Spielberg Mfg. Co. (1955), the Board announced its
policy of dismissing an unfair labor practice complaint
in deference to an arbitration award already rendered,
provided the arbitral procedures were fair and the award
was not repugnant to the policies of the Labor Act .... The
Supreme Court in several cases cited the Board's deferral
policy with approval, noting that the Board has discre
tion to respect an arbitration award and that arbitration
of disputes contributes to industrial peace and stability."
Robert A. Gorman, Basic Text on Labor Law: Unionization
and Collective Bargaining 751 (1976).
spigurnel (spig-<lr-nel), n. Hist. An early officer ofthe
Chancery, equivalent to the Sealer of the king's writs
in later times.
spillover. See EXTERNALITY.
spillover theory. (1985) The principle that a severance
must be granted only when a defendant can show that
a trial with a codefendant would substantially prejudice
the defendant's case, as when the jury might wrongly
use evidence against the defendant. See BRUTON ERROR.
[Cases: Criminal Law C=;622.7(8).]
"The spillover theory involves the question of whether a
jury's unfavorable impression of a defendant against whom
the evidence is properly admitted will influence the way
the jurors view a codefendant .. , . The test. , . is whether
the jury can keep separate the evidence that is relevant to
1531 sponge tax
each defendant and render a fair and impartial verdict."
22A C).S. Criminal Law 571, at 190-91 (1989).
spinning. Securities. The giving of shares or preferred
opportunities to buy shares in an initial public offering
to key investment-banking clients in order to solicit or
retain profitable business in the future.
spin-off, n. 1. A corporate divestiture in which a division
ofa corporation becomes an independent company and
stock of the new company is distributed to the corpo
ration's shareholders. [Cases: Corporations (;::::0445.]
2. The company created by this divestiture. -Also
written spinoff. Cf. SPLIT-OFF; SPLIT-UP.
spirit of the law. (16c) 1he general meaning or purpose
of the law, as opposed to its literal content. Cf. LETTER
OF THE LAW. [Cases: Statutes (;::::0 183.]
spiritual, adj. Ofor relating to ecclesiastical rather than
secular matters <spiritual corporation>.
spiritual corporation. See CORPORATION.
spiritual court. See ecclesiastical court under COURT.
spiritual lord. An archbishop or bishop having a seat in
the House of Lords.
spiritual tenure. See TENURE.
spiritual-treatment exemption. See FAITH-HEALING
EXEMPTION.
spital (spit-;>l). Archaic. A hospital. Also termed
spittle.
spite fence. (1901) A fence erected solely to annoy a
neighbor, as by blocking the neighbor's view or pre
venting the neighbor from acquiring an easement of
light <the court temporarily enjoined the completion
of the 2S-foot spite fence>. Cf. LAWFUL FENCE. [Cases:
Adjoining Landowners C::~:10; Fences Nuisance
C=)3(12).]
spittle. See SPITAL.
split, vb. 1. To divide (a cause of action) into segments
or parts. 2. To issue two or more shares for each old
share without changing the shareholder's proportional
ownership interest. See STOCK SPLIT; SPLIT-INTEREST
PURCHASE OF PROPERTY. [Cases: Corporations
66.]
split custody. See CUSTODY (2).
split-dollar life insurance. See LIFE INSURANCE.
split fund. See dual fund under MUTUAL FUND.
split-funded plan. See EMPLOYEE BENEFIT PLAN.
split gift. See GIFT.
split income. See INCOME.
split-interest purchase of property. An arrangement
between two parties to purchase an asset whereby
one party (often a parent) purchases a life estate and
the other party (often a child |
to purchase an asset whereby
one party (often a parent) purchases a life estate and
the other party (often a child or grandchild of the life
tenant) purchases a remainder interest. _ Each party
to a split pays the actuarial value of the interest pur
chased. Often shortened to split. -Also termed
joint-interest purchase. split-interest trust. See charitable-remainder trust under
TRUST.
split-level statute. See STATUTE.
split-off, n. 1. 'llie creation of a new corporation by an
existing corporation that gives its shareholders stock
in the new corporation in return for their stock in the
original corporation. 2. The corporation created by this
process. -Also written splitoff. Cf. SPIN-OFF; SPLIT
UP.
split order. See ORDER (8).
split sentence. See SENTENCE.
splitting a cause of action. (1850) Separating parts of
a demand and pursuing it piecemeal; presenting only
a part of a claim in one lawsuit, leaving the rest for a
second suit. _ This practice has long been considered
procedurally impermissible. [Cases: Action C=S3;
Judgment (;::::0591.]
split-up, n. The division of a corporation into two or
more new corporations. _ The shareholders in the
original corporation typically receive shares in the
new corporations, and the original corporation goes
out ofbusiness. Also written splitup. Cf. SPI~-OFF;
SPLIT-OFF.
split verdict. See VERDICT.
spoiled ballot. See BALLOT (2).
spoils ofwar. See BOOTY (1).
spoils system. The practice of awarding government
jobs to supporters and friends of the victorious politi
cal party. Cf. MERIT SYSTEM. [Cases: Officers and Public
Employees (;::::025.]
spoliation (spoh-Iee-ay-sh;>n), n. (18c) 1. The intentional
destruction, mutilation, alteration, or concealment of
evidence, usu. a document. -Ifproved, spoliation may
be used to establish that the evidence was unfavor
able to the party responsible. [Cases: Evidence (;::::078;
Federal Civil Procedure 1636; Pretrial Procedure
(;::::0434.] 2. The seizure of personal or real property
by violent means; the act ofpillaging. 3. 1he taking of
a benetit properly belonging to another. 4. Eccles. law.
The wrongful deprivation ofa cleric ofhis benefice.
spoliate (spoh-Iee-ayt), vb. -spoliator (spoh-Iee-ay
tar), n.
spolium (spoh-lee-;>m), n. [Latin "booty"] Roman law.
Something taken from an enemy in war or plundered
from a fellow-citizen . The plural spolia was more
common than the Singular.
Spondesnef Spondeo (spon-deez spon-dee-oh). [Latin]
Roman law. Do you agree to undertake? I undertake.
This was the special phrase, available only to citizens,
that created a sponsio. See SPONSIO; STIPULA TIO.
spondet peritiam artis (spon-det p;>-rish-ee-am ahr-tis).
[Latin "he guarantees his professional skill"] Hist. He
promised to use the skill of his art. -This phrase is used
in construction contracts to indicate an implied agree
ment to perform in a workmanlike manner.
sponge tax. See pickup tax under TAX.
sponsalia (spon-say-lee-~), n. [Latin] Rist. 1. A betrothal;
an engagement to marry. 2. An engagement gift.
Also termed stipulatio sponsalitia.
sponsalia per verba de futuro (spon-say-lee-a p~rv<lr-b~
dee f[yJoo-t[y)oor-oh). [Latin "espousals by words
about the future"] Rist. A promise to marry in the
future.
"[AJ promise to marry in the future (sponsalia per verba de
futuro) gave rise only to an executory contract of marriage.
The regular way of executing the contract was to solem
nise the marriage, using present words. But the Canon
law acknowledged that it could also be turned into the
indissoluble bond of present matrimony by physical con
summation .... Thus, in the absence of carnal copulation,
the validity of a marriage had come to depend on whether
the contract was bywords de praesenti or de futuro . ... It
is hardly surprising that it gave rise to so much wrangling
and fraud, and that the commonest species of matrimonial
suit in the medieval consistory courts was to interpret and
enforce 'espousals'." j.H. Baker, An Introduction to English
Legal History 546 (3d ed. 1990).
sponsalia per verba de praesenti (spon-say-Iee-a par
v<lr-ba dee pri-zen-tr or pree-). Eccles. law. A type of
informal marriage that occurred when the parties
made an informal agreement to have each other as
husband and wife. -This type of informal marriage
was based on nothing more than the present consent
to be married but was entirely valid and would take
precedence over a later formal ceremonial marriage
that either of the parties attempted to contract with
someone else.
sponsio (spon-shee-oh), n. [Latin] Roman law. An
undertaking, available only to citizens, in the form of
an answer to a question using a solemn form ofwords
with religious overtones. -This was the original form
ofstipulation. See STIPULATIO.
sponsio judicialis (spon-shee-oh joo-dish-ee-ay-lis).
[Latin] Roman law. A formal promise that the judge is
entitled to acquire by virtue ofhis office. PI. sponsiones
judiciales.
sponsio ludicra (spon-shee-oh loo-di-kra). [Latin "a
laughable promise")!. Civil law. An informal or illicit
understanding that is not enforceable. 2. Scots law. An
obligation that a court will not enforce because it does
not concern a worthy subject; e.g., a gambling agree
ment. Pi. sponsiones ludicrae.
sponsion (spon-sh;m), n. [fr. Latin spondere "to engage"]
1. The formal pledge by which a person becomes a
surety. 2. Int'llaw. An ultra vires promise ofan official
agent (such as a general in wartime), requiring later
ratification by the principal. 3. Roman law. A form
of guarantee accessory to an oral contract. -Only
Roman citizens could make this type ofguarantee. See
ADPROMISSION (1). sponsional (spon-sh;}n-;}l), adj.
sponsor. 1. One who acts as a surety for another. 2. A
legislator who proposes a bill. 3. Civil law. One who vol
untarily intervenes for another without being requested
to do so. 4. GODPARENT.
spontaneous abortion. See MISCARRIAGE.
spontaneous crime. See CRIME. spontaneous declaration. (1840) Evidence. A statement
that is made without time to reflect or fabricate and is
related to the circumstances of the perceived occur
rence. -Also termed spontaneous statement; spontane
ous exclamation; spontaneous utterance. See EXCITED
UTTERANCE; PRESENT SENSE IMPRESSION. [Cases:
Criminal Law~363; Evidence~120.]
sponte (spon-tee). [Latin) Rist. Spontaneously; volun
tarily. See SUA SPONTE.
sponte oblata (spon-tee <l-blay-ta). [Latin "freely offered")
Rist. A gift to the Crown.
sports franchise. See FRANCHISE (4).
sportula (spor-cha-la), n. [Latin] Roman law. 1. A
present; a donation, as to the poor. 2. A fee paid to
certain officials for performing judicial duties. -Also
termed sportella.
spot, adj. Made, paid, or delivered immediately <a spot
sale> <spot commodities>.
spot market. See MARKET.
spot price. See PRICE.
spot zoning. See ZONING.
spousal abuse. See ABUSE.
spousal allowance. See ALLOWANCE (1).
spousal consortium. See CONSORTIUM.
spousal-impoverishment provision. A section of the
Medicare Catastrophic Coverage Act allOWing the stay
at-home spouse ofa person residing in a nursing home
to retain certain assets and some joint income, and to
earn income without jeopardizing the institutionalized
spouse's eligibility for Medicaid. _ Before the provi
sion was enacted in 1988, almost all of a couple's joint
assets and the noninstitutionalized spouse's income
had to go toward the cost of the nursing-home resi
dent's care before Medicaid provided any support. 42
USCA 1396r-5. [Cases: Health ~471.1
spousal labor. Family law. Work by either spouse during
the marriage. _ This term is typically used in commu
nity-property states.
spousal privilege. See marital privilege under PRIVILEGE
(3).
spousal rape. See marital rape under RAPE.
spousals. Rist. Mutual promises to marry.
spousal support. See ALIMONY.
spousal-unity doctrine. Rist. 1. Family law. The com
mon-law rule that a husband and wife were a legal
unity. -Under the spousal-unity doctrine, the husband
had all rights to the possession, management, control,
and alienation of property. The wife had no interests
in property. Also termed doctrine ofspousal unity.
Cf. LEGAL-UNITIES DOCTRINE. See MARRIED WOMEN'S
PROPERTY ACTS. 2. Tax. The rule that a person and that
person's spouse are treated as one. -'Ihis rule has been
repealed. -Also termed spousal-unity rule. [Cases:
Internal Revenue Taxation (;=:3484.]
1533
spouse. One's husband or wife by lawful marriage; a
married person. [Cases: Husband and Wife C-=>1.]
innocent spouse. (1924) Tax. A spouse who may be
relieved ofliability for taxes on income that the other
spouse did not include on a joint tax return. -The
innocent spouse must prove that the other spouse
omitted the income, that the innocent spouse did not
know and had no reason to know of the omission,
and that it would be unfair under the circumstances
to hold the innocent spouse liable. [Cases: Internal
Revenue (;::::3566.1; Taxation C:::>3484.]
putative spouse. Family law. A spouse who believes in
good faith that his or her invalid marriage is legally
valid. See putative marriage under MARRIAGE (1).
[Cases: Marriage ~54.]
surviving spouse. A spouse who outlives the other
spouse.
spouse-breach. See ADULTERY.
spray trust. See sprinkle trust under TRUST.
spread, n. 1. Banking. The difference between the interest
rate that a financial institution must pay to attract
deposits and the rate at which money can be loaned.
2. Securities. The difference between the highest price
a buyer will pay for a security (the bid price) and the
lowest price at which a seller will sell a security (the
asked price). 3. Securities. The simultaneous buying
and selling of one or more options or futures contracts
on the same security in order to profit from the price
difference. 4. In investment banking, the difference
between the price the underwriter pays the issuer of
the security and the price the public paid in the initial
offering. The spread compensates the underwriter for
its services; it comprises the manager's fee, the under
writer's discount, and the selling-group concession
or discount. Also termed (in sense 4) gross spread;
underwriting spread.
spread eagle. See STRADDLE.
spreadsheet. A multicolumn worksheet used esp. by
accountants and auditors to summarize and analyze
financial transactions.
spread upon the minutes. Parliamentary law. To incor
porate into the minutes a statement expressing a sen
timent, such as a memorial celebrating a deceased
member's life.
spreta auctoritate judicis (spree-td awk-tor-d-tay-tee
joo-di-sis). [Law Latin] Hist. The authority of the judge
being disregarded.
spreta inhibitione (spree-td in-hi-bish-ee-oh-nee). [Law
Latin] Hist. In contempt of an inhibition.
springing durable power of attorney. See springing
power ofattorney under POWER OF ATTORNEY.
springing executory interest. See EXECUTORY INTER
EST.
springing power of attorney. See POWER OF ATTORNEY.
springing use. See USE (4).
spring tide. See TIDE. squatter
sprinkle power. In a sprinkle trust, the trustee's discre
tion about when and how much of the trust principal
and income are to be distributed to the beneficiaries.
See sprinkle trust under TRUST.
sprinkle trust. See TRUST.
spuilzie (spuul-yee), n. Scots law. 1. The wrongful taking
of corporeal movable property from another's posses
sion. -This is the Scottish equivalent of common
law conversion. 2. An action to recover wrongfully
taken movables, and often for either profits made with
them while in the taker's possession or reparations for
unjust dispossession. -Also spelled spulzie; spulyie.
spuilzied, adj.
spurious (spyoor-ee-<ls), ad;. (l6c) 1. Deceptively suggest
ing an erroneous origin; fake <spurious trademarks>.
2. Ofdoubtful or low quality <spurious goods that fell
apart>. 3. Archaic. Of illegitimate birth <spurious off
spring>.
spurious bank bill. |
apart>. 3. Archaic. Of illegitimate birth <spurious off
spring>.
spurious bank bill. See spurious banknote under
BANKNOTE.
spurious banknote. See BANKNOTE.
spurious class action. See CLASS ACTION.
spurius (spyuur-ee-;Js), n. [Latin] Roman law. A bastard;
the offspring of unlawful intercourse. PI. spurii
(spyuur-ee-I). See NOTHUS.
SPY. abbr. Special-purpose vehicle. See SPECIAL-PGR
POSE ENTITY.
spy. One who secretly observes and collects secret infor
mation or intelligence about what another government
or company is doing or plans to do; one who commits
espionage. See ESPIONAGE.
squalor carceris (skway-lor kahr-sdr-is). [Law Latin]
Scots law. The strictness of imprisonment.
"This term means merely the strictness of imprisonment
which a creditor is entitled to enforce, with the view of
compelling the debtor to pay the debt, or disclose any
funds which he may have concealed. It does not imply
(as it did with the ancient churchmen, from whom the
term is derived) anything loathsome or unhealthy in the
imprisonment in Scotland, which is indeed less close than
in England. Squalor careeris is not necessary in imprison'
ment on meditatio fugae warrant, security being all that
is required in such cases." William Bell, Bell's Dictionary
and Digest of the Law of Scotland 1032 (George Watson
ed., 7th ed. 1890).
squalor morbi (skway-Ior mor-bI). [Law Latin] Rist. The
dregs ofdisease.
square, n. (17c) 1. A certain portion ofland within a city
limit. -Also termed block. [Cases: Municipal Corpo
rations (::::>721(1).] 2. A space set apart for public use.
3. In a government survey, an area measuring 24 by
24 miles.
squatter. (l8c) L A person who settles on property
without any legal claim or title. 2. A person who settles
on public land under a government regulation allowing
the person to acquire title upon fulfilling specified con
ditions. [Cases: Public Lands C~35.]
squatter's rights. (1855) The right to acquire title to real
property by adverse possession, or by preemption of
public lands. See ADVERSE POSSESSION.
squeeze-out, n. An action taken in an attempt to elimi
nate or reduce a minority interest in a corporation. Cf.
FREEZE-OUT. (Cases: Corporations (;:)182.3,584.]
Squires claim. See PATENT CLAIM.
Squires doctrine. Patents. A rule of the U.S. Patent
and Trademark Office that a utility-patent claim may
incorporate drawings or tables by reference, but only
when there is no practical way to express the informa
tion in words, and when referring to the artwork is a
concise way to communicate the information. -The
namesake case involved a numerical font designed to
be readable in the dim red light inside a submarine. It
is allowed only when necessary, and is not available just
for the convenience of an applicant. Ex parte Squires,
133 USPQ (BNA) 598 (Bd. App. 1961). [Cases: Patents
(;:"100.]
SRO. abbr. See SELF-REGULATORY ORGANIZATION.
ss. abbr. l. Sections. 2. Subscripsi (Le., signed below). 3.
Sans (i.e., without). 4. (Erroneously) scilicet.
"Many possible etymologies have been suggested for this
mysterious abbreviation. One is that it signifies scilicet (=
namely, to wit), which is usually abbreviated sc. or sci/.
Another is that ss. represents '[tlhe two gold letters at the
ends of the chain of office or "collar" worn by the Lord Chief
Justice of the King's Bench ... .' Max Radin, Law Dictionary
327 (1955). Mellinkoff suggests that the precise etymology
is unknown: 'Lawyers have been using 5S for nine hundred
years and still are not sure what it means.' David Mellinkoff,
The Language ofthe Law 296 (1963). In fact, though, it is a
flourish deriving from the Year Books --an equivalent of
the paragraph mark: '~.' Hence Lord Hardwicke's statement
that 5S. is nothing more than a division mark. See Jodderrell
v. Cowell, 95 Eng. Rep. 222, 222 (K.B. 1737) .... An early
form book writer incorporated it into his forms, and ever
since it has been mindlessly perpetuated by one generation
after another." Bryan A. Garner, A Dictionary of Modern
Legal Usafje 825 (2d ed. 1995).
SSA. abbr. SOCIAL SECURITY ADMINISTRATION.
SSDI. abbr. SOCIAL SECURITY DISABILITY INSURANCE.
SSI. abbr. SUPPLEMENTAL SECURITY INCOME.
SSS. abbr. SELECTIVE SERVICE SYSTEM.
stabilize, vb. 1. To make firm or steadfast <to stabilize
the ship>. 2. To maintain a particular level or amount
<stabilize prices>.
stable stand. Hist. In forest law, a person found standing
in a forest either with a bow bent, ready to shoot a deer,
or close to a tree with greyhounds on a leash and ready
to slip, being presumptive evidence of an intent to steal
the Crown's deer.
stacking. (1982) l. Insurance. The process of obtaining
benefits from a second policy on the same claim when
recovery from the first policy alone would be inade
quate. [Cases: Insurance~2108, 2799.]
judicial stacking. The principle that a court can
construe insurance policies to permit stacking, under
certain circumstances, when the policies do not specifically allow stacking but public policy is best served
by permitting it. [Cases: Insurance ~2799.]
policy stacking. Stacking that is permitted by the
express terms of an insurance policy. [Cases: Insur
ance (;::,,2108.]
2. A gerrymandering technique in which a large politi
calor racial group is combined in the same district
with a larger opposition group. Cf. CRACKING; PACKING.
[Cases: Elections 12(6).]
staff attorney. 1. See ATTORNEY, 2. See CLERK (5).
staff director. See EXECUTIVE DIRECTOR.
staff judge advocate. See JUDGE ADVOCATE.
stagflation (stag-flay-sh.:m), n. A period of slow economic
growth or recession characterized by high inflation,
stagnant consumer demand, and high unemploy
ment. -stagflationary, adj.
staggered board of directors. See BOARD OF DIREC
TORS.
stagiarius (stay-jee-air-ee-as), n. [Latin] Hist. 1. Eccles.
law. A resident canon; an ecclesiastic bound to keep
terms of residence. 2. A stagiary; a law student keeping
terms before admission to the bar.
stake, n. Cbef, 12c) 1. Something (such as property)
deposited by two or more parties with a third party
pending the resolution of a dispute; the subject matter
of an interpleader. [Cases: Interpleader ('::::>21.J 2. An
interest or share in a business venture. 3. Something
(esp. money) bet in a wager, game, or contest. [Cases:
Gaming (;:::::, 1,67,] 4. A boundary marker used in land
surveys. [Cases: Boundaries
stakeholder. (18c) 1. A disinterested third party who
holds money or property, the right to which is disputed
between two or more other parties. See INTERPLEADER.
[Cases: Interpleader (.':::' 13.] 2. A person who has an
interest or concern in a business or enterprise, though
not necessarily as an owner. 3. One who holds the
money or valuables bet by others in a wager. [Cases:
Gaming 72.5.]
stale check. See CHECK.
stale claim. See CLAIM (3).
Stalingrad defense. See DEFENSE (2).
stalking. (bef. 12c) 1. The act or an instance of follow
ing another by stealth. 2. The offense of following or
lOitering near another, often surreptitiously, to annoy
or harass that person or to commit a further crime
such as assault or battery. -Some statutory definitions
include an element that the person being stalked must
reasonably feel harassed, alarmed, or distressed about
personal safety or the safety ofone or more persons for
whom that person is responsible. And some definitions
include acts such as telephoning another and remain
ing silent during the call. Cf. CYBERSTALKING. [Cases:
Extortion and Threats ~25.1.]
stallage (stawl-ij), n. Hist. 1. The right to erect stalls in
public markets. 2. The cost for that right.
1535 stand at ease
stamp, n. (15c) An official mark or seal placed on a
document, esp. to indicate that a required tax (such as
duty or excise tax) has been paid. [Cases: Bills and Notes
C~:)56; Internal Revenue (;::::>4390-4409; Taxation
2218,3679.]
stamp acts. English statutes requiring and regulating
stamps on deeds, contracts, legal papers, bills, or other
documents.
stamp duty. Hist. A tax raised by requiring stamps sold
by the government to be affixed to designated docu
ments, thus forming part of the perpetual revenue.
See stamp tax under TAX. [Cases: Internal Revenue
4390-4409; Taxation (;::2218.]
"A fifth branch of the perpetual revenue consists in the
stamp duties, which are a tax imposed upon all parch
ment and paper whereon any legal proceedings, or private
instruments of almost any nature whatsoever, are written:
and also upon licenses ... and pamphlets containing less
than six sheets of paper. These imposts are very various,
according to the nature of the thing stamped, rising gradu
ally from a penny to ten pounds: 1 William Blackstone,
Commentaries on the Laws of England 312-13 (1765).
stamp tax. See TAX.
stand. See WITNESS STAND.
stand adjourned. (Of a meeting or proceeding) to be in a
state of adjournment <this court stands adjourned until
10:00 a.m. tomorrow> . This status is usu. announced
by a judge or other presiding officer concerning the
business scheduled to continue at a later time. -Often
shortened to adjourned. [Cases: Courts (::::;'66.]
standard, n. (I5c) 1. A model accepted as correct by
custom, consent, or authority <what is the standard
in the antfarm industry?>. 2. A criterion for measur
ing acceptability, quality, or accuracy <the attorney
was making a nice living even by New York stan
dards>. standard, adj.
objective standard. (1915) A legal standard that is based
on conduct and perceptions external to a particular
person . In tort law, for example, the reasonable
person standard is considered an objective standard
because it does not require a determination of what
the defendant was thinking.
subjective standard. (1915) A legal standard that is
peculiar to a particular person and based on the
person's individual views and experiences . In
criminal law, for example, a subjective standard
applies to determine premeditation because it depends
on the defendant's mental state.
Standard & Poor's. An investment-analysis and
-advisory service . Standard & Poor's rates the finan
cial strength of businesses from AAA (strongest) to AA,
A, BBB, and so on to CCC. Most grades may also be
modified with a plus- or minus-sign according to the
business's relative strength among similar companies.
A rating ofR means that the company is the subject of
some regulatory action.
standard characteristics. See STANDARD DESCRIPTIVE
CHARACTERISTICS.
standard deduction. See DEDUCTION. standard descriptive characteristics. Parliamentary law.
The basic rules that apply to and define a motion . The
characteristics include when the motion is in order;
its rank that is, what it takes precedence over, and
what yields to it; whether making it may interrupt a
speaker; whether it needs a second; whether it is debat
able; whether it is amendable; what vote its adoption
takes; and whether it can be reconsidered. Also
termed standard characteristics.
standard-form contract. See CONTRACT.
standard instruction. See fURY INSTRUCTION.
standardized contract. See standard-form contract
under CONTRACT.
standard mortgage clause. See MORTGAGE CLAUSE.
standard ofcare. (1890) Torts. In the law of negligence,
the degree of care that a reasonable person should
exercise. See CARE (2). [Cases: Negligence (;~:'230-
233.]
standard ofneed. In public-assistance law, the total sub
sistence resources required by an individual or family
unit as determined by a state and, when unsatisfied by
available resources, entitles the individual or family
unit to public assistance. [Cases: Social Security and
Public Welfare (::::;4.10,194.7.]
standard of proof. (1922) The degree or level of proof
demanded in a specific case, such as "beyond a reason
able doubt" or "by a preponderance of the evidence."
See BURDEN OF PERSUASION. [Cases: Criminal Law (;::;:.
560; Evidence (::::;596.]
standard of review. 1be criterion by which an appel
late court exercising appellate jurisdiction measures
the constitutionality of a statute or the propriety ofan
order, finding, or judgment entered by a lower court.
[Cases: Appeal and Error (~J836- |
order, finding, or judgment entered by a lower court.
[Cases: Appeal and Error (~J836-1099; Criminal Law
(::::;'1134.1-1180; Federal Courts <>751-917.]
standard policy. See INSURANCE POLICY.
standard-setting organization. A body that sets,
describes, or documents uniform operating, techno
logical, or other norms for participants in a particular
field or industry. -Also termed standards body.
! Standards for Imposing Lawyer Sanctions. The ABA's
1986 supplement to the Standards for Lawyer Disci
I pline, prescribing a range of sanctions and guidelines
for applying them. Sanctions range from repri
mands to disbarment. [Cases: Attorney and Client
(;:::::>59.5(2).J
Standards for Lawyer Discipline. A set of model rules,
created by the ABA in 1979, establishing procedures for
disciplining lawyers who violate ethics rules or commit
crimes . The rules stress that the process is an inquiry
to determine an attorney's fitness to practice, not to
determine a punishment.
stand at ease. Parliamentary law. To take an informal
pause during a meeting wit hout taking a recess, at the
instance of the chair.
standby charge 1536
standby charge. A property levy, often based on acreage,
imposed on the mere availability of a service, whether
or not the service is actually used.
standby commitment. An arrangement between an
underwriter and an issuer of securities whereby the
underwriter agrees, for a fee, to buy any unsold shares
remaining after the public offering. -Also termed
standby underwriting agreement.
standby counsel. See COUNSEL.
standby guardian. See GUARDIAN.
standby guardianship. See GUARDIA:SSHIP.
standby letter ofcredit. See LETTER OF CREDIT.
standby trust. See TRUST.
standby underwriting. See UNDERWRITI!'IG.
standby underwriting agreement. See STANDBY COM
MITMENT.
standing, n. (1924) A party's right to make a legal claim
or seek judicial enforcement of a duty or right . To
have standing in federal court, a plaintiff must show
(1) that the challenged conduct has caused the plain
tiff actual injury, and (2) that the interest sought to be
protected is within the zone of interests meant to be
regulated by the statutory or constitutional guarantee
in question. Also termed standing to sue. Cf. JUSTI
CIABILITY. [Cases; Action Federal Civil Proce
dure 103.1.]
"Have the appellants alleged such a personal stake in the
outcome of the controversy as to assure that concrete
adverseness wh ich sharpens the presentation of issues
upon which the court so largely depends for illumination
of difficult constitutional questions? This is the gist of the
question of standing." Baker v. Carr, 369 U.S. 186,204, 82
S.Ct. 691, 703 (1962) (Brennan, j.).
'The word standing is rather recent in the basic judicial
vocabulary and does not appear to have been commonly
used until the middle of our own century. No authority that
I have found introduces the term with proper explanations
and apologies and announces that henceforth standing
should be used to describe who may be heard by ajudge.
Nor was there any sudden adoption by tacit consent. The
word appears here and there. spreading very gradually
with no discernible pattern. Judges and lawyers found
themselves using the term and did not ask why they did
so or where it came from." joseph Vining, Legal Identity
55 (1978).
third-party standing. (1968) Standing held by
someone claiming to protect the rights of others .
For example, in most jurisdictions, only a parent has
standing to bring a suit for custody or visitation; in
some, however, a third party for instance, a grand
parent or a person with whom the child has substan
tial contacts -may have standing to bring an action
for custody or visitation. See GRANDPARENT RIGHTS.
[Cases; Action Child Custody C=:>409; Federal
Civil Procedure (;:~103.4.]
standing aside a juror. The prosecution practice of
provisionally placing a juror aside until the panel is
exhausted, without providing a reason, instead ofchal
lenging the juror or showing cause . The practice orig
inally developed as a method ofavoiding the Challenge oOurors Act (1305), which prohibited the Crown from
challenging a juror without showing cause. A similar
practice was formerly used in Pennsylvania. [Cases;
Jury C=:> 122.]
standing by. (14c) 1. The awaiting of an opportunity to
respond, as with assistance. 2. Silence or inaction when
there is a duty to speak or act; esp., the tacit possession
of knowledge under circumstances requiring the pos
sessor to reveal the knowledge. See estoppel by silence
under ESTOPPEL.
standing committee. See COMMITTEE.
Standing Committee on Rules of Practice and Proce
dure. A group of judges, lawyers, and legal scholars
appointed by the Chief Justice of the United States to
advise the Judicial Conference of the United States on
possible amendments to the procedural rules in the
various federal courts and on other issues relating to
the operation of the federal courts. 28 USCA 331.
"[Under 28 USCA 331], the Judicial Conference of the
United States has created a Standing Committee on Rules
of Practice and Procedure and has authorized the appoint
ment from time to time of various advisory committees.
These committees make recommendations regarding
amendments of the rules to thejudicial Conference, which
in turn transmits those recommendations it approves to the
Supreme Court. Under this new plan, as under the machin
ery in effect from 1934 to 1956, the Court retains the
ultimate responsibility for the adoption of amendments to
the rules." 4 Charles Alan Wright & Arthur R. Miller, Fedeml
Practice and Procedure 1007, at 35 (2d ed. 1987).
standing crops. See CROPS.
standing division. See standing vote under VOTE (4).
standing master. See MASTER.
standing mortgage. See interest-only mortgage under
MORTGAGE.
standing mute. See MUTE {2}.
standing offer. See OFFER.
standing order. See ORDER (2).
standing rule. See RULE (3).
standing seised to uses. The holding of title for the
benefit or use of another, such as a relative in consid
eration of blood or marriage . A covenant to stand
seised to uses is a type of conveyance that depends on
the Statute of Uses for its effect. -Often shortened to
seised to uses. See STATUTE OF USES.
standing to sue. See STANDING.
standing vote. See VOTE (4),
stand mute. (16c) 1. (Of a defendant) to refuse to enter
a plea to a criminal charge . Standing mute is treated
as a plea of not guilty. [Cases; Criminal Law C=:>300.]
2. (Of any party) to raise no objections.
standstill agreement. (1934) Any agreement to refrain
from taking further action; esp., an agreement by which
a party agrees to refrain from further attempts to take
over a corporation (as by making no tender offer) for
a specified period, or by which financial institutions
agree not to call bonds or loans when due.
1537
stand trial. (l7c) To submit to a legal proceeding, esp. a
criminal prosecution.
stante matrimonio (stan-tee ma-tr,,-moh-nee-oh).
[Latin] Hist. The marriage remaining undissolved.
staple (stay-p~l). 1. A key commodity such as wool,
leather, tin, lead, butter, or cheese (collectively termed
the staple). 2. Hist. A town appointed by the Crown as
an exclusive market for staple products. See STATUTE
STAPLE. 3. Patents. An unpatented thing or material
that is a component ofa patented product or is used in
a patented process, but also has other practical uses .
Patentees may not gain control ofthe market for staples
through tying agreements. Cf. NONSTAPLE.
Star Chamber. 1. Hist. An English court having broad
civil and criminal jurisdiction at the king's discretion
and noted for its secretive, arbitrary, and oppressive
procedures, including compulsory self-incrimination,
inquisitorial investigation, and the absence ofjuries.
The Star Chamber was abolished in 1641 because ofits
abuses ofpower. Also termed Court ofStar Chamber;
Camera Stellata. 2. (usu. l.e.) Any secretive, arbitrary,
or oppressive tribunal or proceeding.
stare decisis (stahr-ee di-SI-sis or stair-ee), n. [Latin "to
stand by things decided"J (I8c) The doctrine of prec
edent, under which a court must follow earlier judicial
decisions when the same points arise again in litiga
tion. See PRECEDENT; NON QUIETA MOVERE. Cf. RES
JUDICATA; LAW OF THE CASE; (in civil law) jurispru
dence consiante under JURISPRUDENCE. [Cases: Courts
':;::::>89.J
"The rule of adherence to judicial precedents finds its
expression in the doctrine of stare deCisis. This doctrine
is simply that, when a point or prinCiple of law has been
once officially decided or settled by the ruling of a com
petent court in a case in which it is directly and neces
sarily involved, it will no longer be conSidered as open to
examination or to a new ruling by the same tribunal, or by
those which are bound to follow its adjudications, unless
it be for urgent reasons and in exceptional cases." William
M. Lile et aI., Brief Making and the Use of Law Books 321
(3ded.1914).
"The general orthodox interpretation of stare decisis . .. is
stare rationibus decidendis ('keep to the rationes decidendi
of past cases 'J, but a narrower and more literal interpreta
tion is sometimes employed. To appreciate this narrower
interpretation it is necessary to refer ... to Lord Halsbury's
assertion that a case is only authority for what it actually
deCides. We saw that situations can arise in which all that
is binding is the deciSion. According to Lord Reid, such
a situation arises when the ratio decidendi of a previous
case is obscure, out of accord with authority or established
prinCiple, or too broadly expressed." Rupert Cross & J.W.
Harris, Precedent in English Law 100-01 (4th ed. 1991).
horizontal stare decisis. The doctrine that a court, esp.
an appellate court, must adhere to its own prior deci
sions, unless it finds compelling reasons to overrule
itself. [Cases: Courts (>90(1).]
super stare decisis. The theory that courts must follow
earlier court decisions without considering whether
those decisions were correct. -Critics argue that
strict adherence to old decisions can result in grave
injustices and cite as an example the repudiation of state
Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138 (1896)
by Brown v. Board ofEdueation, 347 U.S. 483, 74 S.Ct.
686 (1954).
vertical stare decisis. The doctrine that a court must
strictly follow the decisions handed down by higher
courts within the same jurisdiction. [Cases: Courts
(>91(0.5).]
stare decisis et non quieta movere (stair-ee di-Sl-sis et
non kWI-ee-t" moh-veer-ee). [LatinI To stand by things
decided, and not to disturb settled points. See STARE
DECISIS.
stare enim religioni debet (stair-ee ee-nim ri-lij-ee-oh
nee dee-bet or deb-et). [Latin] Hist. For one ought to
abide by one's solemn obligation.
stare in judicio (stair-ee in joo-dish-ee-oh). [Latin] Hist.
To appear before a tribunal as either a plaintiff or a
defendant.
star paging, n. (1873) 1. A method ofreferring to a page
in an earlier edition ofa book, esp. a legal source . This
method correlates the pagination of the later edition
with that of the earlier (usu. the first) edition. 2. By
extension, the method of displaying on a computer
screen the page breaks that occur in printed documents
such as law reports and law reviews. Also termed star
pagination. -star page, n.
starr (stahr), n. [fr. Latin starrum fr. Hebrew sh'tar "a
writing"] Hist. A Jewish contract (esp. for release ofan
obligation) that Richard I declared to be invalid unless
it was placed in a lawful repository, the largest being in
the king's Exchequer at Westminster. Also termed
starra.
"It is well known that, before the banishment of the Jews
under Edward I, their contracts and obligations were
denominated in our ancient records starra or starrs, from
a corruption of the Hebrew word, sheeay, a covenant ....
These starrs, by an ordinance of Richard the first ... were
commanded to be enrolled and deposited in chests under
three keys in certain places; one, and the most consider
able, of which was in the king's exchequer at Westmin
ster .... [T]he room at the exchequer, where the chests
containing these starrs were kept, was probably called the
starr-chamber, and, when the Jews were expelled from the
kingdom, was applied to the use ofthe king's council, when
sitting in their judicial capacity." 4 William Blackstone, Com
mentaries on the Laws of England 263 n.a (I 769).
stash, vb. To hide or conceal (money or property).
stat. abbr. STATUTE.
state, n. ( |
, vb. To hide or conceal (money or property).
stat. abbr. STATUTE.
state, n. (16c) 1. The political system ofa body of people
who are politically organized; the system of rules by
which jurisdiction and authority are exercised over such
a body of people <separation of church and state>.
Also termed political society. Cf. NATION. [Cases: Inter
national Law ~3.]
"A STATE is a community of persons living Within certain
limits of territory, under a permanent organization which
aims to secure the prevalence of justice by self-imposed
law. The organ of the state by which its relations with
other states are managed is the government." Theodore
D. Woolsey, Introduction to the Study of International Law
36, at 34 (5th ed. 1878).
state action 1538
"A state or political society is an association of human
beings established for the attainment of certain ends by
certain means. It is the most important of all the various
kinds of society in which men unite, being indeed the nec
essary basis and condition of peace, order, and civilisation.
What then is the difference between this and other forms of
association? In what does the state differ from such other
societies as a church, a university, ajointstock company,
or a trade union? The difference is clearly one of function.
The state must be defined by reference to such of its activi
ties and purposes as are essential and characteristic." John
Salmond, Jurisprudence 129 (Glanville L. Williams ed., 10th
ed.1947).
'A state is an institution, that is to say, it is a system of rela
tions which men establish among themselves as a means
of securing certain objects, of which the most fundamental
is a system of order within which their activities can be
carried on. Modern states are territorial; their govern
ments exercise control over persons and things within
their frontiers, and today the whole of the habitable world
is divided between about seventy of these territorial states.
A state should not be confused with the whole commu
nity of persons living on its territory; it is only one among
a multitude of other institutions, such as churches and
corporations, which a community establishes for securing
different objects, though obviously it is one of tremendous
importance; none the less it is not, except in the ideology
of totalitarianism, an allembracing institution, not some
thing from which, or within which, all other institutions
and associations have their being; many institutions, e.g,
the Roman Catholic Church, and many associations, e.g.
federations of employers and of workers, transcend the
boundaries of any single state." J.L. Brierly, The Law of
Nations 118 (5th ed. 1955).
client state. A country that is obliged in some degree
to cede some ofthe control ofits external relations to
some foreign power or powers. -Also termed satel
lite state. Cf. SOVEREIGN STATE.
composite state. A state that comprises an aggregate or
group ofconstituent states.
dependent state. See rlOnsovereign state.
federal state. A composite state in which the sover
eignty ofthe entire state is divided between the central
or federal government and the local governments of
the several constituent states; a union of states in
which the control of the external relations ofall the
member states has been surrendered to a central gov
ernment so that the only state that exists for interna
tional purposes is the one formed by the union. Cf.
confederation ofstates under CONFEDERATION.
imperial state. Archaic. A composite state in which a
common or central government possesses in itself
the entire sovereignty, so that the constituent states
possess no portion ofthis sovereignty.
nonsovereign state. A state that is a constituent part of
a greater state that includes both it and one or more
others, and to whose government it is subject; a state
that is not complete and self-existent. Among other
things, a nonsovereign state has no power to engage
in foreign relations. -Also termed dependent state.
Cf. SOVEREIGN STATE.
part-sovereign state. See SOVEREIGN STATE.
police state. A state in which the political, economic,
and social life ofits citizens is subject to repressive governmental control and arbitrary uses ofpower by
the ruling elite, which uses the police as the instru
ment ofcontrol; a totalitarian state.
receiving state. The country to which a diplomatic
agent or consul is sent by the country represented by
that agent. Cf. sending state. [Cases: Ambassadors and
Consuls
satellite state. See client state.
sending state. The country from which a diplomatic
agent or consul is sent abroad. Cf. receiving state.
[Cases: Ambassadors and Consuls <8=>3.]
simple state. See unitary state.
social-service state. A state that uses its power to create
laws and regulations to provide for the welfare ofits
citizens.
sovereign state. See SOVEREIGN STATE.
unitary state. A state that is not made up ofterritorial
divisions that are states themselves. -Also termed
(archaically) simple state.
2. An institution of self-government within a larger
political entity; esp., one of the constituent parts ofa
nation haVing a federal government <the 50 states>.
[Cases: States 1.] 3. (often cap.) The people of a
state, collectively considered as the party wronged by
a criminal deed; esp., the prosecution as the representa
tive ofthe people <the State rests its case>.
state action. (1893) Anything done by a government;
esp., in constitutional law, an intrusion on a person's
rights (esp. civil rights) either by a governmental entity
or by a private requirement that can be enforced only
by governmental action (such as a racially restrictive
covenant, which requires judicial action for enforce
ment). [Cases: Civil Rights 1325; Constitutional
Law <8=> 1061.]
state-action doctrine. Antitrust. The principle that the
antitrust laws do not prohibit a state's anticompetitive
acts, or official acts directed bya state. Parker v. Brown,
317 U.S. 341, 63 S.Ct. 307 (1943). -Also termed Parker
doctrine. See MIDCAL TEST. [Cases: Antitrust and Trade
Regulation <8=>901.]
state agency. See AGENCY (3).
state-all-facts interrogatory. See identification inter
rogatory under INTERROGATORY.
state appeal. See APPEAL.
state auditor. See AUDITOR.
state bank. See BANK.
state bar association. See BAR ASSOCIATIO:-l.
state body. See state agency under AGENCY (3).
state bond. See BOND (3).
state-compulsion test. (1978) Civil-rights law. The rule
that a state is responsible for discrimination that a
private party commits while acting under the require
ments of state law, as when a restaurant owner is
required by state law to refuse service to minorities.
Adiekes v. S.H. Kress & Co., 398 U.S. 144,90 S.Ct, 1598
1539
(1970). See SYMBIOTIC-RELATIONSHIP TEST; NEXUS
TEST. [Cases: Civil Rights y 1326(4,7).]
state court. See COURT.
state criminal. See CRIMINAL.
stated, adj. 1. Fixed; determined; settled <at the stated
time> <settlement for a stated amount>. 2. Expressed;
declared <stated facts>.
stated account. See account stated under ACCOUNT.
stated capital. See CAPITAL.
State Department. See DEPARTMENT OF STATE.
stated-income loan. See LOAN.
stated interest rate. See nominal rate under INTEREST
RATE.
stated meeting. See regular meeting under MEETING.
stated rate. See nominal rate under INTEREST RATE.
stated term. See general term under TERM (5).
stated value. See PAR VALUE.
state government. See GOVERNMENT.
state jurisdiction. See JURISDICTION.
State Justice Institute. A nonprofit federal corporation
charged with improving judicial administration in state
courts. _ It was created by the State Justice Institute Act
of 1984.42 USCA 10701-10713. -Abbr. SJI.
state law. (18c) A body oflaw in a particular state con
sisting of the state's constitution, statutes, regulations,
and common law. Cf. FEDERAL LAW.
stateless person. Int'llaw. A natural person who is not
considered a national by any country. -The Convention
Relating to Status of Stateless Persons (1954) provides
these people with certain protections and obliges them
to abide by the laws of the country where they reside.
statement. (18c) 1. Evidence. A verbal assertion or
nonverbal conduct intended as an assertion. [Cases:
Evidence 2. A formal and exact presenta
tion of facts. Also termed (for plaintiff) statement
ofcause ofaction. 3. Criminal procedure. An account
ofa person's knowledge ofa crime, taken by the police
during their investigation of the offense. Cf. CONFES
SION.
consonant statement. (1889) A witness's previous dec
1aration, testified to by a person to whom the declara
tion was made and allowed into evidence only after
the witness's testimony has been impeached. -This
type of evidence would, but for the impeachment of
the witness, be inadmissible hearsay. Cf. prior consis
tent statement. [Cases: Witnesses C::)414(2).]
false statement. (I8c) 1. An untrue statement know
ingly made with the intent to mislead. See PERJURY.
2. Anv one of three distinct federal offenses: (1) falsi
fying 'or concealing a material fact by trick, scheme,
or device; (2) making a false, fictitious, or fraudu
lent representation; and (3) making or using a false
document or writing. 18 USCA 1001. [Cases: Fraud
Y68.l0(1).j statement of defense
financial statement. See FINANCIAL STATEMENT.
incriminating statement. (1896) A statement that tends
to establish the guilt of someone, esp. the person
making it.
prior consistent statement. (1883) A witness's earlier
statement that is consistent with the witness's testi
mony at trial. - A prior consistent statement is not
hearsay if it is offered to rebut a charge that the testi
mony was improperly influenced or fabricated. Fed.
R. Evid. 801(d)(1)(B). Cf. consonant statement.
prior inconsistent statement. (1885) A witness's earlier
statement that conflicts with the witness's testimony
at trial. -In federal practice, extrinsic evidence of
an unsworn prior inconsistent statement is admis
sible -if the witness is given an opportunity to
explain or deny the statement -for impeachment
purposes only. Fed. R. Evid. 613(b). Sworn statements
may be admitted for all purposes. Fed. R. Evid. 80l(d)
(1)(A).
sworn statement. (1831) ]. A statement given under
oath; an affidavit. Cf. AFFIDAVIT; DECLARATION (8).
[Cases: Affidavits C'c:~) 1.] 2. A contractor-builder's
listing of suppliers and subcontractors, and their
respective bids, required by a lending institution for
interim financing.
voluntary statement. (l817) A statement made without
the influence of duress, coercion, or inducement.
Statement and Account Clause. (1975) 'The clause ofthe
U.S. Constitution requiring the regular publication of
the receipts and expenditures of the federal govern
ment. US. Const. art. I, 9, cl. 7. [Cases: United States
Y44.]
statement of account. 1. A report issued periodically
(usu. monthly) by a bank to a customer, providing
certain information on the customer's account, includ
ing the checks drawn and cleared, deposits made,
charges debited, and the account balance. -Also
termed bank statement. See ACCOUNT (4). [Cases: Banks
and Banking 2. A report issued periodically
(usu. monthly) by a creditor to a customer, providing
certain information on the customer's account, includ
ing the amounts billed, credits given, and the balance
due. -Also termed account statement.
statement of affairs. 1. STATEMENT OF FINANCIAL
AFFAIRS. 2. A balance sheet showing immediate liquida
tion values (rather than historical costs), usu. prepared
when insolvency or bankruptcy is imminent.
statement ofcause ofaction. See STATEMENT (2).
statement of claim. 1. COMPLAINT (1). 2. English law.
A plaintiff's initial pleading in a civil case; DECLARA
TION (7).
statement ofcondition. See BALANCE SHEET.
statement of confession. See CONFESSION OF
JUDGMENT.
statement ofdefense.lbe assertions by a defendant; esp.,
in England, the defendant's answer to the plaintiff's
statement ofclaim.
1540 statement of fact
statement of fact. A form of conduct that asserts or
implies the existence or nonexistence of a fact . The
term includes not just a particular statement that a
particular fact exists or has existed, but also an asser
tion that, although perhaps expressed as an opinion,
implies the existence ofsome fact or facts that have led
the assertor to hold the opinion in question. See affir
mative testimony under TESTIMONY. [Cases: Criminal
Law C:::='448; Evidence C:::='471, 505.]
statement offacts. (18c) A party's written presentation of
the facts leading up to or surrounding a legal dispute,
usu. recited toward the beginning ofa brief. Cf. STATE
MENT OF THE CASE.
"The statement of facts is another of those critical parts
of the brief .... Two principles are at war in drafting the
statement of facts. First, judges want and some circuit
rules require a nonargumentative, 'fair summary without
argument or comment.' Conversely, you want a statement
of facts that persuades the |
a nonargumentative, 'fair summary without
argument or comment.' Conversely, you want a statement
of facts that persuades the judges to rule for you as soon
as they finish reading it. Satisfying both ends requires
some balancing." David G. Knibb, Federal Court ofAppeals
Manual 31.7, at 549 (4th ed. 2000).
agreed statement offacts. A narrative statement of
facts that is stipulated to be correct by the parties
and is submitted to a tribunal for a ruling . When
the narrative statement is filed on appeal instead of a
report of the trial proceedings, it is called an agreed
statement on appeal. [Cases: Appeal and Error C:::='
845(2); Stipulations C:::=' 14(10), 18(7).]
statement offinancial affairs. Bankruptcy. A document
that an individual or corporate debtor must file to
answer questions about the debtor's past and present
financial status. -Also termed statement ofaffairs.
[Cases: BankruptcyC=)2321.]
statement offinancial condition. See BALANCE SHEET.
statement offinancial position. See BALANCE SHEET.
statement of income. See INCOME STATEMENT.
statement ofintention. Bankruptcy. A preliminary state
. ment filed by an individual debtor in a chapter 7 case, in
which the debtor details, among other things, whether
property of the bankruptcy estate securing any debt will
be retained or surrendered and whether the property is
claimed as exempt . The statement must be filed on or
before the date ofthe first creditors' meeting or within
30 days after the bankruptcy petition is filed, whichever
is earlier. 11 USCA 521 (a)(2). [Cases: BankruptcyC='
2851,3022,3034,3415.1.]
statement of particulars. See BILL OF PARTICULARS.
statement ofprinciple. In legislative drafting, a sentence
or paragraph that explains the legislature's purpose in
passing a statute . Although a statement of principle
often resembles a preamble (usu. both do not appear
in a Single statute), it differs in that it typically appears
in a numbered section of the statute. [Cases: Statutes
statement ofprior-art references. See INFORMATION
DISCLOSURE STATEMENT.
statement ofthe case. In an appellate brief, a short review
of what has happened procedurally in the lawsuit and how it reached the present court. elhe statement intro
duces the reviewing court to the case by reciting the
facts, procedures, decisions of the court or courts below
as they are relevant to the appeal, and the reasons for
those decisions. Also termed proceedings below. Cf.
STATEMENT OF FACTS. [Cases: Appeal and Error
757; Federal Courts C:::='713.]
statement of use. See amendment to allege use under
TRADEMARK-APPLICATION AMENDMENT.
statement of utility. Patents. The portion of a patent
application disclosure statement that explains how the
invention is useful. [Cases: Patents C-:::>99.]
statement of work. A contractual provision or exhibit
that defines what one party (e.g., the seller) is going
to do for the other (e.g., the buyer). The statement
ofwork often covers such terms as (1) inspection and
acceptance, (2) quality-assurance requirements, (3)
packing and marking, (4) data requirements, and (5)
training. There are generally two types of specifica
tions in a statement ofwork: a performance specifica
tion establishing the minimum requirements for items
to be supplied, and a design specification establishing
the methods to be used in meeting those minimum
requirements. Also termed statement-oj-work
clause. Abbr. SOW.
state of art. See STATE OF THE ART.
state officer. See OFFICER (1).
state of mind. (17c) 1. The condition or capacity of a
person's mind; MENS REA. 2. Loosely, a person's reasons
or motives for committing an act, esp. a criminal act.
state-of-mind exception. (1949) Evidence. The principle
that an out-of-court declaration of an existing motive
is admissible, even when the declarant cannot testify in
person. This principle is an exception to the general
rule that hearsay is inadmissible. [Cases: Criminal Law
C:::='419(2.20); Evidence C=:268.J
state of nature. (16c) The lack ofa politically organized
SOciety. _ The term is a hypothetical construct for the
period in human history predating any type ofpoliti
cal society.
"[Wle may make use ofthe contrast, familiar to the philoso
phy of the seventeenth and eighteenth centuries, between
the civil state and the state of nature. This state of nature is
now commonly rejected as one of the fictions which flour
ished in the era of the social contract, but such treatment
is needlessly severe. The term certainly became associ
ated with much false or exaggerated doctrine touching
the golden age, on the one hand, and the bellum omnium
contra omnes of Hobbes, on the other, but in itself it nev
ertheless affords a convenient mode for the expression of
an undoubted truth. As long as there have been men, there
has probably been some form of human society. The state
of nature, therefore, is not the absence of SOCiety, but the
absence of a society so organised on the basis of physical
force as to constitute a state. Though human society is
coeval with mankind, the rise of political society, properly
so called, is an event in human history." John Salmond,
Jurisprudence 103-04 (Glanville L. Williams ed., 10th ed.
1947).
state ofthe art. (1910) Products liability. The level of
pertinent scientific and technical knowledge existing
1541
at the time of a product's manufacture, and the best
technology reasonably available at the time the product
was sold. Also termed state ofart. [Cases: Products
Liability C=~178, 378.J state-of-the-art, adj.
"While the statutes in effect in some jurisdictions speak in
terms of a state of the art defense, statutes in other juris
dictions provide that state of the art evidence is admissible
or may be considered by the trier of fact by statute, and
that in determining whether a product was in a defective
condition or unreasonably dangerous at the time It left the
control ofthe manufacturer or seller, consideration is given
to the state of scientific and technical knowledge avail
able to the manufacturer or seller at the time the product
was placed on the market, and to the customary designs,
methods, standards, and techniques of manufacturing,
inspecting, and testing used by other manufacturers or
sellers of similar products." 63AAm,Jur, 2d Products Liabil
ity 1319, at 472 (2008),
state ofthe case. The posture oflitigation as it develops,
as in discovery, at trial, or on appeal.
State of the Union. See Presidential message under
MESSAGE.
state ofwar. A situation in which war has been declared
or armed conflict is in progress. See WAR. [Cases: War
and National EmergencyC=7.]
state paper. l. A document prepared by or relating to a
state or national government and affecting the admin
istration ofthat government in its political or interna
tional relations. 2. A newspaper officially designated for
the publication of public statutes, resolutions, notices,
and advertisements. [Cases: Newspapers C=1-7.J
state paper office. Hist. An office established in London
in 1578, headed by the Clerk ofthe Papers, to maintain
custody of state documents.
state police. (1843) The department or agency of a state
government empowered to maintain order, as by inves
tigating and preventing crimes, and making arrests.
state police power. (1849) The power ofa state to enforce
laws for the health, welfare, morals, and safety ofits
citizens, if enacted so that the means are reasonablv
calculated to protect those legitimate state interests ..
state religion. See RELIGION.
state's attorney. l. See DISTRICT ATTORNEY. 2. See PROS
ECUTOR (1).
state seal. See great seal (2) under SEAL.
state secret. (1822) A governmental matter that would be
a threat to the national defense or diplomatic interests
ofthe United States ifrevealed; information possessed
by the government and of a military or diplomatic
nature, the disclosure of which would be contrary to
the public interest. -State secrets are privileged from
disclosure by a witness in an ordinary judicial proceed
ing. Also termed governmental secret; government
secret. See executive privilege & state-secrets privilege
under PRIVILEGE (3). [Cases: Privileged Communica
tions and Confidentiality C~.'360.1
state-secrets privilege. See PRIVILEGE (3).
state's evidence. See EVIDENCE.
state's evidence, turn. See TUR:--I STATE'S EVIDENCE. Stationery Office
state sovereignty. (I8c) The right of a state to self-gov
ernment; the supreme authority exercised by each state.
[Cases: States C= 1.]
state-sponsored terrorism. See TERRORISM.
states' rights. (1839) Under the Tenth Amendment,
rights neither conferred on the federal government nor
forbidden to the states. [Cases: States (;:::-)4.16.]
, State Street Bank. Patents. A landmark 1998 decision in
i the Federal Circuit that made it easier to get patents on
! computer software, and also rejected the long-accepted
notion that business methods are per se unpatentable.
The court struck down per se rules against patent
ing mathematical algOrithms (the soul of software),
fOCUSing instead on whether the ultimate result was
useful, concrete, and tangible in practice. State Street
Bank & Trust C. v. Signature Fin. Group, Inc., 149 F.3d , 1368 (Fed. Cir. 1998). [Cases: Patents C-~6.]
i state's ward. See ward ofthe state under WARD.
state tax. See TAX.
state terrorism. See TERRORISM,
state the question. Parliamentary procedure. (Of the
i chair) to formally state a motion as in order and ready
for consideration. Cf. PUT THE QUESTION.
state trial. See TRIAL.
stateway, n. A governmental policy or law. - This term
is formed on the analogy offolkway.
statim (stay-tim). [Latin] Hist. Immediately; at the
earliest possible time when an act might lawfully be
completed.
station. 1. Social position or status. See STATUS. 2. A place
where military duties are performed or military goods
are stored. 3. A headquarters, as of a police depart
ment. 4. A place where both freight and passengers
are received for transport or delivered after transport.
[Cases: Railroads C=225.] 5. Civil law. A place where
ships may safely travel. [Cases: Shipping C=11.]
Stationers' Company. Hist. An association ofstationers
and their successors, formed in London in 1403 and
granted a royal charter in 1557, entrusted, by order of
the Privy Council, with censorship ofthe press. - This
company was the holder ofthe first rights we associate
today with copyright.
Stationers' Hall. Hist. The hall of the Stationers'
Company, established in London in 1553, at which
every person claiming a copyright was reqUired to
register as a condition precedent to filing an infringe
ment action.
"Accordingly 'Entered at Stationers' Hall' on the title page
of books was a form of warning to pirates that the owner
of the copyright could and might sue. This requirement
disappeared with the Copyright Act, 1911." David M. Walker,
The Oxford Companion to Law 1182 (1980).
Stationery Office. Hist. English law. A government office
established in 1786 as a department of the treasury, to
supply government offices (including Parliament) with
stationery and books, and to print and publish govern
1542 stationhouse
ment papers. -Also termed Her Majesty's Stationery
Office.
stationhouse. 1. A police station or precinct. 2. The
lockup at a police precinct.
stationhouse bail. See cash bail under BAIL (1).
station-in-life test. Family law. An analysis performed
by a court to determine the amount of money reason
ably needed to maintain a particular person's accus
tomed lifestyle . The elements were first set forth in
Canfield vs. Security-First Nat'l Bank, 87 P.2d 830, 840
(Cal. 1939). The court takes into account the person's
station in society and the costs ofthe person's support
in that station, including housing and related expenses,
medical care, further education, and other reason
ably necessary expenses, but not including luxuries
or extravagant expenditures. See NECESSARIES (1), (2).
[Cases: Divorce C='240(2); Husband and Wife C='
19.]
statist (stay-tist). 1. Archaic. A statesman; a politician.
2. A statistician.
statistical-decision theory. (1966) A method for deter
mining whether a panel ofpotential jurors was selected
from a fair cross section ofthe community, by calculat
ing the probabilities of selecting a certain number of
jUroL from a particular group to analyze whether it is
statistically probable that the jury pool was selected by
mere chance . This method has been criticized because
a pool of potential jurors is not ordinarily selected by
mere chance; potential jurors are disqualified for many
legitimate reasons. See FAIR-CROSS-SECTION REQUIRE
MENT; ABSOLUTE DISPARITY; COMPARATIVE DISPARITY;
DUREN TEST. [Cases: Jury C='33(1.1, 1.2).]
statuliber (stach-;)-h-b;)r), n. [Latin] Roman law. A
person whose freedom under a will is made conditional
or postponed; a person who will be free at a particu
lar time or when certain conditions are met. -Also
written statu liber |
postponed; a person who will be free at a particu
lar time or when certain conditions are met. -Also
written statu liber (stay-t[y]00 h-b;)r).
"The statuliber is one who has freedom arranged to take
effect on completion of a period or fulfillment of a con
dition. Men become statuliberi as a result of an express
condition, or by the very nature of the case. The meaning of
'express condition' presents no problem. The status arises
from the very nature of the case when men are manumitted
for the purpose of defrauding a creditor; for so long as it
is uncertain whether the creditor will use his right, the
men remain statuliberi, since fraud is taken in the lex Aelia
Sentia to involve actual damage." Digest ofjustinian 40.7.1
(Paul, ad Sabinum 5).
status. (I7c) 1. A person's legal condition, whether
personal or proprietary; the sum total of a person's
legal rights, duties, liabilities, and other legal relations,
or any particular group ofthem separately considered
<the status of a landowner>. 2. A person's legal condi
tion regarding personal rights but excluding propri
etary relations <the status of a father> <the status of
a wife>. 3. A person's capacities and incapacities, as
opposed to other elements ofpersonal status <the status
of minors>. 4. A person's legal condition insofar as it
is imposed by the law without the person's consent, as opposed to a condition that the person has acquired by
agreement <the status of a slave>.
"By the status (or standing) of a person is meant the
position that he holds with reference to the rights which are
recognized and maintained by the law -in other words,
his capacity for the exercise and enjoyment of legal rights."
James Hadley, Introduction to Roman Law 106 (1881).
"The word 'status' itself originally signified nothing more
than the position of a person before the law. Therefore,
every person (except slaves, who were not regarded as
persons, for legal purposes) had a status. But, as a result
of the modern tendency towards legal equality formerly
noticed, differences of status became less and less
frequent, and the importance of the subject has greatly
diminished, with the result that the term status is now
used, at any rate in English Law, in connection only with
those comparatively few classes of persons in the commu
nity who, by reason of their conspicuous differences from
normal persons, and the fact that by no decision of their
own can they get rid of these differences, require separate
consideration in an account of the law. But professional or
even political differences do not amount to status; thus
peers, physicians, clergymen of the established Church,
and many other classes of persons, are not regarded as
the subjects of status, because the legal differences which
distinguish them from other persons, though substantial,
are not enough to make them legally abnormal. And land
owners, merchants, manufacturers, and wage-earners are
not subjects of the Law of Status, though the last-named
are, as the result of recent legislation, tending to approach
that position." Edward Jenks, The Book of English Law 109
(P.B. Fairest ed., 6th ed. 1967).
status, law of. See LAW OF STATUS.
STAT-USA. A unit in the U.S. Department ofCommerce
responsible for disseminating economics and trade
information compiled by other federal agencies to busi
nesses and individuals through subscription services
and federal depository libraries . STAT-USA is an
agency within the Department's Economics and Sta
tistics Administration.
status crime. St:e CRIME.
status de manerio (stay-t;)s dee m;)-neer-ee-oh). [Law
Latin "the state of a manor"] Hist. The assembly of
tenants to attend the lord's court.
status offender. See OFFENDER.
status offense. See OFFENSE (1).
status-offense jurisdiction. See JURISDICTION.
status ofirremovability. Hist. A pauper's right not to be
removed from a parish after residing there for one year.
Cf. SETTLEMENT (6).
status quo (stay-t;)s or stat-;)s kwoh). [Latin "statt: in
which"] (1807) The situation that currently exists.
status quo ante (stay-t;)s kwoh an-tee). [Latin "state in
which previously"] (1877) The situation that existed
before something else (being discussed) occurred.
statutable (stach-;)-t;)-b;)l), adj. (I7c) 1. Prescribed or
authorized by statute. 2. Conforming to the legislative
requirements for quality, size, amount, or the like. 3.
(Ofan offense) punishable by law. See STATUTORY.
statute. (I4c) A law passed by a legislative body; specif.,
legislation enacted by any lawmaking body, including
legislatures, administrative boards, and municipal
1543 statute
courts. -The term act is interchangeable as a synonym.
For each of the subentries listed below, act is some
times substituted for statute. -Abbr. S.; stat. [Cases:
Statutes
"[Wle are not justified in limiting the statutory law to those
rules only which are promulgated by what we commonly
call 'legislatures.' Any positive enactment to which the
state gives the force of a law is a 'statute,' whether it has
gone through the usual stages of legislative proceedings,
or has been adopted in other modes of expressing the
will of the people or other sovereign power of the state. In
an absolute monarchy, an edict of the ruling sovereign is
statutory law. Constitutions, being direct legislation by the
people, must be included in the statutory law, and indeed
they are examples of the highest form that the statute law
can assume. Generally speaking, treaties also are statutory
law, because in this country, under the provisions of the
United States Constitution, treaties have not the force of
law until so declared by the representatives of the people."
William M. Lile et aI., BriefMaking and the Use ofLaw Books
8 (3d ed. 1914).
affirmative statute. (16c) A law requiring that some
thing be done; one that directs the doing of an act.
Cf. negative statute.
always-speaking statute. See speaking statute.
alltidejiciellcy statute. See antideficiency legislation
under LEGISLATION.
codifying statute. (1908) A law that purports to be
exhaustive in restating the whole ofthe law on a par
ticular topic, including prior caselaw as well as leg
islative provisions. -Courts generally presume that
a codifying statute supersedes prior caselaw. Cf. con
solidating statute.
compiled statutes. Laws that have been arranged by
subject but have not been substantively changed;
COMPILATION (2). Cf. revised statutes.
''The term 'compiled statutes' is properly applied to a
methodical arrangement, without revision or reenact
ment, of the existing statutes of a State, all the statutes
on a given subject being collected in one place. The work
is usually performed by private persons; and the former
statutes, as they were before the compilation, remain the
authority." Frank Hall Childs, Where and How to Find the
Law 12 (1922).
consolidating statute. (1886) A law that collects the
legislative provisions on a particular subject and
embodies them in a Single statute, often with minor
amendments and drafting improvements . Courts
generally presume that a consolidating statute leaves
prior case1aw intact. Cf. codifying statute.
"A distinction of greater importance in this field is that
between consolidating and codifying statutes. A consoli
dating statute is one which collects the statutory provisions
relating to a particular topic, and embodies them in a single
Act of Parliament, making only minor amendments and
improvements. A codifying statute is one which purports
to state exhaustively the whole of the law on a particular
subject (the common law as well as previous statutory pro
visions). .. The importance of the distinction lies in the
courts' treatment of the previous case law, the existence of
special procedural provisions with regard to consolidating
statutes and the existence of a presumption that they do
not change the law." Rupert Cross, Statutory Interpretation
5 (1976). construction statute. A legislative directive included in
a statute, intended to guide or direct a court's inter
pretation of the statute. _ A construction act can, for
example, be a simple statement such as "The word
'week' means seven consecutive days" or a broader
directive such as "Words and phrases are to be read
in context and construed according to the rules of
grammar and common usage. "Vords and phrases
that have acquired a technical or particular meaning,
whether by legislative definition or otherwise, are to
be construed accordingly." [Cases: Statutes (:::> 179.]
criminal statute. (18c) A law that defines, classifies, and
sets forth punish ment for one or more specific crimes.
See PENAL CODE. [Cases: Statutes C='241.]
curative statute.!. An act that corrects an error in a
statute's original enactment, usu. an error that inter
feres with interpreting or applying the statute. Cf.
validating statute. [Cases: Statutes (''-='236,278.11.]
2. See remedial statute.
declaratory statute. (17c) Alaw enacted to clarify prior
law by reconciling conflicting judicial decisions or
by explaining the meaning ofa prior statute. -Also
termed expository statute. [Cases: Statutes C=>236,
278.11.]
directory statute. (1834) A law that indicates only what
should be done, with no proviSion for enforcement.
Cf. mandatory statute: permissive statute. [Cases:
Statutes C=>227.]
disabling statute. (I8c) A law that limits or curbs
certain rights.
enabling statute. (18c) A law that permits what was
previously prohibited or that creates new powers;
esp., a congressional statute conferring powers on an
executive agency to carry out various delegated tasks.
[Cases: Administrative Law and Procedure C-::>305;
Statutes (:':::>219.]
expository statute. See declaratory statute.
general statute. (16c) A law pertaining to an entire
community or all persons generally. -Also termed
public statute. See PUBLIC LAW (2). [Cases: Statutes
C=>68.]
imperfect statute. (1847) A law that prohibits, but does
not render void, an objectionable transaction. -Such
a statute provides a penalty for disobedience without
depriving the violative transaction of its legal effect.
local statute. 1. See LOCAL LAW (1). 2. See LOCAL I,AW
(2).
mandatory statute. (18c) A law that requires a course
ofaction as opposed to merely permitting it. Cf. direc
tory statute; permissive statute. [Cases: Statutes
227.]
model statute. See uniform statute.
negative statute. (16c) A law prohibiting something;
a law expressed in negative terms. Cf. affirmative
statute.
statute 1544
nonclaim statute. (18c) 1. STATUTE OF LIMITATIONS.
2. A law that sets a time limit for creditors to bring
claims against a decedent's estate . Unlike a statute
of limitations, a nonclaim statute is usu. not subject
to tolling and is not waivable. [Cases: Executors and
Administrators C-:::'223, 225.]
organic statute. (1856) A law that establishes an admin
istrative agency or local government. -Also termed
organic act. Cf. ORGANIC LAW.
penal statute. (16c) A law that defines an offense and
prescribes its corresponding fine, penalty, or pun
ishment. -Also termed penal law; punitive statute.
[Cases: Statutes C:=>241.]
"It is a familiar and wellsettled rule that penal statutes are
to be construed strictly, and not extended by implications,
intendments, analogies, or equitable considerations. Thus,
an offense cannot be created or inferred by vague implica
tions. And a court cannot create a penalty by construction,
but must avoid it by construction unless it is brought within
the letter and the necessary meaning of the act creating
it." Henry Campbell Black, Handbook on the Construction
and Interpretation of the Laws 287 (1896).
permanent statute. See perpetual statute.
permissive statute. A statute that allows certain acts
but does not command them. A permissive statute
creates a license or privilege, or allows discretion in
performing an act. Cf. directory statute; mandatory
statute. [Cases: Statutes 0227.]
perpetual statute. (16c) A law containing no provision
for repeal, abrogation, or expiration. -Also termed
permanent statute. Cf. temporary statute (1).
personal statute. Civil law. A law that primarily affects
a person's condition or status (such as a statute
relating to capacity or majority) and affects property
only incidentally.
preceptive statute. A statute that is prescriptive, general,
definite, and complete. In form, a preceptive statute
is similar to a rule.
private statute. See special statute.
prohibitive statute. A statute that forbids all acts that
disturb society's peace or forbids certain acts on other
grounds. An example ofa noncriminal prohibitive
statute is one forbidding the execution of a mentally
retarded criminal because a person who lacks mental
capacity cannot understand the reason for the pun
ishment.
prospective statute. (1831) A law that applies to future
events.
public statute. See PUBLIC LAW (2).
punitive statute. See penal statute.
quasi-statute. An executive or administrative order, or
a regulation promulgated by a governmental agency,
that has the binding effect of legislation. [Cases:
Administrative Law and Procedure C:=>417.]
"Quasi-Stat |
effect of legislation. [Cases:
Administrative Law and Procedure C:=>417.]
"Quasi-Statutes. Executive and administrative orders by
the government as well as military regulations, while not
called statutes, not originating as statutes usually do, are,
nevertheless, in force and effect, laws. Copies of general
orders and proclamations are issued to the public press for publication, but military regulations may for public reasons
be kept private." Jesse Franklin Brumbaugh, Legal Reason
ing and Briefing 223 (1917).
real statute. Civil law. A law primarily affecting the
operation, status, and condition of property, and
addressing persons only incidentally.
recording statute. See RECORDING ACT.
reference statute. A law that incorporates and adopts
by reference provisions ofother laws. [Cases: Statutes
C:=>51.]
remedial statute. (18c) A law that affords a remedy.
Also termed curative statute. [Cases: Statutes C:=>236,
278.11.]
repealing statute. A statute that revokes, and some
times replaces, an earlier statute . A repealing statute
may work expressly or by implication. [Cases: Statutes
0151, 158.]
restraining statute. See disabling statute.
retroactive statute. See RETROACTIVE LAW.
retrospective statute. See RETROACTIVE LAW.
revised statutes. (18c) Laws that have been collected,
arranged, and reenacted as a whole by a legisla
tive body. -Abbr. Rev. Stat.; R.S. See CODE (1). Cf.
compiled statutes. [Cases: Statutes C:=> 144-148,
231.]
revival statute. (1899) A law that provides for the
renewal of actions, of wills, and of the legal effect
of documents . A revival statute cannot resurrect
a time-barred criminal prosecution. Stegner v. Cali
fornia, 539 U.S. 607, 123 S.Ct. 2446 (2003).
severable statute. (1930) A law that remains operative
in its remaining provisions even if a portion of the
law is declared unconstitutional. [Cases: Statutes (::::;,
64.]
single-act statute. See LONG-ARM STATUTE.
speaking statute. (2000) A statute to be interpreted in
light of the understanding of its terms prevailing at
the time of interpretation. -Also termed always
speaking statute.
special statute. (17c) A law that applies only to specific
individuals, as opposed to everyone. -Also termed
private statute. [Cases: Statutes C:=>77-104.]
"It is ancient wisdom, tracing back at least as far as the
Roman taboo against the privilegium, that laws ought
to be general, they ought to be addressed, not to par
ticular persons, but to persons generally or to classes of
persons (say, 'all householders'). Accordingly, a number of
American states have inserted in their constitutions pro
hibitions against 'private or special' statutes. These have
given rise to endless difficulties."' Lon L. Fuller, Anatomy of
the Law 102-03 (1968).
split-level statute. (1980) A law that includes officially
promulgated explanatory materials in addition to its
substantive provisions, so that courts are left with two
levels ofdocuments to construe.
statute ofdescent and distribution. See STATUTE OF
DISTRIBUTION.
1545 statute of frauds
statute ofdistribution. See STATUTE OF DISTRIBU
TION.
statute offrauds. See STATUTE OF FRAUDS.
temporary statute. (17c) I. A law that specifically
provides that it is to remain in effect for a fixed,
limited period. Cf. perpetual statute. [Cases: Statutes
C=> 172.] 2. A law (such as an appropriation statute)
that, by its nature, has only a Single and temporary
operation.
uniform statute. A law drafted with the intention that
it will be adopted by aU or most of the states; esp.,
UNIFORM LAW. -Also termed model statute; uniform
act. Cf. MODEL ACT. [Cases: Statutes (>='226.]
validating statute. (1882) A law that is amended either
to remove errors or to add provisions to conform to
constitutional requirements. -Also termed valida
tion statute. Cf. curative statute. [Cases: Statutes
52,236.]
statute book. (16c) A bound collection of statutes, usu.
as part of a larger set of books containing a complete
body of statutory law, such as the United States Code
Annotated.
statute fair. Hist. A fair during which the fixed labor
rates were announced and laborers ofboth sexes offered
themselves for hire. Also termed mop fair.
statute law. See STATUTORY LAW.
statute-making. See LEGlSLATIO~ (1).
statute merchant. Hist. 1. (cap.) One oftwo 13th-century
statutes establishing procedures to better secure and
recover debts by, among other things, providing for a
commercial bond that, if not timely paid, resulted in
swift execution on the debtor's lands, goods, and body.
13 Edw. I, ch. 6 (1283); 15 Edw. I, ch. 6 (1285). These
statutes were repealed in 1863. Also termed pocket
judgment. 2. The commercial bond so established. Cf.
STATUTE STAPLE.
"It is not a little remarkable that our common law knew no
process whereby a man could pledge his body or liberty
for payment of a debt .... Under Edward I, the tide turned.
In the interest of commerce a new form of security, the
so-called 'statute merchant: was invented, which gave the
creditor power to demand the seizure and imprisonment
of his debtor's body." 2 Frederick Pollock & Frederic W.
Maitland, The History of English Law Before the Time of
Edward /596-97 (2d ed. 1899).
statute mile. See MILE (1).
Statute of Accumulations. Hist. A statute forbidding
the accumulation, beyond a certain period, ofproperty
settled by deed or will. 39 & 40 Geo. 3, ch. 98 (1800).
Statute ofAllegiance de Facto. Hist. A statute requiring
subjects to give allegiance to the actual (de facto) king,
and protecting them in so doing. 11 Hen. 7, ch. 1.
Statute of Amendments and Jeofails (jef-aylz). Hist.
One of several 15th-and 16th-century statutes allowing
a party who acknowledges a pleading error to correct it.
1 Hen. 5, ch. 5 (1413); 32 Hen. 8, ch. 30 (1540); 37 Hen.
8, ch. 6 (1545). See JEOFAIL. Statute of Anne. Hist. English law. 1. The Copyright
Act of 1709, which first granted copyright protection
to book authors. 8 Anne, ch. 19 (1709). 2. The statute
that modernized the English bankruptcy system and
first introduced the discharge of the debtor's existing
debts. 4 Anne, ch. 17 (1705).
statute of bread and ale. See ASSISA PANIS ET CEREVI
SlAB.
statute of distribution. (I8c) A state law regulating the
distribution ofan estate among an intestate's heirs and
relatives. Historically, the statute specified separate,
and often different, patterns for distributing an intes
tate's real property and personal property. Generally,
land descended to the heirs and personalty descended
to the next of kin. Also termed statute ofdescent
and distribution. [Cases: Descent and Distribution
1-43.]
Statute of Elizabeth. Hist. English law. A 1571 penal
statute that contained provisions against conveyances
made to defraud creditors. 13 Eliz., ch. 5 . The funda
mental provisions of this statute formed the basis for
modern laws against fraudulent conveyances.
statute of frauds. (18c) 1. Hist. (cap.) A 1677 English
statute that declared certain contracts judicially unen
forceable (but not void) if they were not committed
to writing and Signed by the party to be charged.
The statute was entitled "An Act for the Prevention of
Frauds and Perjuries" (29 Car. 2, ch. 3). -Also termed
Statute ofFrauds and Perjuries.
"The best known, and until recently, most important.
Act prescribing written formalities for certain contracts
only required that those contracts should be evidenced in
writing, or to put it another way, that the contract would
be unenforceable in a Court (but not \loid) in the absence
of writing. This was the Statute of Frauds 1677, sections 4
and 17 of which required written evidence of a somewhat
curious list of contracts. Today, all that is left of these pro
visions is that part of section 4, which requires contracts
of guarantee to be evidenced in writing, and section 40 of
the Law of Property Act 1925 (replacing another part of
section 4), which deals with contracts of sale of an interest
in land." P.S. Atiyah. An Introduction to the Law ofContract
141 (3d ed. 1981).
2. A statute (based on the English Statute of Frauds)
deSigned to prevent fraud and perjury by requiring
certain contracts to be in writing and signed by the
party to be charged . Statutes of frauds traditionally
apply to the following types of contracts: (1) a contract
for the sale or transfer of an interest in land, (2) a
contract that cannot be performed within one year of
its making, (3) a contract for the sale of goods valued at
$500 or more, (4) a contract of an executor or adminis
trator to answer for a decedent's debt, (5) a contract to
guarantee the debt or duty of another, and (6) a contract
made in consideration of marriage. UCC 2-201.
Abbr. S/F; SOF. [Cases: Frauds, Statute of~'"')1-118.1
"[Tlhe primary theory of statutes of frauds, past and
present, is that they are means to the end of preventing
successful courtroom perjury. The means to this end is
simply the requirement of a writing signed by the party to
be charged.... [Blut the statute of frauds writing require
ment is ... so far from any kind of guarantee against
1546 Statute of Frauds and Perjuries
successful perjury that it is inappropriate even to call it
a means to fraud prevention at all." 1 james j. White &
Robert S. Summers, Uniform Commercial Code 2-8, at
82 (4th ed. 1995).
Statute ofFrauds and Perjuries. See STATUTE OF FRAUDS
(1).
Statute ofGloucester (glos-tJr). Hist. English law. A 1278
statute providing for the award ofcosts in legal actions.
6 Edw., ch. 1.
statute ofjeofails (jef-aylz). A law permitting a litigant
to acknowledge an error in a pleading and correct or
amend the pleading without risking dismissal of the
claim. See JEOFAIL.
statute of limitations. (lSc) 1. A law that bars claims
after a specified period; speci., a statute establishing
a time limit for suing in a civil case, based on the date
when the claim accrued (as when the injury occurred
or was discovered) . The purpose ofsuch a statute is to
require diligent prosecution ofknown claims, thereby
providing finality and predictability in legal affairs and
ensuring that claims will be resolved while evidence
is reasonably available and fresh. -Also termed
nonclaim statute; limitations period. [Cases: Limita
tion of Actions ~1.1
"Statutes of limitations, like the equitable doctrine of laches,
in their conclusive effects are designed to promotejustice
by preventing surprises through the revival of claims that
have been allowed to slumber until evidence has been lost,
memories have faded, and witnesses have disappeared."
Order of R.R. Telegraphers v. Railway Express Agency, 321
U.S. 342, 348-49,64 S.Ct. 582, 586 (1944).
2. A statute establishing a time limit for prosecuting a
crime, based on the date when the offense occurred. -
Abbr. S/L; SOL. Cf. STATUTE OF REPOSE. [Cases:
Criminal Law ~145.5-160.]
"The purpose of a statute of limitations is to limit exposure
to criminal prosecution to a certain fixed period of time
following the occurrence of those acts the legislature had
decided to punish by criminal sanctions. Such a limitation
is designed to protect individuals from having to defend
themselves against charges when the basic facts have
become obscured by the passage of time and to minimize
the danger of official punishment because of acts in the far
distant past. Such a time limit may also have the salutary
effect of encouraging law enforcement officials promptly
to investigate suspected criminal activity." Toussie v. United
States, 397 U.S. 112,90 S.Ct. 858 (1970).
Statute of Monopolies. Hist. A 1624 act of the English
Parliament banning the Crown's practice of granting
monopolies with the single exception ofletters patent,
which gave an inventor the exclusive right to make and
use the invention for 14 years. 21 Jac. 1, ch. 3.
statute of mortmain. See MORTMAIN STATUTE.
statute ofrepose. (l8c) A statute barring any suit that is
brought after a specified time since the defendant acted
(such as by designing or manufacturing a product),
even ifthis period ends before the plaintiff has suffered
a resulting injury. C. STATUTE OF LIMITATIONS |
a product),
even ifthis period ends before the plaintiff has suffered
a resulting injury. C. STATUTE OF LIMITATIONS. [Cases:
Limitation of Actions ~1.]
"A statute of repose ... limits the time within which an
action may be brought and is not related to the accrual
of any cause of action; the injury need not have occurred, much less have been discovered. Unlike an ordinary statute
of limitations which begins running upon accrual of the
claim, the period contained in a statute of repose begins
when a specific event occurs, regardless of whether a cause
of action has accrued or whether any injury has resulted."
54 c.j.S. Limitations ofActions 4, at 20-21 (1987).
Statute ofUses. Hist. An English statute of 1535 that con
verted the equitable title held by a cestui que use (i.e.,
a beneficiary) to a legal one in order to make the cestui
que use liable for feudal dues, as only a legal owner (the
feoffee to uses) could be. 27 Hen. 8, ch. 10. This statute
was the culmination ofa series ofenactments designed
by the Tudors to stop the practice of creating uses in
land that deprived feudal lords of the valuable incidents
offeudal tenure. The statute discouraged the granting
of property subject to another's use by deeming the
person who enjoys the use to have legal title with the
right ofabsolute ownership and possession. So after the
statute was enacted, if A conveyed land to B subject to
the use ofC, then C became the legal owner ofthe land
in fee simple. Ultimately, the statute was circumvented
by the courts' recognition ofthe use ofequitable trusts
in land-conveyancing. See CESTUI QUE USE; GRANT TO
USES; USE (4).
"The Statute of 27 H.8. hath advanced Uses, and hath
established Surety for him that hath the Use against the
Feoffees: for before the Statute the Feoffees were Owners
of the Land, but now it is destroyed, and the cestuy que use
is the Owner of the same: before the Possession ruled the
Use, but since the Use governeth the Possession." William
Noy, A Treatise of the Principal Grounds and Maxims of
the Laws of This Nation 73 (4th ed. 1677; repro C. Sims
ed., 1870).
Statute ofWestminster the First. See WESTMINSTER THE
FIRST, STATUTE OF.
statute ofwills. (l7c) 1. (cap.) An English statute (enacted
in 1540) that established the right ofa person to devise
real property by will. -Also termed Wills Act. 2. A
state statute, usu. derived from the English statute,
providing for testamentary disposition and if certain
requirements for valid execution in that jurisdiction
are met. [Cases: Wills ~1-20.]
Statute of Winchester. See WINCHESTER, STATUTE OF.
Statute of York. See YORK, STATUTE OF.
statute roll. Hist. A roll upon which a statute was
formally entered after receiving the royal assent.
Statutes at Large. An official compilation of the acts
and resolutions that become law from each session of
Congress, printed in chronological order.
statute staple. Hist. 1. A 1353 statute establishing pro
cedures for settling disputes among merchants who
traded in staple towns. The statute helped mer
chants receive swift judgments for debt. C. STATUTE
MERCHANT. 2. A bond for commercial debt. A statute
staple gave the lender a possessory right in the land ofa
debtor who failed to repay a loan. See STAPLE.
"A popular form of security after 1285 ... was the ...
'statute staple' -whereby the borrower could by means
of a registered contract charge his land and goods without
giving up possession; if he failed to pay, the lender became
a tenant of the land until satisfied .... The borrower
1547 statutory period
under a statute or recognizance remained in possession
of his land, and it later became a common practice under
the common-law forms of mortgage likewise to allow the
mortgagor to remain in possession as a tenant at will or at
sufferance of the mortgagee." J.H. Baker, An Introduction
to English Legal History 354 (3d ed. 1990).
statuti (st<l-t[yJoo-tr), n. pI. [Latin] Roman law. Licensed
officials, esp. advocates, whose names are inscribed in
registers of matriculation, forming part of the college
ofadvocates. Cf. SUPERNUMERARll.
statuto mercatorio. See DE STATUTO MERCATORIO.
statutory (sta4:h-<l-tor-ee), adj. (18c) 1. Of or relating to
legislation <statutory interpretation>. 2. Legislatively
created <the law of patents is purely statutory>. 3. Con
formable to a statute <a statutory act>.
statutory a4:tion. See ACTION (4).
statutory agent. See AGENT (2).
statutory arson. See ARSON (2).
statutory bar. Patents. A patent law provision that
denies patent protection to inventors who wait too
long to apply. -This "loss of right" may occur when
an inventor publishes an article about the work, sells it,
offers it for sale, or makes public use of the invention.
The inventor has one year after the disclosure to apply
for a patent. See BAR (7). Cf. GRACE PERIOD (2). [Cases:
Patents (;=>80.]
statutory bond. 1. See BOND (2). 2. See BOND (3).
statutory burglary. See BURGLARY (2).
statutory 4:onstruction. (1813) 1. The act or process of
interpreting a statute. 2. Collectively, the principles
developed by courts for interpreting statutes. Also
termed statutory interpretation. See CONSTRUCTION (2).
[Cases: Statutes (;:":::'l74-247.]
"[Tlhere is not, and probably never can be, anything
meriting the description of a coherent body of caselaw
on statutory interpretation as a whole as distinct from the
interpretation of a particular statute." Rupert Cross, Statu
tory Interpretation 39 (1976).
statutory contract. See CONTRACT.
statutory crime. See CRIME.
statutory damages. See DAMAGES.
statutory dedication. See DEDICATION.
statutory deed. See DEED.
statutory disclaimer. See DISCLAIMER.
statutory double patenting. See DOUBLE PATENTING.
statutory double-patenting rejection. See REJECTION.
statutory employee. See EMPLOYEE.
statutory employer. See EMPLOYER.
statutory exception. See EXCEPTION (2).
statutory exclusion. Criminal procedure. The removal,
by law, of certain crimes from juvenile-court jurisdic
tion. _ Many states now remove certain particularly
serious crimes committed by older juveniles from the
jurisdiction ofthe juvenile courts. In this kind ofcase,
the juvenile court never has jurisdiction, so a transfer hearing is not required or necessary. Cf MANDATORY
WAIVER. [Cases: Infants (;=>68.5, 68.7.]
statutory exposition. (1854) A statute's special interpre
tation ofthe ambiguous terms of a previous statute <the
statute contained a statutory exposition of the former
act>.
statutory extortion. See EXTORTION.
statutory forced share. See ELECTIVE SHARE.
statutory foreclosure. See power-oj-sale Joreclosure
under FORECLOSURE.
statutory guardian. See GUARDIAN.
statutory homestead. See constitutional homestead
under HOMESTEAD.
statutory insolvency. See BANKRUPTCY (3).
statutory instrument. A British administrative regu
lation or order; an order or regulation issued by an
authority empowered by statute to do so, usu. to give
detailed effect to the statute.
statutory interpretation. See STATUTORY CONSTRUC
TION.
statutory invention registration. Patents. An official pro
cedure for placing an invention in the public domain by
publishing the patent abstract (which is included with
the invention's original application) in the U.S. Patent
and Trademark Office's Official Gazette, thus making
the abstract a prior-art reference as of the application's
filing date. -The process results in abandonment of the
patent application. If an alternative form ofdisclosure
is used, the prior-art references's effective date is the
date of publication. 35 USCA 157. Abbr. SIR. See
DEFENSIVE DISCLOSURE. [Cases: Patents (;=> 115.]
statutory law. (l7c) The body oflaw derived from statutes
rather than from constitutions or judicial decisions.
Also termed statute law; legislative law; ordinary law.
Cf. COMMON LAW (1); CONSTITUTIONAL LAW.
statutory liability. See LIABILITY.
statutory lien. See LIEN.
statutory merger. See MERGER.
statutory obligation. See OBLIGATION.
statutory omnibus clause. See OMNIBUS CLAUSE.
statutory partnership assodation. See PARTNERSHIP
ASSOCIATION.
statutory penalty. See PENALTY (1).
statutory period. 1. A time limit specified in a statute;
esp., the period prescribed in the relevant statute of
limitations. -This period includes, in addition to a
fixed number ofyears, whatever time local law allows
because of infancy, insanity, coverture, and other like
circumstances. [Cases: Limitation of Actions 1.]
2. Patents. The time available to a patent applicant to
answer an examiner's office action. -Since the six
month period is set by statute, it cannot be extended
but it can be shortened to as few as 30 davs. 35 USCA
133. Cf. SHORTENED STATUTORY PERiOD. [Cases:
Patents (;=>104.]
1548 statutory presumption
statutory presumption. See PRESUMPTION.
statutory rape. See RAPE.
statutory rate. See MECHANICAL ROYALTY.
statutory receiver. See RECEIVER.
statutory redemption. See REDEMPTION.
statutory release. Hist. A conveyance superseding the
compound assurance by lease and release, created by
the Conveyance by Release Without Lease Act of 1841
(St. 4 & 5 Vict., ch. 21).
statutory right of redemption. (1857) The right of a
mortgagor in default to recover property after a fore
closure sale by paying the principal, interest, and other
costs that are owed, together with any other measure
required to cure the default. This statutory right
exists in many states but is not uniform. See EQUITY
OF REDEMPTION; REDEMPTION (4). [Cases: Mortgages
(>591-624.]
statutory share. See ELECTIVE SHARE.
statutory staple. Hist. A writ to seize the lands, goods,
and person of a debtor for forfeiting a statute staple.
See STATUTE STAPLE.
statutory subject matter. See PATENTABLE SUBJECT
MATTER.
statutory successor. See SUCCESSOR.
statutory tenant. See TENANT.
statuto stapulae. See DE STATUTO STAPULAE.
statutum (st~-t[y]oo-t~m), adj. Established; deter
mined.
statutum, n. 1. Hist. An act of Parliament, esp. one that
has been approved by the monarch. Cf. ACTUS (2). 2.
Roman law. An ordinance; esp., an imperial law.
Statutum de Nova Custuma (st~-t[y]oo-t~m dee noh-v~
k;)s-ch~-m;) or k~s-tp-m~). See CARTA MERCATORIA.
stay, n. (l6c) 1. The postponement or halting of a pro
ceeding, judgment, or the like. 2. An order to suspend
all or part of a judicial proceeding or a judgment
resulting from that proceeding. -Also termed stay
ofexecution; suspension ofjudgment. [Cases: Action
(>67; Execution (>158; Federal Civil Procedure (>
2700.] -stay, vb. -stayable, adj.
automatic stay. Bankruptcy. A bar to all judicial and
extrajudicial collection efforts against the debtor or
the debtor's property, subject to specific statutory
exceptions. 11 USCA 362 (a)-(b) . The policy
behind the automatic stay, which is effective upon the
filing of the bankruptcy petition, is that all actions
against the debtor should be halted pending the deter
mination ofcreditors' rights and the orderly admin
istration of the debtor's assets free from creditor
interference. -Also termed automatic suspension.
[Cases: Bankruptcy (>2391-2404.]
stay-away order. 1. In a domestic-violence case, an
order forbidding the defendant to contact the victim.
A stay-away order usu. prohibits the defendant from
coming within a certain number offeet ofthe victim's home, school, work, or other specific place. Stay-away
orders are most often issued in criminal cases. [Cases:
Breach ofthe Peace C=>16.]2. RESTRAINING ORDER (1).
3. In a juvenile-delinquency case, an order prohibit
ing a youthful offender from frequenting the scene of
the offense or from being in the company of certain
persons. -Also termed no-contact order; stay-away
order ofprotection.
stay ofexecution. See STAY.
stay of mandate. 1. The suspension of a |
ofprotection.
stay ofexecution. See STAY.
stay of mandate. 1. The suspension of a lower court's
order of execution, imposed by a higher court. 2. An
appellate court's suspension of its own judgment for
reconsideration.
stayor. Rare. Tennessee law. A surety for a judgment.
stay-put rule. School law. The principle that a child must
remain in his or her current educational placement
while an administrative claim under the Individuals
with Disabilities Education Act (usu. for an alternative
placement or for mainstreaming) is pending. 20 USCA
1415(j). [Cases: Schools (>148(2.1).]
STB. abbr. SURFACE TRANSPORTATION BOARD.
STD. abbr. SEXUALLY TRANSMITTED DISEASE.
steady course. Maritime law. A ship's path that can
be readily ascertained either because the ship is on a
straight heading or because the ship's future positions
are easy to plot based on the ship's current position and
movements. [Cases: Collision (>35-38.J
steal, vb. (bef. 12c) 1. To take (personal property) illegally
with the intent to keep it unlawfully. [Cases: Larceny
(>1.] 2. To take (something) by larceny, embezzle
ment, or false pretenses.
stealth. 1. Hist. Theft; an act or instance of stealing.
Etymologically, this term is the noun corresponding
to the verb steal.
"Stealth is the wrongful taking of goods without pretence of
title: and therefore altereth not the property, as a trespass
doth, so as upon an appeal the party shall re-have them."
Sir Henry Finch, Law, ora Discourse Thereof210 (1759).
2. Surreptitiousness; furtive slyness.
stealth juror. See JUROR.
steganography (steg-~-nog-r~-fee), n. A cryptographic
method that digitally embeds or encodes one item of
information within another. Because digitized audio
or visual files usu. have unused data areas, indelible
(and nearly undetectable) information can be added
without altering the file's quality. Copyright or trade
mark tags can be hidden in every fragment ofa digital
work, making disassociation almost impossible. -Also
termed digital fingerprinting; digital watermarking.
stellionatus (stel-ee-~-nay-t<ls or stel-Y<l-). [Latin "under
hand dealing"] Roman & Scots law. Conduct that is
fraudulent but does not fall within a specific class of
offenses. This term applies primarily to fraudulent
practices in the sale or hypothecation ofland. -Also
termed (in Scots law) stellionate. Cf. COZENING .
"Though pignus and hypothec are almost different names
for the same thing, there were differences. Hypothec was
used mainly for land, which cannot be removed. A thing
could be pledged only to one, but successive hypothecs
might be created over a thing. There was no fraud in this
but it was the offence of stellionatus to give a hypothec
without declaring existing hypothecs." W.w. Buckland, A
Manual ofRoman Private Law 355 (2d ed. 1953).
"STELLIONATE is a term applied, in the law of Scotland,
either to any crime which, though indictable, goes under
no general denomination, and is punishable arbitrarily, or
to any civil delinquency of which fraud is an ingredient.
Those, e.g., who grant double conveyances of the same
subject, are guilty of this crime. , . and are punishable
arbitrarily in their persons and goods, besides becoming
infamous." William Bell, Bell's Dictionarv and Digest of the
Law ofScotland 940 (George Watson ed., 1882).
stenographer's record. See reporter's record under
RECORD.
stent, n. Scots law. A property assessment made for
taxation purposes.
stent, vb. Scots law. To assess or charge (a person or com
munity) for taxation purposes.
stepbrother. See BROTHER.
stepchild. See CHILD.
stepfather. See FATHER.
step-in-the-dark rule. (1955) Torts. The contributory
negligence rule that a person who enters a totally unfa
miliar area in the darkness has a dutv, in the absence
ofunusual stress, to refrain from proc~eding until first
ascertaining whether any dangerous obstacles exist.
See contributory negligence under NEGLIGENCE. [Cases:
Negligence (;::::> 1286(8).]
stepmother. See MOTHER.
stepparent. See PARENT.
stepparent adoption. See ADOPTION.
stepped-up basis. See BASIS.
stepped-up visitation. See VISITATION.
step-rate-premium insurance. See INSURANCE.
stepsister. See SISTER.
step-transaction doctrine. A method used by the
Internal Revenue Service to determine tax liability by
viewing the transaction as a whole, and disregarding
one or more nonsubstantive, intervening transactions
taken to achieve the final result. Also termed
transaction approach. [Cases: Internal Revenue
3071.]
sterilization. 1. The act of making (a person or other
living thing) permanently unable to reproduce. 2. The
act of depriving (a person or other living thing) of
reproductive organs; esp., castration. Also termed
(in both senses) asexualization. [Cases: Abortion and
Birth Control (;::::> 133; Mental Health
sterling, adj. 1. Of or conforming to a standard of
national value, esp. of English money or metal <a
pound sterling>. 2. (Of an opinion, value, etc.) valuable;
authoritative <a sterling report>.
stet (stet), n. [Latin "let it stand"] (I8c) 1. An order staying
legal proceedings, as when a prosecutor determines not to proceed on an indictment and places the case on a
stet docket. The term is used chiefly in Maryland. 2.
An instruction to leave a text as it stands.
stet processus (stet prd-ses-,n), n. [Law Latin "let the
process stand"] Hist. 1. A record entry, similar to a nolle
prosequi, by which the parties agree to stay further pro
ceedings. 2. The agreement between the parties to stay
those proceedings . lhis was typically used by a plain
tiff to suspend an action rather than suffer a nonsuit.
stevedore (stee-vd-dor). Maritime law. A person or
company that hires longshore and harbor workers to
load and unload ships. Cf. SEAMAN; LONGSHOREMAN.
[Cases: Shipping (,~84, no.]
steward. 1. A person appointed to manage the affairs
of another. 2. A union official who represents union
employees and who oversees the performance ofunion
contracts. -Also termed (in sense 2) union steward;
shop steward.
steward ofall England. Hist. An officer vested with
various powers, including the power to preside over
the trial of peers.
steward ofa manor. Hist. An officer who handles the
business matters of a manor, including keeping the
court rolls and granting admittance to copyhold
lands.
Steward of Chiltern Hundreds (chil-tdrn). English
law. Formerly, a royal officer charged with protect
ing residents from robbers and thieves who hid in the
hundreds' wooded areas . Today, a member of Par
liament can accept this royal appointment as a step
toward resigning, which is generally forbidden by
statute. By law, for a member to accept this and certain
other Crown appointments is to forfeit his or her seat.
A resignation from the office of Steward completes the
resignation process.
stickering. Securities. The updating of a prospectus by
affiXing stickers that contain the new or revised infor
mation. Stickering avoids the expense of reprinting
an entire prospectus.
stickler. Hist. An arbitrator.
stickup. (1904) An armed robbery in which the victim
is threatened by the use of weapons. Also termed
holdup. See armed robbery under ROBBERY. [Cases:
Robbery~ll.]
stiffening note. Maritime law. A permit, issued by a
customs collector to the ship's master, that authorizes
the receipt and loading of heavy goods necessary to
ballast a vessel before the inward-bound cargo has been
completely unloaded.
stifling of a prosecution. An illegal agreement, in
exchange for money or other benefit, to abstain from
prosecuting a person. [Cases: Compounding Offenses
(>1.]
stigma-plus doctrine. The principle that defamation by
a government official is not actionable as a civil-rights
violation unless the victim suffers not onlv embarrass
ment but also the loss of a property inte'rest (such as
continued employment in a government job). [Cases:
Civil Rights (;:::> 1038; Constitutional Law (;:::>4040.]
still, n. An instrument or apparatus used for making
distilled liquor or alcohol.
stillborn, adj. (Ofan infant) born dead. Also termed
deadborn.
stillicidium (stil-J-sid-ee-Jm), n. [Latin fro stilla "a
drop" + ,adere "to fall"] Roman law. Eavesdropping.
See AQUAE IMMITTENDAE; servitus stillicidii under
SERVITUS.
stilus curiae (stl-laS kyoor-ee-ee). [Law Latin] Hist. The
form ofcourt.
sting. (1976) An undercover operation in which law
enforcement agents pose as criminals to catch actual
criminals engaging in illegal acts.
stint. 1. English law. Limitation; restriction <a right to
take fish from a canal without stint can exist as a profit
in gross>.
"All these species, of pasturable common, may be and
usually are limited as to number and time; but there are
also commons without stint, and which last all the year." 2
William Blackstone, Commentaries on the Laws ofEng/and
34 (1766).
2. A specific quantity of work; the time spent perform
ing a specific activity <he has done his stint>.
stipend (stl-pend or -p;md). 1. A salary or other regular,
periodic payment. 2. A tribute to support the clergy,
usu. consisting ofpayments in money or grain. [Cases:
Religious Societies {P27(5).]
stipendiary estate (su-pen-dee-er-ee). See ESTATE (1).
stipendiary magistrate. See MAGISTRATE.
stipendium (stI-pen-dee-Jm), n. [Latin] Roman law. A
soldier's regular pay. Cf. SALARIUM.
stipes (stl-peez), n. [Latin "a trunk"] Hist. Family stock; a ,
source of descent or title. PI. stipites (stip-J-teez).
stipital (stip-i-tdl), adj. See STIRPITAL.
stipulated authority. See express authority under
AUTHORITY (1).
stipulated damages. See liquidated damages under
DAMAGES.
stipulated judgment. See agreed judgment under
JUDGMENT.
stipulatio (stip-YJ-Iay-shee-oh), n. [Latin] Roman law.
An oral contract requiring a formal question and reply,
binding the replier to do what was asked . It is essen
tial that both parties speak, and that the reply directly
conforms to the question asked and is made with the
intent to enter into a contractual obligation. No consid
eration is required. See actio ex stipulatu under ACTIO.
PI. stipulationes (stip-YJ-Iay-shee-oh-neez).
"[I]t must be remembered that the lawforms used by the
Romans had their origin in times when writing was neither
easy nor common. It is not surprising, therefore, that
among them a form of spoken words, a verbal contract,
should hold the place which among us is occupied by
written notes. This form ... stipulatio was of a very
simple character, consisting only of a question asked by one party, and an answer returned by the other ....
Such forms as Spondesne mihi decem aureos dare (do
you engage to give me ten aurei, or gold-pieces): answer,
Spondeo (I engage) ...." James Hadley, Introduction to
Roman Law 210 (1881).
"The oldest Roman contract was the stipulatio, an oral
promise made by an answer to an immediately preced
ing question, with the promisor using the same verb. The
contract was unilateral. Only one party, the promisor, was
legally liable, and he was bound strictly by the words used."
Alan Watson, Ancient Law and Modern Understanding 96
(1998).
stipulatio aquiliana (stip-ya-Iay-shee-oh J-kwil-ee
ay-na). [Latin] Roman law. A type ofstipulatio used to
collect and discharge all the liabilities owed on various
grounds by a single contract.
"[S]tipulatio Aquiliana, a device credited to Aquilius Gallus,
of Cicero's time. Where two persons with complex rela
tions between them desired to square or simplify their
accounts they could work out the items and arrive at
the balance .... This balance being paid or otherwise
arranged, each party would then make with the other this
stipulatio, which was a comprehensive formula ... This
would novate all the claims and turn them into a single
promise, for an incertum. These mutual stipulations might
then be released by acceptilatio." W.w. Buckland, A Manual
ofRoman Private Law 348 (2d ed. 1953).
stipulatio juris (stip-p-Iay-shee-oh joor-is). [Latin
"stipulatio as to the law"] The parties' agreement on a
question of law or its applicability . The court is not
bound to accept the stipulation if it is err |
parties' agreement on a
question of law or its applicability . The court is not
bound to accept the stipulation if it is erroneous. But
the parties are allowed to stipulate the law to be applied
to a dispute.
stipulation (stip-YJ-Iay-sh;m), n. (I8c) 1. A material con
dition or requirement in an agreement; esp., a factual
representation that is incorporated into a contract as
a term <breach of the stipulation regarding payment
of taxes>. Such a contractual term often appears in
a section of the contract called "Representations and
Warranties." [Cases: Contracts (;::~ 173, 207, 218,
2. A voluntary agreement between opposing parties
concerning some relevant point; esp., an agreement
relating to a proceeding, made by attorneys represent
ing adverse parties to the proceeding <the plaintiff and
defendant entered into a stipulation on the issue oflia
bility>. A stipulation relating to a pending judicial
proceeding, made by a party to the proceeding or the
party's attorney, is binding without consideration.
[Cases: Stipulations
"Breach of a stipulation should not be confused with mis
representation, which is a false statement made before
or at the time the contract is made, and which induces
the contract; only if it is incorporated into the contract
does it become a stipulation or term, the breach of which
will entitle the injured party to pursue the usual remedies
which are available where there has been a breach of a
warranty or of a condition." 1 E.W. Chance, Principles of
Mercantile Law 239 (P.W. French ed., 13th ed. 1950).
"Stipulations with respect to matters of form and procedure
serve the convenience of the parties to litigation and often
serve to simplify and expedite the proceeding. In some
cases they are supported by the policy of favoring com
promise in order to reduce the volume of litigation. Hence
they are favored by the courts and enforced without regard
to consideration." Restatement (Second) of Contracts 94
cmt. a (1979).
1551
3. Roman law. A formal contract by which a promisor
(and only the promisor) became bound by oral question
and answer. _ By the third century A.D., stipulations
were always evidenced in writing. See REUS PROMIT
TEND!; REUS STIPULANDI. stipulate (stip-ya-layt),
vb. -stipulative (stip-ya-l<"l-tiv), adj.
"A stipulation consisted in a question and answer, the
question being put by the person who was to acquire a
right, the answer being given orally by the person who
undertook the obligation. The matter of the agreement
being stated, the binding words were usually simple;
those used by (and peculiar to) Romans being Spondesne?
or spondes? Spondeo. A stipulation made with a foreigner
in these terms was invalid. The questioner was called
stipulator, sometimes reus stipulandi ('[stipulating party]'),
the answerer usually promissor (or reus prornittendi [the
promising party]) ...." 2 Henry John Roby, Roman Private
Law 12 (1902).
stipulation pour autrui (poor oh-troo-ee). [French "for
other persons] Civil law. A contractual provision that
benefits a third party and gives the third party a cause
ofaction against the promisor for specific performance.
La. Civ. Code art. 1978. See third-party benefiCiary
under BENEFICIARY. [Cases: Contracts C;::::J 187.]
stipulatio sponsalitia (stip-Y<"l-lay-shee-oh spon-s<"l
lish-ee-<"l). [Latin] Roman law. In early law a solemn
promise by a father (paterfamilias) that his child would
marry someone else's child. -In some cases, there was
a penalty if the marriage did not occur. In classical
and later Roman law, in which free marriage was the
rule, such a promise was unentorceable because it was
regarded as immoral (contra bonos mores).
stipulative definition. See DEFINITION.
stipulator. 1. One who makes a stipulation. 2. Civil law.
The promisee in a stipulation pour autrui, accepting the
promise of a benefit to a third party. See REUS STIPU
LAND!.
stirpal (star-pal), ad;. See STIRPITAL.
stirpes (star-peez). (pI.) See STIRPS.
stirpital (star-pa-t'll), adj. (1886) Ofor relating to per
stirpes distribution. -Also termed stipital; stirpal. See
PER STIRPES. [Cases: Descent and Distribution C;::::J43;
Wills C;::::J530.J
stirps (st<"lrps), n. [Latin "stock"] (17c) A branch of a
family; a line of descent. PI. stirpes (star-peez). See
PER STIRPES.
stock, n. (l4c) 1. The original progenitor of a family; a
person from whom a family is descended; BRANCH (1)
<George Harper, Sr. was the stock of the Harper line>.
2. A merchant's goods that are kept for sale or trade
<the car dealer put last year's models on sale to reduce
its stock>. 3. The capital or principal fund raised by a
corporation through subscribers' contributions or the
sale of shares <Acme's stock is worth far more today
than it was 20 years ago>. 4. A proportional part of
a corporation's capital represented by the number of
equal units (or shares) owned, and granting the holder
the right to participate in the company's general man
agement and to share in its net profits or earnings <Julia stock
sold her stock in Pantheon Corporation>. See SHARE
(2). Cf. SECURITY (4). [Cases: Corporations C;::::J63.1.]
adjustable-rate preferred stock. Preferred stock whose
dividend is periodically changed according to changes
in a benchmark interest rate, such as that ofTreasury
bills.
assented stock. Stock that an owner deposits with a
third person according to an agreement by which the
owner voluntarily accepts a change in the corpora
tion's securities.
assessable stock. Stock that is subject to resale by the
issuer ifthe holder fails to pay any assessment levied
on it. [Cases: Corporations C;::::J 175.]
authorized stock. See capital stock (1).
bailout stock. Nontaxable preferred stock issued to
stockholders as a dividend. -Bailout stock is issued
to gain favorable tax rates by distributing corporate
earnings at capital gains rates rather than by dis
tributing dividends at ordinary income rates. This
practice is now prohibited by the Internal Revenue
Code. IRC (26 USCA) 306.
barometer stock. A stock whose price fluctuates accord
ing to market conditions; an individual stock consid
ered to be indicative of the strength of the market in
general. -Also termed bellwether stock.
blank stock. Securities. Stock with voting powers and
rights set by the issuer's board of directors after the
stock has been sold. [Cases: Corporations C;::::J 126.]
blue-chip stock. See BLUE CHIP.
bonus stock. A stock share that is issued for no consid
eration, as an enticement to buy some other type or
class of security. -It is considered a type of watered
stock. Also termed bonus share. [Cases: Corpora
tions C-~99, 243(6).]
book-value stock. Stock offered to executives at a book
value price, rather than at its market value. -The
stock is offered with the understanding that when its
book value has risen, the company will buy back the
stock at the increased price or will make payments in
stock equal to the increased price.
callable preferred stock. Preferred stock that may be
repurchased by the issuing corporation at a prestated
price, usu. at or slightly above par value. [Cases: Cor
porations C='68.]
capital stock. 1. The total number ofshares ofstock that
a corporation may issue under its charter or articles
ofincorporation, including both common stock and
preferred stock. - A corporation may increase the
amount ofcapital stock if the owners of a majority
of the outstanding shares consent. Also termed
authorized stock; authorized capital stock; authorized
stock issue; authorized shares. [Cases: Corporations
C:.-:>60.] 2. The total par value or stated value of this
stock; CAPITALIZATION (4). 3. See common stock.
cheap stock. Stock or stock options issued to the issuer's
directors, employees, consultants, promoters, and the
like at a price lower than the public-offering price up
to 12 months before the offering.
common stock. A class of stock entitling the holder to
vote on corporate matters, to receive dividends after
other claims and dividends have been paid (esp. to
preferred shareholders), and to share in assets upon
liquidation . Common stock is often called capital
stock if it is the corporation's only class of stock out
standing. -Also termed ordinary shares. Cf. pre
ferred stock. [Cases: Corporations C=' 155.]
convertible stock. See convertible security under
SECURITY.
corporate stock. An equity security issued by a cor
poration.
cumulative preferred stock. Preferred stock that must
receive dividends in full before common sharehold
ers may receive any dividend . If the corporation
omits a dividend in a particular year or period, it is
carried over to the next year or period and must be
paid before the common shareholders receive any
payment. -Also termed cumulative stock; cumula
tive preference share. [Cases: Corporations C='156.]
deferred stock. Stock whose holders are entitled to
dividends only after the corporation has met some
other specified obligation, such as the discharge of
a liability or the payment of a dividend to preferred
shareholders.
discount stock. A stock share issued for less than par
value . Discount stock is considered a type ofwatered
stock, the issuance of which may impose liability on
the recipient for the difference between the par value
and the cash amount paid. -Also termed discount
share.
donated stock. Stock donated to a charity or given to a
corporation by its own stockholders, esp. for resale.
equity stock. Stock of any class having unlimited
dividend rights, regardless of whether the stock is
preferred.
floating stock. Stock that is offered for sale on the open
market and that has not yet been purchased; the
number ofoutstanding shares available for trading.
full-paid stock. Stock on which no further payments
can be demanded by the issuing company. -Also
termed paid-up stock. [Cases: Corporations C='88,
89.]
glamour stock. See growth stock (2).
growth stock. 1. Stock issued by a growth company.
Because a growth company usu. reinvests a large
share of its income back into the company, growth
stock pays relatively low dividends, though its price
usu. has a relatively high appreciation in market value
over time. 2. Stock that has produced or is expected to
produce above-average returns and usu. receives small
or no dividends. -Also termed glamour stock.
guaranteed stock. Preferred stock on which a dividend
is guaranteed by someone (usu. a parent corporation)
other than the issuer. [Cases: Corporations C='156.] guarantee stock. A fixed, nonwithdrawal investment in
a building-and-Ioan association . This type ofstock
guarantees to all other investors in the association a
fixed dividend or interest rate. See BUILDING-AND
LOAN ASSOCIATION. [Cases: Building and Loan Asso
ciations C='7.]
guaranty stock. A savings-and-loan association's stock
yielding dividends to the holders after dividends have
been paid to the depositors. [Cases: Building and
Loan Associations C=' 11.]
hot stock. See hot issue under ISSUE (2).
inactive stock. A low-volume stock.
income stock. A stock with a history of high yields or
dividend payments (e.g., public utilities and well
established corporations).
issued stock. Capital stock that has been authorized
and sold to subscribers, but may be reacquired, such
as treasury stock. [Cases: Corporations C='n, 159.]
joint stock. Capital invested in an unincorporated
business and divided into shares proportionate to the
size of each investment. [Cases: Joint-Stock Compa
nies and Business Trusts C='5.]
letter stock. See restricted security under SECURITY.
listed stock. See listed security under SECURITY.
margin stock. See marginable security under
SECURITY.
nonassessable stock. Stock owned by a holder whose
potential liability is limited to the amount paid for the
stock and who cannot be charged additional funds
to pay the issuer's debts . Stock issued in the United
States is usu. nonassessable. [Cases: Corporations C=',
78,175.]
noncumulative preferred stock. Preferred stock that
does not have to be paid dividends that are in arrears.
Once a periodic dividend is omitted, it will not be
paid. -Also termed noncumulative stock. [Cases:
Corporations C=' 156.]
nonparticipating preferred stock. Preferred stock that
does not give the shareholder the right to additional
earnings -usu. surplus common-stock dividends
beyond those stated in the preferred contract.
nonvoting stock. Stock that has no voting rights under
most situations. [Cases: Corporations <.r'=' 197.]
no-par stock. Stock issued without a specific value
assigned to it. For accounting purposes, it is given
a legal or stated value that has little or no connection
to the stock's actual value. -Sometimes shortened
to no par. -Also termed no-par-value stock.
outstanding stock. Stock that is held by investors
and has not been redeemed by the issuing corpora
tion. -Also termed outstanding capital stock; shares
outstanding.
paid-up stock. See full-paid stock.
participating preferred stock. Preferred stock whose
holder is entitled to receive stated dividends and to
1553 stockbroker
share with the common |
Preferred stock whose
holder is entitled to receive stated dividends and to
1553 stockbroker
share with the common shareholders in any addi
tional distributions of earnings.
participation stock. Stock permitting the holder to par
ticipate in profits and surplus.
par-value stock. Stock originally issued for a fixed value
derived by dividing the total value of capital stock by
the number of shares to be issued. The par value
does not bear a necessary relation to the actual stock
value because surplus plays a role in the valuation.
[Cases: Corporations (;::::62, 99(3).]
penny stock. An equity security that is not traded in
established markets, represents no tangible assets, or
has average revenues less than reqUired for trading
on an exchange. Typically, a penny stock is highly
speculative and can be purchased for less than $5 a
share.
performance stock. See glamour stock.
phantom stock. Imaginary stock that is credited to a
corporate executive account as part ofthe executive's
compensation package. See PHANTOM STOCK PLAN.
[Cases: Corporations (;:::: 308(3).J
preferred stock. A class ofstock giving its holder a pref
erential claim to dividends and to corporate assets
upon liquidation but that usu. carries no voting
rights. Also termed preference shares. Cf. common
stock. [Cases: Corporations (;:::: 156.)
premium stock. Stock that carries a premium for
trading, as in the case of short-selling.
prior preferred stock. Preferred stock that has prefer
ence over another class of preferred stock from the
same issuer. The preference usu. relates to dividend
payments or claims on assets. [Cases: Corporations
(;:::: 156.]
public stock. 1. See public security under SECURITY. 2.
Stock of a publicly traded corporation.
reacquired stock. See treasury stock.
redeemable stock. Preferred stock that can be called by
the issuing corporation and retired. [Cases: Corpora
tions (;:.:::>68.]
registered stock. See registered security under SECU
RITY.
restricted stock. See restricted security under SECU
RITY.
retired stock. See treasury stock.
special stock. Hist. Corporate stock that guarantees
investors an annual dividend and gives them creditor
status to the extent that dividends have become
payable. In contrast, preferred-stock holders' claims
for dividends payable are secondary to creditors'
claims. Special stock was statutorily authorized only
in Massachusetts. [Cases: Corporations (>::)7LJ
subscribed stock. A stockholder's equity account
shOWing the capital that will be contributed when the
subscription price is collected. See SUBSCRIPTION (2).
[Cases: Corporations (;::::88.] tainted stock. Stock owned or transferred by a person
disqualified from serving as a plaintiff in a derivative
action. A good-faith transferee is also disqualified
from filing a derivative action.
treasury stock. Stock issued by a company hut then
reacquired and either canceled or held . Some states
have eliminated this classification and treat such stock
as if it is authorized but unissued. -Also termed
treasury security; treasury share; reacquired stock;
retired stock. [Cases: Corporations (;::::72.J
unissued stock. Stock that is authorized by the corpo
rate charter but not yet distributed.
unlisted stock. See unlisted security under SECURITY.
volatile stock. Stock subject to wide and rapid fluctua
tions in price. Also termed yo-yo stock.
voting stock. Stock that entitIes the holder to vote in
the corporation's election of directors and on other
matters that are put to a vote. Also termed voting
security. [Cases: Corporations (;:::: 197.J
watered stock. Stock issued for less than par value.
[Cases: Corporations (;::::99.J
'The term 'watered stock' is a colorful common law phrase
describing the situation where shareholders receive shares
without paying as much for them as the law requires ....
Much of the early common law relating to watered shares
concerned the liability of shareholders receiving watered
shares to pay the additional conSideration needed to
'squeeze out the water.' ... [It nowl seems clear that a
shareholder is liable to the corporation if he or she pays
less for the shares than the conSideration fixed by the
directors, and this liability is measured by the difference
between the fixed consideration and the amount actually
paid." Robert W. Hamilton, The Law of Corporations in a
Nutshell 120-21 (3d ed. 1991).
whisper stock. The stock ofa company that is rumored
to be the target of a takeover attempt.
yo-yo stock. See volatile stock.
stock acquisition. See SHARE ACQUISITION.
stock-appreciation right. (usu. pl.) A right, typically
granted in tandem with a stock option, to be paid the
option value (usu. in cash) when exercised along with
the simultaneous cancellation of the option. -Abbr.
SAR. [Cases: Corporations (;:::: 116.]
stock association. See joint-stock company under
COMPANY.
stock attribution. See ATTRIBUTION.
stock bailout. A stock redemption in the form of a pre
ferred stock dividend.
stock/bond power. See STOCK POWER.
stock bonus plan. A special type of profit-sharing plan
in which the distribution of benefits consists of the
employer-company's own stock. [Cases: Corporations
(;::::308(1).]
stockbroker. One who buys or sells stock as agent for
another. Also termed account executive; account rep
resentative. [Cases: Brokers
stock certificate 1554
stock certificate. An instrument evidencing ownership
of shares of stock. Also termed certificate ofstock;
share certificate. [Cases: Corporations C:=>94.]
face-amount certificate. 1. A certificate, investment
contract, or other security representing an obligation
by its issuer to pay a stated or determinable sum, at
a fixed or determinable date or dates more than 24
months after the date of issuance, in consideration
ofthe payment ofperiodic installments ofa stated or
determinable amount. -Also termed face-amount
certificate ofthe installment type. 2. A security repre
senting a similar obligation on the part ofthe issuer of
a face-amount certificate, the consideration for which
is the payment ofa single lump sum. See 15 USCA
80a-2(a)(15). Also termed fully paid face-amount
certificate.
periodic-payment-plan certificate. A certificate,
investment contract, or other security providing for
a series of periodic payments by the holder and rep
resenting an undivided interest in certain specified
securities or in a unit or fund of securities purchased
wholly or partly with the proceeds ofthose payments.
_ The term also includes any security whose issuer
is also issuing the certificates described above and
whose holder has substantially the same rights and
privileges as those holders have upon completing the
periodic payments for which the securities provide.
See 15 USCA 80a-2(a)(27).
stock dearing. The actual exchange ofmoney and stock
between buyer and seller, typically performed by a
dearing corporation.
stock dearing corporation. A New York Stock Exchange
subsidiary that is a central agency for securities deliver
ies and payments between member firms.
stock control. A system of inventory management by
which a business maintains perpetual records of its
inventory.
stock corporation. See CORPORATION.
stock dividend. See DIVIDEND.
stock exchange. See SECURITIES EXCHANGE.
stock-for-assets exchange. Mergers & acquisitions. A
merger in which one corporation agrees to dissolve and
transfers all or most of its assets to another corpora
tion, which then distributes shares of its own stock to
the dissolving corporation's shareholders.
stock-for stock exchange. See stock swap under SWAP.
stockholder. See SHAREHOLDER.
stockholder derivative suit. See DERIVATIVE ACTION
(1).
stockholder of record. The person who is listed in the
issuer's books as the owner of stock on the record
date. Also termed holder ofrecord; owner ofrecord;
record owner. See record date under DAT. [Cases: Cor
porations 128.]
stockholders' equity. See OWNERS' EQUITY. stockholder's liability. See shareholder's liability under
LIABILITY.
stock insurance company. See INSURANCE COMPANY.
stock in trade. 1. The inventory carried by a retail
business for sale in the ordinary course ofbusiness. 2.
The tools and equipment owned and used by a person
engaged in a trade. 3. The equipment and other items
needed to run a business.
stock issue. See ISSUE (2).
stockjobber. See JOBBER (2).
stockjobbing, n. 'Ihe business of dealing in stocks or
shares; esp., the buying and selling of stocks and bonds
by jobbers who operate on their own account. -Also
termed stockjobbery.
stock-law district. See DISTRICT.
stock life-insurance company. See INSURANCE COM
PANY.
stock manipulation. See MANIPULATION.
stock market. 1. See MARKET (5). 2. See MARKET (6).
stock merger. See MERGER.
stock note. See NOTE (1).
stock option. 1. An option to buy or sell a specific
quantity ofstock at a deSignated price for a specified
period regardless of shifts in market value during the
period. [Cases: Corporations C:=>116.]2. An option that
allows a corporate employee to buy shares ofcorporate
stock at a fixed price or within a fixed period. -Such an
option is usu. granted as a form of compensation and
can qualify for special tax treatment under the Internal
Revenue Code. Also termed (in sense 2) employee
stock option; incentive stock option (ISO).
nonqualified stock option. A stock-option plan that
does not receive capital-gains tax treatment, thus
allowing a person to buy stock for a period (often ten
years) at or below the market Abbr. NQSO.
[Cases: Internal Revenue
qualified stock option. A now-rare stock-option
plan that allows a person to buy stock for a period
(often five years) at the market price, the stock being
subject to capital-gains tax treatment. Internal
Revenue C~3602.]
stock-option contract. See CONTRACT.
stock-parking, n. See PARKING (2).
stock power. A power of attorney permitting a person,
other than the owner, to transfer ownership of a
security to a third party. Also termed stock/bond
power. [Cases: Corporations
stock-purchase plan. An arrangement by which an
employer corporation allows employees to purchase
shares ofthe corporation's stock. [Cases: Corporations
~116.1
stock redemption. See REDEMPTION (3).
stock-redemption agreement. An agreement between
a corporation's individual owners and the corporation
1555 store
itself, whereby the corporation agrees to purchase
(Le., redeem) the stock of a withdrawing or deceased
owner. ~Often shortened to redemption agreement.
Also termed stock-retirement agreement. [Cases: Cor
porations 120.J
stock repurchase. See REDEMPTION (3).
stock-repurchase plan. A program by which a corpora
tion buys back its own shares in the open market, usu.
when the corporation believes the shares are under
valued.
stock-retirement agreement. See STOCK-REDEMPTION
AGREEMENT.
stock right. See SUBSCRIPTION RIGHT.
stocks, n. A punishment device consisting of two boards
that together form holes for trapping an offender's feet
and hands. Formerly also termed cippi. Cf. BILBOES
(1); PILLORY.
stock sale. Mergers & acquisitions. A takeover in which
the acquiring corporation buys stock directly from the
target corporation's shareholders until it controls all or
a majority of the target's stock.
stock split. The issuance of two or more new shares
in exchange for each old share without changing the
proportional ownership interests of each shareholder.
For example, a 3-for-1 split would give an owner of
100 shares a total of 300 shares, or 3 shares for each
share previously owned. A stock split lowers the price
per share and thus makes the stock more attractive to
potential investors. ~Also termed share split. [Cases:
Corporations
reverse stock split. A reduction in the number ofa cor
poration's shares by calling in all outstanding shares
and reissuing fewer shares haVing greater value.
[Cases: Corporations (;=>68.]
stock subscription. See SUBSCRIPTION (2).
stock swap. See SWAP.
stock-transfer agent. See AGENT (2).
stock-transfer tax. See TAX.
stock warrant. See WARRANT (4).
stolen property. (18c) Goods acquired by larceny,
robbery, or theft. [Cases: Larceny Receiving
Stolen Goods Robbery (;=>4.J
stonewall, vb. To persistently refuse to cooperate in an
investigation; esp., to refuse to testify or to hand over
requested material until every available legal challenge
has been exhausted. stonewalling, n.
stool pigeon. Slang. 1. An informant, esp. a police infor
mant. 2. A person who acts as a decoy, esp. on behalf
ofa gambler or swindler, or for the police to help make
an arrest. -Also termed (in sense 1) rat; (in sense 2)
capper.
stop, n. (16c) Under the Fourth Amendment, a tem
porary restraint that prevents a person from walking
away. [Cases: Arrest <>:::>63.5.] stop and frisk, n. (1963) A police officer's brief detention,
questioning, and search of a person for a concealed
weapon when the officer reasonably suspects that the
person has committed or is about to commit a crime.
The stop and frisk, which can be conducted without
a warrant or probable |
person has committed or is about to commit a crime.
The stop and frisk, which can be conducted without
a warrant or probable cause, was held constitutional by
the Supreme Court in Terry v. Ohio, 392 U.S. 1,88 S.Ct.
1868 (1968). -Also termed investigatory stop; investi
gatory detention; Terry stop; field stop. See reasonable
suspicion under SUSPICION. [Cases: Arrest (,'='63.5.]
stopgap tax. See TAX.
stopgap zoning. See interim zoning under ZONING.
stop-limit order. See stop order under ORDER (8).
stop-list. Antitrust. An illegal means by which manu
facturers sometimes attempt to enforce price mainte
nance, by having suppliers agree among themselves not
to supply any party who competes actively and breaks
anticompetitive price "rules."
stop-loss insurance. See INSURANCE.
stop-loss order. See stop order under ORDER (8).
stop-notice statute. (l963) A law proViding an alternative
to a mechanic's lien by allowing a contractor, supplier,
or worker to make a claim against the construction
lender and, in some instances, the owner for a portion
of the undisbursed construction-loan proceeds. See
mechanic's lien under LIEN. [Cases: Mechanics' Liens
(;=>, 113, 115.]
stop order. 1. See ORDER (8). 2. An SEC order that
suspends a registration statement containing false,
incomplete, or misleading information. [Cases: Secu
rities Regulation ~25.l6.]3. A bank customer's order
instructing the bank not to honor one of the customer's
checks. Also termed (in sense 3) stop-payment order.
[Cases: Banks and Banking (;=> 139.]
stoppage, n. (15c) 1. An obstruction or hindrance to
the performance of some act <stoppage of goods or
persons in transit for inspection>. 2. Civil law. SETOFF
<stoppage in pay for money owed>.
stoppage in transitu (in tran-si-t[yJoo ortranz-i-t[y]oo).
(18c) The right of a seller ofgoods to regain possession
of those goods from a common carrier under certain
circumstances, even though the seller has already
parted with them under a contract for sale. This right
traditionally applies when goods are consigned wholly
or partly on credit from one person to another, and
the consignee becomes bankrupt or insolvent before
the goods arrive in which event the consignor may
direct the carrier to deliver the goods to someone other
than the consignee (who can no longer pay for them),
Also termed stoppage in transit. See RECLAMATION (2).
[Cases: Sales (;=>289-299.]
stop-payment order. See STOP ORDER (}).
store, n. (13c) 1. A place where goods are deposited
for purchase or sale. 2. (usu. pl.) A supply of articles
provided for the subsistence and accommodation of a
ship's crew and passengers. 3. A place where goods or
supplies are stored for future use; a warehouse.
1556 store
public store. A government warehouse administratively
maintained, as for the storage of imported goods or
military supplies.
store, vb. (l3c) To keep (goods, etc.) in safekeeping for
future delivery in an unchanged condition.
stored-value card. A device that provides access to a
specified amount of funds for making payments to
others, is the only means ofroutine access to the funds,
and does not have an associated account in the name
of the holder. Typically, a consumer pays a bank or
merchant money in exchange for a stored-value card;
the consumer uses the card rather than paper currency
to purchase goods and services. -Also termed smart
card; prepaid card; value-added card.
store-receiver exemption. See AIKEN EXEMPTION.
stouthrief. Scots law. Robbery that takes place in or near
one's dwelling, but is not coupled with housebreak
ing.
stowage (stoh-ij). Maritime law. 1. The storing, packing,
or arranging of cargo on a vessel to protect the goods
from friction, bruising, or water damage during a
voyage. The bill of lading will often prescribe the
method of stowage to be used. [Cases: Shipping ~
110.] 2. The place (such as a ship's hull) where goods are
stored. [Cases: Shipping ~110, 123.] 3. The goods so
stored. 4. A fee paid for the storage ofgoods; a storage
fee.
stowaway. A person who hides on board an outgoing or
incoming vessel or aircraft to obtain free passage. 18
USCA 2199. [Cases: Aliens, Immigration, and Citi
zenship ~255,265; Aviation ~17.]
STR. abbr. SUSPICIOUS-TRANSACTION REPORT.
straddle, n. In securities and commodities trading, a sit
uation in which an investor holds contracts to buy and
to sell the same security or commodity, thus ensuring
a loss on one ofthe contracts . The aim ofthis strategy
is to defer gains and use losses to offset other taxable
income. -Also termed spread eagle; combination.
straddle, vb.
straight annuity. See ANNUITY.
straight bankruptcy. See CHAPTER 7 (2).
straight bill oflading. See BILL OF LADING.
straight deductible. See DEDUCTIBLE.
straight letter ofcredit. See LETTER OF CREDIT.
straight life annuity. See nonrefund annuity under
ANNUITY.
straight life insurance. See whole life insurance under
LIFE INSURANCE.
straight-line depreciation method. See DEPRECIATION
METHOD.
straight-line interest. See simple interest under INTEREST
(3).
straight mortgage. See MORTGAGE.
straight sentence. See determinate sentence under
SENTENCE. straight-term mortgage. See interest-only mortgage
under MORTGAGE.
straight up. See s.u.
straight voting. See noncumulative voting under
VOTING.
strain theory. (l8c) The theory that people commit
crimes to alleviate stress created by the disjunction
between their station in life and the station to which
society has conditioned them to aspire. Cf. CONTROL
THEORY; RATIONAL-CHOICE THEORY; ROUTINE-ACTIV
ITIES THEORY.
stramineus homo (stra-min-ee-as hoh-moh). [Latin
"man ofstraw"] See STRAW MAN.
strand, n. (bef. 12c) A shore or bank of an ocean, lake,
river, or stream.
stranding, n. Maritime law. A ship's drifting, driving,
or running aground on a strand . The type ofstrand
ing that occurs determines the method of apportion
ing the liability for any resulting losses. [Cases: Salvage
~9,30.]
accidental stranding. Stranding caused by natural
forces, such as wind and waves. -Also termed invol
untary stranding. See general average and particular
average under AVERAGE.
"Damage to a vessel from involuntary stranding or wreck,
and the cost of repairs, are particular average only. Where,
however, the ship and cargo are exposed to a common peril
by the accidental stranding, the expenses of unloading and
taking care of the cargo, rescuing the vessel, reloading the
cargo, and other expenses other than repairs requisite to
enable the vessel to proceed on the voyage, are brought
into general average, proVided the vessel and cargo were
saved by the same series of measures during the continu
ance of the common peril which created the joint necessity
for the expenses." 70 Am.Jur. 2d Shipping 961, at 1069
(1987).
voluntary stranding. Stranding to avoid a more dan
gerous fate or for fraudulent purposes.
"The loss occurring when a ship is voluntarily run ashore to
avoid capture, foundering, or shipwreck is to be made good
by general average contribution, if the ship is afterwards
recovered so as to be able to perform its voyage, as such
a claim is clearly within the rule that whatever is sacrificed
for the common benefit of the associated interests shall
be made good by all the interests exposed to the common
peril which were saved from the common danger by the
sacrifice .... A vessel cannot, however, claim contribu
tion founded on even a voluntary stranding made neces
sary by ... unseaworthiness or the negligence ofthose in
charge, except in pursuance of a valid agreement to that
effect." 70 Am.Jur. 2d Shipping 961, at 1069 (1987).
stranger. (14c) 1. One who is not party to a given trans
action; esp., someone other than a party or the party's
employee, agent, tenant, or immediate family member.
[Cases: Contracts ~185.]2. One not standing toward
another in some relation implied in the context; esp.,
one who is not in privity. 3. A person who voluntarily
pays another person's debt even though the payor
cannot be held liable for the debt and the payor's
property is not affected by the creditor's rights . Sub
rogation does not apply to a stranger if the debtor did
not agree to or assign subrogation rights.
stranger in blood. (17c) 1. One not related by blood, such
as a relative by affinity. 2. Any person not within the
consideration ofnatural love and affection arising from
a relationship.
stratagem. (l5c) A trick or deception to obtain an advan
tage, esp. in a military conflict.
strategic alliance. (1983) A coalition formed by two or
more persons in the same or complementary businesses
to gain long-term financial, operational, or marketing
advantages without jeopardizing competitive indepen
dence <through their strategic alliance, the manufac
turer and distributor ofa co-developed product shared
development costs>. Cf. ALLIANCE (1); JOINT VENTURE;
PARTNERSHIP.
Strategic National Stockpile. A national repository of
medicines and healthcare supplies maintained jointly
by the U.S. Department ofHomeland Security and the
U.S. Department of Health and Human Services to
respond to public-health emergencies. -Created as the
National Pharmaceutical Stockpile in 1999, the agency
caches antibiotics, chemical antidotes, antitoxins, life
support medications, IV administration, airway main
tenance supplies, and medical supplies. -Abbr. SNS.
stratocracy (strd-tok-rd-see). A military government.
strator (stray-tdr). Hist. A surveyor ofthe highways.
straw bail. See bail common under BAIL (4).
straw bond. See BOND (2).
straw man. (1896) 1. A fictitious person, esp. one that is
weak or flawed. 2. A tenuous and exaggerated counter
argument that an advocate makes for the sole purpose
ofdisprOVing it. -Also termed straw-man argument.
3. A third party used in some transactions as a tempo
rary transferee to allow the principal parties to accom
plish something that is otherwise impermissible. 4.
A person hired to post a worthless bail bond for the
release ofan accused. Also termed stramineus homo.
Cf.DUMMY.
straw-man scam. Criminal law. A scheme in which an
innocent third person is hired to receive fraudulently
obtained money and wire it to a location outside the
country.
straw poll. A nonbinding vote, taken as a way ofinfor
mally gauging support or opposition but usu. without
a formal motion or debate.
stray remarks. Employment law. Statements to or about
an employee by a coworker or supervisor, concern
ing the employee's race, sex, age, national origin, or
other status, that are either objectively or subjectively
offenSive, but that do not represent harassment or
discrimination by the employer because of (1) their
sporadic, unsystematic, and unofficial nature, (2) the
circumstances in which theywere made, or (3) their not
showing any intention to hamper the employee's con
tinued employment. Also termed stray comments.
[Cases: Civil Rights C:~,1147, 1543.]
stream. Anything liquid that flows in a line or course;
esp., a current of water consisting of a bed, bank, and watercourse, usu. emptying into other bodies ofwater
but not losing its character even ifit breaks up or disap
pears. [Cases: Waters and Water Courses C=:38.]
private stream. A watercourse, the bed, channel, or
waters of which are exclusively owned by private
parties.
stream-of-commerce theory. (1942) 1. The principle that
a state may exercise personal jurisdiction over a defen
dant ifthe defendant places a product in the general
marketplace and the product causes injury or damage
in the forum state, as long as the defendant also takes
other acts to establish some connection with the forum
state, as by advertising there or by hiring someone to
serve as a sales agent there. Asahi Metal Indus. Co., Ltd.
v. Superior Court ofCal., 480 U.S. 102, 107 S.Ct. 1026
(1987). [Cases: Corporations C:=>665(1); Courts
12(2.25); Federal Courts C:=>76, 81.] 2. The principle
that a person who participates in placing a defective
product in the general marketplace is strictly liable for
harm caused by the product. Restatement (Second) of
Torts 402A (1979). [Cases: Products Liability C:=>
164.]
street. A road or public thoroughfare used for travel
in an urban area, including the pavement, shoulders,
gutters, curbs, and other areas within the street lines.
[Cases: Municipal Corporations <::=.)658.]
"Strictly speaking, a 'street' is a public thoroughfare in an
urban community such as a city, town, or village, and the
term is not ordinarily |
street' is a public thoroughfare in an
urban community such as a city, town, or village, and the
term is not ordinarily applicable to roads and highways
outside of municipalities. Although a street, in common
parlance, is equivalent to a highway, it is usually specifically
denominated by its own proper appellation .... Whether a
particular highway is to be regarded as a 'street' within the
meaning of that term as used in a statute must, of course,
be resolved by construction." 39 Am. Jur. 2d Highways,
Streets, and Bridges 8, at 588-89 (1999).
paper street. A thoroughfare that appears on plats, sub
division maps, and other publicly filed documents,
but that has not been completed or opened for public
use. [Cases: Municipal Corporations C:=>646.]
street crime. See CRiME.
street gang. See GANG.
street name. A brokerage firm's name in which securities
owned by another are registered. - A security is held
by a broker in street name (at the customer's request)
to simplify trading because no signature on the stock
certificate is required. A street name may also be used
for securities purchased on margin. The word "street"
in this term is a reference to Wall Street.
street-name security. See nominee account under
ACCOUNT.
street sweep. Mergers & acquisitions. Slang. A bidder's
cancellation of a tender offer followed by the open
market purchase oflarge blocks of stock in the target
corporation.
street time. Criminal law. The period between a person's
release from prison on parole and a court's revocation
ofthat parole.
strepitus judicialis (strep-~-t~s joo-dish-ee-ay-lis), n.
[Law Latin] Hist. Disruptive behavior in court.
strict, adj. (15c) 1. Narrow; restricted <strict construc
tion>. 2. Rigid; exacting <strict statutory terms>. 3.
Severe <strict punishment>. 4. Absolute; requiring no
showing offault <strict liability>.
strict construction. See CONSTRUCTION.
strict constructionism. See CONSTRUCTIONISM.
strict constructionist. See CONSTRUCTIONIST.
strict foreclosure. See FORECLOSURE.
stricti juris (strik-tI joor-is). [Latin] 1. Ofstrict right of
law; according to the exact law, without extension or
enhancement in interpretation . This term was often
applied to servitudes because they are a restriction on
the free exercise ofproperty rights. 2. Roman law. (Of a
contract) required to be interpreted strictly on its terms,
regardless ofcircumstances. See BONA FIDES (2).
strict interpretation. See INTERPRETATION.
strictissimi juris (strik-tis-~-mI joor-is). [Latin] Of the
strictest right or law; to be interpreted in the strict
est manner. This term was usu. applied to certain
statutes, esp. those imposing penalties or restraining
natural liberties.
strict liability. See LIABILITY.
strict-liability crime. See CRIME.
strict-liability offense. See OFFENSE (1).
stricto jure (strik-toh joor-ee). [Latin] In strict law.
strict products liability. See PRODUCTS LIABILITY.
strict rule. See SPECIFIC-PURPOSE RULE.
strict scrutiny. (1941) Constitutional law. The standard
applied to suspect classifications (such as race) in equal
protection analysis and to fundamental rights (such as
voting rights) in due-process analysis . Under strict
scrutiny, the state must establish that it has a compel
ling interest that justifies and necessitates the law in
question. See COMPELLING-STATE-INTEREST TEST;
SUSPECT CLASSIFICATION; FUNDAMENTAL RIGHT. Cf.
INTERMEDIATE SCRUTINY; RATIONAL-BASIS TEST.
[Cases: Constitutional Law C::=3062,3901.]
strict settlement. See SETTLEMENT (1).
strict test. Evidence. The principle that disclosure of a
privileged document, even when inadvertent, results in
a waiver of the attorney-client privilege regarding the
document, unless all possible precautions were taken
to protect the document from disclosure. Cf. LENIENT
TEST; HYDRAFLOW TEST. [Cases; Privileged Commu
nications and Confidentiality
strictum jus (strik-t~m j<lS). See JUS STRICTUM.
strict underwriting. See standby underwriting under
UNDERWRITING.
strike, fl. (1810) 1. An organized cessation or slowdown
of work by employees to compel the employer to
meet the employees' demands; a concerted refusal by
employees to work for their employer, or to work at their customary rate ofspeed, until the employer grants
the concessions that they seek. Also termed walkout.
Cf. LOCKOUT; BOYCOTT; PICKETING. [Cases: Labor and
Employment
ca'canny strike. See slowdown strike.
economic strike. A strike resulting from an economic
dispute with the employer (such as a wage dispute); a
dispute for reasons other than unfair labor practices.
An employer can permanently replace an economic
striker but cannot prevent the worker from coming
back to an unreplaced position simply because the
worker was on strike.
general strike. A strike organized to affect an entire
industry.
illegal strike. 1. A strike using unlawful procedures. 2.
A strike to obtain unlawful objectives, as in a strike
to force an employer to stop doing business with a
particular company.
jurisdictional strike. A strike resulting from a dispute
between members of different unions over work
assignments.
organizational strike. See recognition strike.
outlaw strike. See wildcat strike.
quickie strike. See wildcat strike.
recognition strike. A strike by workers seeking to force
their employer to acknowledge the union as their col
lective-bargaining agent. After the National Labor
Relations Act was passed in 1935, recognition strikes
became unnecessary. Under the Act, the employer is
required to recognize an NLRB-certified union for
bargaining purposes. Also termed organizational
strike.
secondary strike. A strike against an employer because
that employer has business dealings with another
employer directly involved in a dispute with the
union. See secondary boycott under BOYCOTT; sec
ondary picketing under PICKETING.
sit-down strike. A strike in which employees occupy
the workplace but do not work. See SIT-IN.
slowdown strike. A strike in which the workers remain
on the job but work at a slower pace to reduce their
output. Also termed ca'canny strike.
sympathy strike. A strike by union members who have
no grievance against their own employer but who
want to show support for another union involved in
a labor dispute. [Cases: Labor and Employment
1385.]
whipsaw strike. A strike against some but not all
members ofa multiemployer association, called for
the purpose ofpressuring all the employees to negoti
ate a labor contract. Employers whose workers are
not on strike have the right to lock out employees to
exert counterpressure on the union. [Cases: Labor
and Employment C=J 1385.]
wildcat strike. A strike not authorized by a union or
by a collective-bargaining agreement. Also termed
outlaw strike; quickie strike.
2. The removal of a prospective juror from the jury
panel <a peremptory strike>. See CHALLENGE (2).
[Cases: Jury (;::;>83-142.] 3. A failure or disadvantage,
as bv a criminal conviction <a strike on one's record>.
4. P~rliamentary law. A form of the motion to amend
by deleting one or more words. See amendment by
striking out under AMENDMENT (3).
sight strike. The elimination ofa veniremember based
solely on appearance. See peremptory challenge under
CHALLENGE (2).
strike, vb. (14c) 1. (Of an employee or union) to engage
in a strike <the flight attendants struck to protest the
reduction in benefits>. 2. To remove (a prospective
juror) from a jury panel by a peremptory challenge
or a challenge for cause <the prosecution struck the
panelist who indicated an opposition to the death
penalty>. See peremptory challenge under CHALLENGE
(2). [Cases: Jury (;:=:>83-142.] 3. To expunge, as from
a record <motion to strike the prejudicial evidence>.
[Cases: Federal Civil Procedure (;::;~201S.] 4. Parlia
mentary law. To amend by deleting one or more words.
See amendment by striking out under AMENDMENT
(3). -Also termed (in sense 4) strike out.
strikebreaker. See SCAB.
strike down. (1894) To invalidate (a statute); to declare
void.
strike fund. A union fund that provides benefits to its
members who are on strike, esp. for subsistence while
the members are not receiving wages.
strike off. 1. (Of a court) to order (a case) removed from
the docket. 2. (Of an auctioneer or sheriff) to announce,
usu. by the falling of the hammer, that an item of
personal or real property has been sold.
strike out. See STRIKE (4).
strike price. See PRICE.
strike suit. See SUIT.
strike zone. Slang. The period in jury selection in which
veniremembers are subject to being struck by peremp
tory challenge before the jury is seated. _ If a court
requires 12 jurors and allows each side 10 peremptory
strikes, the strike zone would be the first 32 venire
members.
striking a jury. (1859) The selecting of a jury out of all
the candidates available to serve on the jury; esp., the
selecting of a special jury. See struck jury, special jury
under JURY. [Cases: Jury C:)71.]
striking off the roll. See DISBARMENT.
striking price. See strike price under PRICE.
string of title. See CHAIN OF TITLE (1).
strip, n. (16c) 1. The act of separating and selling a bond's
coupons and corpus separately. 2. The act ofa tenant
who, holding less than the entire fee in land, spoils or unlawfully takes something from the land. [Cases:
Landlord and Tenant (;:=:>55(2).]
STRIP (strip). abbr. SEPARATE TRADING OF REGISTERED
INTEREST AND PRINCIPAL OF SECURITIES.
stripped mortgage-backed security. See SECURITY.
stripper well. See WELL,
strip search. See SEARCH.
strong-arm clause. See CLAUSE.
strongly corroborated. (lSc) (Of testimony) supported
from independent facts and circumstances that are
powerful, satisfactory, and clear to the court and jury.
strong mark. See strong trademark under TRADE
MARK.
strong market. See bull market under MARKET.
strong trademark. See TRADEMARK.
struck jury. See JURY.
struck off. 1. Removed from an active docket, usu.
because ofa want ofprosecution or jurisdiction. [Cases:
Trial G'-::>14.2. BrE. Removed from the register ofquali
fied persons and, in the case ofa professional, forbidden
to practice. [Cases: Attorney and Client G~38, 39.]
structural alteration. See ALTERATION (1).
structural takeover defense. See TAKEOVER DEFENSE.
structural unemployment. See UNEMPLOYMENT.
structure. (15c) 1. Any construction, production, or piece
ofwork artificially built up or composed ofparts pur
posefully joined together <a building is a structure>.
2. The organization of elements or parts <the corpo
rate structure>. 3. A method of constructing parts <the
loan's payment structure was a financial burden>.
structured security. See SECURITY.
structured settlement. See SETTLEMENT (2).
student-benefit theory. A principle that allows state
funds to be provided to private-school pupils if the
allotment can be justified as benefiting the child. -The
Supreme Court upheld a Louisiana law that allowed
the purchase of textbooks for all children throughout
the state even those in private schools -under this
theory. Cochran v, Louisiana State Bd. ofEduc., 281 U.S.
370,50 S.Ct. 335 (1930). Also termed child-benefit
theory. [Cases: Schools ~'-::;,3.]
study furlough. See study release under RELEASE.
study release. See RELEASE.
stuff gown. 1. The professional robe worn by barristers
ofthe outer bar who have not been appointed Queen's
Counsel. 2. A junior barrister. Cf. SILK GOWN.
stultify, vb. (18c) 1. To make (something or someone)
appear stupid or foolish <he stultified opposing coun
sel's argument>. 2. To testify about one's own lack of
mental capacity. 3. To contradict oneself, as by denying
what one has already alleged.
stultiloquium (st'll-ti-loh-kwee-<lm). [fr. Latin stultus
"foolish" + loqui "to speak"] Hist. A frivolous pleading
1560 stumpage
punishable by fine. _ This may have been the origin of
the beaupleader. See BEAUPLEADER.
stumpage (stamp-ij). (1835) 1. The timber standing on
land. 2. The value of the standing timber. 3. A license
to cut the timber. [Cases: Logs and Logging 4.
The fee paid for the right to cut the timber. [Cases: Logs
and Logging ~1-4.]
stuprum (st[y]oo-prilm), n. [Latin] Roman & civil law.
Disgrace by unchastity; a man's illegal sexual |
-prilm), n. [Latin] Roman & civil law.
Disgrace by unchastity; a man's illegal sexual inter
course with a woman, usu. a virgin or widow, or with
a male (pederasty). PI. stupra.
"The law refers to stuprum and adultery indiscriminately
and with rather a misuse of terms. But properly speaking
adultery is committed with a married woman, the name
being derived from children conceived by another (alter);
stuprum, however, is committed against a virgin or a
widow; the Greeks call it corruption." Digest ofJustinian
48.5.6.1 (Papinian, De Adulteriis 1).
STY. See single transferable vote under VOTE (1).
style, n. 1. A case name or designation <the style of the
opinion is Connor v. Gray>. -Also termed title. Cf.
CAPTION (1). 2. Scots law. A form of writ or deed used
in conveyancing. _ A book of styles is essentially a
formbook; a typical Scottish example is John Hendry'S
Styles ofDeeds and Instruments (2d ed. 1862).
stylized drawing. See special-form drawing under
DRAWING.
s.u. abbr. Straight up. -When a prosecutor writes this
on a defendant's file. it usu. means that the prosecu
tor plans to try the case -that is, not enter into a plea
bargain.
suable, adj. (17c) 1. Capable of being sued <a suable
party>. [Cases: Action ~14; Parties (::=>21.]2. Capable
ofbeing enforced <a suable contract>. suability, n.
sua potestas (s[yloo-a pa-tes-tils or -tas). [Latin] Hist. The
natural power that one has over oneself.
suapte natura (s[y]oo-ap-tee nil-t[y]oor-<l). [Latin] In its
own nature as in suapte natura sterilia ("barren of
its own nature").
sua sponte (s[y]OO-il spon-tee). [Latin "of one's own
accord; voluntarily"] Without prompting or suggestion;
on its own motion <the court took notice sua sponte
that it lacked jurisdiction over the case>.
sub (sab). [Latin] Under; upon.
sub. See subsidiary corporation under CORPORATION.
subagent. See AGENT (2).
subaltern (s<lb-awl-tarn), n. An inferior or subordinate
officer.
subassignee. See ASSIGNEE.
sub ballivus (silb ba-h-vas), n. [Law Latin] Hist. An
undersheriff; a sheriff's deputy. See BAILIWICK.
subcbapter-C corporation. See C corporation under
CORPORATION.
subchapter-S corporation. See Scorporation under COR
PORATION. sub colore juris (silb b-Ior-ee joor-is). [Latin] Under
color of right; under an appearance of right.
sub colore officii (sab ka-lor-ee il-fish-ee-I). [Law Latin)
His!. Under color ofoffice.
subcombination claim. See PATENT CLAIM.
subcommittee. See COMMITTEE.
sub conditione (s<lb kiln-dish-ee-oh-nee). [Law Latin]
Under condition. _ This term creates a condition in
a deed.
subcontract. See CONTRACT.
subcontractor. (1834) One who is awarded a portion
of an existing contract by a contractor, esp. a general
contractor. -For example, a contractor who builds
houses typically retains subcontractors to perform spe
cialty work such as installing plumbing. laying carpet,
making cabinetry, and landscaping -each subcontrac
tor is paid a somewhat lesser sum than the contractor
receives for the work. [Cases: Contracts 198.]
sub cura mariti (s<lb kyoor-a mil-rI-tI). [Law Latin] Hist.
Under the care ofone's husband.
sub cura uxoris (sab kyoor-il ilk-sor-is). [Law Latin] Hist.
Under the care ofone's wife.
sub curia (sab kyoor-ee-il). [Latin] Under law.
sub disjunctione (sab dis-jilngk-shee-oh-nee). [Latin] In
the alternative.
subditus (sab-dil-tils). [Latin] Hist. Someone under
another's power; a vassal.
subdivision, n. (15c) 1. The division of a thing into
smaller parts. 2. A parcel ofland in a larger develop
ment. subdivide, vb.
illegal subdivision. The division ofa tract ofland into
smaller parcels in violation oflocal subdivision regu
lations, as when a developer begins laying out streets,
installing sewer and utility lines, and constructing
houses without the local planning commission's
authorization. [Cases: Zoning and Planning
372.1.]
legal subdivision. The governmentally approved
division of a tract ofland into smaller parcels using
ordinary and legally recognized methods for sur
veying and platting land and publicly
the results. [Cases: Zoning and Planning
381.5.]
subdivision exaction. A charge that a community
imposes on a subdivider as a condition for permit
ting recordation of the subdivision map and sale of
the subdivided parcels. [Cases: Zoning and Planning
C=382.4.]
subdivision map. (1887) A map that shows how a parcel
ofland is to be divided into smaller lots, and generally
showing the layout and utilities. [Cases: Zoning and
Planning ~29.5, 245.]
sub domino (s<lb dom-il-noh). [Law Latin] His!. Under
a lord.
subfeudum (sab-fyoo-dam). [Law Latin] Hist. A subfee.
1561
subinfeudate (s<lb-in-fyoo-dayt), vb. Hist. (Of a subvas
sal) to grant land to another, who then holds the land
as the grantor's vassal rather than as the vassal of the
grantor's superior. Also termed subinfeud (s<lb-in
fyood).
"[AI more common method of obtaining the annual quota
of knights was to subinfeudate portions of the baronial
lands to individual knights in exchange for their obliga
tions to spend a fixed portion of time annually in the king's
or baron's service. A knight who so received a portion of
a baron's land would hold of his baron in much the same
way as the baron held ofthe king." Thomas F. Bergin & Paul I
G. Haskell, Preface to Estates in Land and Future Interests
4 (2d ed. 1984).
subinfeudation (sab-in-fyoo-day-shan), n. Hist. The
system under which the tenants in a feudal system
granted smaller estates to their tenants, who in turn did
the same from their pieces ofland. -As this system pro
ceeded down the social scale, the lords were deprived
of their feudal profits, as a result of which the system
was suppressed by the statute Quia Emptores in 1290.
Instead of subinfeudation, alienation in the modern
sense was introduced. Cf. INFEUDATION; SUPERINFEU
DATION.
"The first step taken in mitigation of the rigors of the law
of feuds, and in favor of voluntary alienations, was the
countenance given to the practice of subinfeudations. They
were calculated to elude the restraint upon alienation, and
consisted in carving out portions of the fief to be held of
the vassal by the same tenure with which he held of the
chief lord of the fee. The alienation prohibited by the feudal
law, all over Europe, was the substitution of a new feuda
tory in the place of the old one; but subinfeudation was a
feoffment by the tenant to hold of himself. The purchaser
became his vassal, and the vendor still continued liable to
the chief lord for all the feudal obligations. Subinfeudations
were encouraged by the subordinate feudatories, because
they contributed to their own power and independence; but
they were found to be injurious to the fruits of tenure, such
as reliefs, marriages and wardships, belonging to the para
mount lords." 4 James Kent, Commentaries on American
Law *443-44 (George Comstock ed., 11th ed. 1866).
subinfeudatory (sab-in-fyoo-d;Hor-ee), n, A tenant
holding lands by subinfeudation.
subjacent (sab-jay-sant), adj. (l6c) Located underneath
or below <the land's subjacent support>.
subjacent support. See SUPPORT (4).
subject, adj. Referred to above; having relevance to the
current discussion <the subject property was then sold
to Smith>.
subject, n. (14c) 1. One who owes allegiance to a sov
ereign and is governed by that sovereign's laws <the
monarchy'S subjects>.
"Speaking generally, we may say that the terms subject
and citizen are synonymous. Subjects and citizens are
alike those whose relation to the state is personal and not
merely territorial, permanent and not merely temporary.
This equivalent, however, is not absolute. For in the first
place, the term subject is commonly limited to monarchical
forms of government, while the term citizen is more spe
cially applicable in the case of republics. A British subject
becomes by naturalisation a citizen of the United States of
America or of France. In the second place, the term citizen
brings into prominence the rights and privileges of the
status, rather than its correlative obligations, while the
reverse is the case with the term subject. Finally it is to be subject-matter-neutral
noticed that the term subject is capable of a different and
wider application, in which it includes all members ofthe
body politic, whether they are citizens (i.e., subjects stricto
sensu) or resident aliens. All such persons are subjects, all
being subject to the power of the state and to its jurisdic
tion, and as owing to it, at least temporarily, fidelity and
obedience." John Salmond, Jurisprudence 133 (Glanville L.
Williams ed . 10th ed. 1947).
liege subject. See natural-born subject.
natural-born subject. A person born within the
dominion of a monarchy, esp. England, -Also
termed liege subject. Cf. NATIONAL.
2. The matter of concern over which something is
created <the subject of the statute>. Also termed (in
sense 2) subject matter.
subject, adj. Referred to above; haVing relevance to the
current discussion <the subject property was then sold
to Smith>.
subjection. (14c) 1. The act of subjecting someone to
something <their subjection to torture was unconscio
nable>. 2. The condition of a subject in a monarchy;
the obligations surrounding such a person <a subject,
wherever reSiding, owes fidelity and obedience to the
Crown, while an alien may be released at will from
all such ties of subjection>. 3. The condition of being
subject, exposed, or liable; liability <the defendants'
subjection to the plaintiffs became clear shortly after
the trial began>. -Also termed (in sense 3) liability;
susceptibility.
subjective, adj. (ISc) 1. Based on an individual's per
ceptions, feelings, or intentions, as opposed to exter
nally verifiable phenomena <the subjective theory
of contract -that the parties must have an actual
meeting of the minds -is not favored by most courts>.
2. Personal; individual <subjective judgments about
popular music>. Cf. OBJECTIVE.
subjective ethics. See MORAL RELATIVISM,
subjective impossibility. See IMPOSSIBILITY.
subjective meaning. See MEANING.
subjective method. See SHERMAN-SORRELLS DOC~
TRINE.
subjective novation. See NOVATION.
subjective standard. See STANDARD.
subjective theory of contract. (192S) The doctrine
(now largely outmoded) that a contract is an agree
ment in which the parties have a subjective meeting
of the minds. Often shortened to subjective theory.
See MEETING OF THE MINDS. Cf. OBJECTIVE THEORY OF
CONTRACT. [Cases: Contracts
subject matter. 06c) 1. The issue presented for consid
eration; the thing in which a right or duty has been
asserted; the thing in dispute. 2. PATENTABLE SUBJECT
MATTER. -Sometimes written (as a noun) subject
matter. See SUBJECT (2); CORPUS (1). -subject-matter,
adj.
subject-matter jurisdiction. See JURISDICTION.
subject-mauer-neutral. See NEUTRAL.
1562 subject-matter test
subject-matter test. (1974) A method of determining
whether an employee's communication with a corpora
tion's lawyer was made at the direction ofthe employ
ee's supervisors and in the course and scope of the
employee's employment, so as to be protected under
the attorney-client privilege, despite the fact that the
employee is not a member of the corporation's control
group. Harper & Row Pubs., Inc. v. Decker, 423 F.2d
487 (7th Cir. 1970), afT d per curiam by equally divided
Court, 400 U.S. 348, 91 S.Ct. 479 (1971). -Also termed
Decker test. Cf. CONTROL-GROUP TEST. [Cases: Privi
leged Communications and Confidentiality (;::::; 123.]
subject-matter waiver. See WAIVER (1).
subject of an action. The right or property at issue in a
lawsuit; the basis ofa legal claim. Cf. object ofan action
under OBJECT (2). [Cases: Action (;::::; 1.]
subject of a right. (1876) 1. The owner of a right; the
person in whom a legal right is vested |
subject of a right. (1876) 1. The owner of a right; the
person in whom a legal right is vested. 2. OBJECT OF
A RIGHT.
subject to liability, adj. (Of a person) susceptible to a
lawsuit that would result in an adverse judgment;
specif., having engaged in conduct that would make
the actor liable for another's injury because the actor's
conduct is the legal cause of the injury, the injured
party having no disability for bringing the lawsuit.
[Cases: Action (;::::; 14.]
subject to open. (1906) Denoting the future interest of
a class ofpeople when this class is subject to a possible
increase or decrease in number.
sub judice (sdb joo-di-see also suub yoo-di-kay), adv.
[Latin "under a judge"] (17c) Before the court or judge
for determination; at bar <in the case sub judice, there
have been no out-of-court settlements> . Legal writers
sometimes use "case sub judice" where "the present
case" would be more comprehensible.
subjugation. See DEBELLATIO.
sublease, n. A lease by a lessee to a third party, convey
ing some or all ofthe leased property for a term shorter
than or equal to that ofthe lessee, who retains a rever
sion in the lease. -Also termed subtenancy; deriva
tive lease; and (esp. in England) underlease. [Cases:
Landlord and Tenant (;::::;80.] -sublease, sublet, vb.
sublessee. (1882) A third party who receives by lease
some or all ofthe leased property from a lessee. -Also
termed subtenant and (esp. in England) undertenant.
[Cases: Landlord and Tenant (;::::;80.]
sublessor. (1884) A lessee who leases some or all of the
leased property to a third party. -Also termed (esp.
in England) underlessor. [Cases: Landlord and Tenant
(;::::;80.]
sublicense. (1880) A license or contract granting to a
third party a portion or all ofthe rights granted to the
licensee under an original license.
submarine patent. See PATENT (3).
submission, n. (14c) 1. A yielding, or readiness to yield,
to the authority or will ofanother <his resistance ended
in an about-face: complete submission>. 2. A contract in which the parties agree to refer their dispute to a
third party for resolution <in their submission to arbi
tration, they referred to the rules of the American
Arbitration Association>. [Cases: Alternative Dispute
Resolution (;::::; 160-174.] 3. An advocate's argument
<neither the written nor the oral submissions were par
ticularly helpful>. -submit, vb.
submission bond. See BOND (2).
submission date. See DATE.
submission of controversy. 1. The completion of the
series ofacts by which the parties to a particular dispute
place any matter of real controversy existing between
them before a court with jurisdiction for a final deter
mination. 2. A statutory action in which the parties
submit their dispute to a court that has jurisdiction,
agree on and sign a statement of facts, swear that the
controversy is real, and swear that the suit is brought in
good faith. [Cases: Submission of Controversy (;::::; 1.]
submission to a finding. The admission to facts sufficient
to warrant a finding ofguilt. -Also termed admission
to sufficient facts.
submission to the jury. (1818) The process by which
a judge gives a case to the jury for its consideration
and verdict, usu. after all evidence has been presented,
arguments have been completed, and jury instructions
have been given.
submit, vb. To end the presentation offurther evidence
in (a case) and tender a legal position for decision <case
submitted, Your Honor>.
sub modo (sdb moh-doh). [Latin] Subject to a modifica
tion or qualification <the riparian landowner enjoys
the property sub modo, i.e., subject to the right of the
public to reserve enough space for levees, public roads,
and the like>.
submortgage. See MORTGAGE.
sub nomine (sdb nom-d-nee). [Latin] (1861) Under the
name of. This phrase, typically in abbreviated form,
is often used in a case citation to indicate that there
has been a name change from one stage of the case to
another, as in Guernsey Memorial Hosp. v. Secretary of
Health and Human Servs., 996 F.2d 830 (6th Cir. 1993),
rev'd sub nom. Shalala v. Guernsey Memorial Hosp., 514
U.S. 87, US S.Ct. 1232 (1995). -Abbr. sub nom.
subnotation. RESCRIPT (3).
subordinate (sd-bor-dd-nit), adj. (15c) 1. Placed in or
belonging to a lower rank, class, or position <a subor
dinate lien>. 2. Subject to another's authority or control
<a subordinate lawyer>.
subordinate (sd-bor-dd-nayt), vb. (17c) To place in a lower
rank, class, or position; to assign a lower priority to
<subordinate the debt to a different class of claims>.
subordinated bond. See junior bond under BOND (3).
subordinate debenture. See DEBENTURE.
subordinate debt. See DEBT.
subordinate legislation. See LEGISLATION.
1563
subordinate officer. See OFFICER (1).
subordinate political power. See POLITICAL POWER.
subordination, n. 1. The act or an instance of moving
something (such as a right or claim) to a lower rank,
class, or position <subordination of a first lien to a
second lien>. [Cases: Secured Transactions 147.]
2. Parliamentary law. The status and relation of a lower
ranking governing document to a higher-ranking
one. _ A higher-ranking document supersedes and
controls a subordinate document if there is any incon
sistency between them. See governing document under
DOCUMENT. -subordinate, adj.
subordination clause. 1. In a legal instrument, a clause
that explicitly acknowledges the one party's claim
of interest is inferior to that of another party. 2. A
covenant in a junior mortgage enabling the first lien
to keep its priority in case of renewal or refinancing.
rCases: Mortgages 3. In a legal instrument,
a clause that explicitly subjects its provisions to those
in a higher-ranking document.
subordination agreement. See AGREEMENT.
suborn (s;}-born), vb. [Latin subonare, from sub "secretly
+ ornare "to furnish; equip"] (l6c) 1. To induce (a
person) to commit an unlawful or wrongful act, esp.
in a secret or underhanded manner. 2. To induce (a
person) to commit perjury. 3. To obtain (perjured tes
timony) from another. -subornation (s;}b-or-nay
sh;}n), n. -suborner (sa-bor-n;}r), n.
subornation of perjury. (16c) The crime ofpersuading
another to commit perjury. Sometimes shortened to
subornation. [Cases: Perjury (;::::/ 13.]
subparagraph form. A style of legal drafting that uses
indented subparagraphs for enumerated items; esp.,
a style of drafting patent claims in this form so as
to distinguish clearly between each of the claimed
elements. -Also termed tabular form. Cf. COLON
SEMICOLON FORM; OUTLINE FORM; SINGI.E-PARAGRAPH
FORM.
subpartnership. See PARTNERSHIP.
sub pede sigilli (s;}b pee-dee si-jil-I). [Latin] Under the
foot of the seal.
SUbpena. See SUBPOENA.
subpermittee. See PERMITTEE.
subpoena (s;}-pee-n<l), n. [Latin "under penalty"] (I5c) A
writ or order commanding a person to appear before a
court or other tribunal, subject to a penalty for failing
to comply. Also spelled subpena. [Cases: Witnesses
PI. subpoenas.
accommodation subpoena. Seefriendly subpoena.
administrative subpoena. A subpoena issued by an
administrative agency to compel an individual to
provide information to the agency. -The subpoena
may take the form of a subpoena ad testificandum or
a subpoena duces tecum. [Cases: Administrative Law
and Procedure 358.] subrogation
alias subpoena (ay-Iee-;}s s;}-pee-n<l). (18c) A second
subpoena issued after an initial subpoena has failed.
deposition subpoena. 1. A subpoena issued to summon
a person to make a sworn statement in a time and
place other than a trial. [Cases: Federal Civil Pro
cedure 1353; Pretrial Procedure 129.] 2. In
some jurisdictions, a subpoena duces tecum. [Cases:
Federal Civil Procedure C=:> 1354; Pretrial Procedure
G=130.]
friendly subpoena. A subpoena issued to a person or
entity that is willing to testify or produce documents,
but only if legally required to do so. -The subpoena
may protect the information provider from retalia
tion from others because the provider is required to
comply. Also termed accommodation subpoena.
subpoena ad testificandum (s;}-pee-n;} ad tes-t<l-fi
kan-d;}m). [Law Latin] (1807) A subpoena ordering
a witness to appear and give testimony. [Cases: Wit
nesses
subpoena duces tecum (s;}-pee-n<l d[y]oo-seez tee-bm
also doo-sn tay-kam). [Law Latin] (18c) A subpoena
ordering the witness to appear in court and to bring
specified documents, records, or things. -Also
termed deposition subpoena duces tecum. [Cases:
Witnesses (;::::/16.)
subpoena, vb. (l7c) 1. To serve with a subpoena to appear
before a court or other tribunal <subpoena the material
witnesses>. [Cases: Witnesses <::=>7.) 2. To order the
production of(documents or other things) by subpoena
duces tecum <subpoena the corporate records>. Also
spelled subpena. [Cases: Witnesses (;::::/16.]
subpoenal (s<l-pee-n;}!), adj. (1969) Required or done
under penalty, esp. in compliance with a subpoena.
sub potestate (sab poh-tes-tay-tee). [Latin] Under the
power of another, as with a child or other person not
sui juris. Cf. SUI JURIS.
sub potestate parentis (sab poh-tes-tay-tee p;}-ren-tis).
[Latin] Hist. Under the authority of a parent.
sub potestate viri. Hist. (Of a wife) under the protection
of a husband.
subprime loan. See LOAN.
subreptio (s<lb-rep-shee-oh), n. [Latin "surreptitious
removal"] Roman law. 1. Theft. 2. The obtaining of a
grant from the emperor under false pretenses. -Also
termed (in French law) subreption. PI. subreptiones
(s;}b-rep-shee-oh-neez).
subreptione vel obreptione (s<lb-rep-shee-oh-nee vel
ob-rep-shee-oh-nee), adv. [btin) Hist. By deceit or
surprise; by concealing the truth or affirming a false
hood.
subrogate (sab-r;}-gayt), vb. (l5c) To substitute (a person)
for another regarding a legal right or claim. [Cases:
Subrogation (;::::/1.]
subrogation (s;}b-r;}-gay-sh;}n), n. (I5c) 1. The substi
tution of one party for another whose debt the party
pays, entitling the paying party to rights, remedies, or
securities that would otherwise belong to the debtor .
For example, a surety who has paid a debt is, by subro
gation, entitled to any security for the debt held by the
creditor and the benefit of any judgment the creditor has
against the debtor, and may proceed against the debtor
as the creditor would. Subrogation most commonly
arises in relation to insurance policies. [Cases: Sub
rogation (::::0 1,33.] 2. The equitable remedy by which
such a substitution takes place. 3. The principle under
which an insurer that has paid a loss under an insur
ance policy is entitled to all the rights and remedies
belonging to the insured against a third party with
respect to any loss covered by the policy. See EQUITY
OF SUBROGATION; ANTISUBROGATION RULE. [Cases:
Insurance (::::03509,3513.]
;'Subrogation is equitable assignment. The right comes
into existence when the surety becomes obligated, and
this is important as affecting priorities; but such right of
subrogation does not become a cause of action until the
debt is fully paid. Subrogation entitles the surety to use any
remedy against the principal which the creditor could have
used, and in general to enjoy the benefit of any advantage
that the creditor had, such as a mortgage, lien, power to
confess judgment, to follow trust funds, to proceed against
a third person who has promised either the principal or the
creditor to pay the debt:' Laurence P. Si mpson, Handbook
on the Law ofSuretyship 205 (1950).
"Subrogation simply means substitution of one person
for another; that is, one person is allowed to stand in the
shoes of another and assert that person's rights against
the defendant. Factually, the case arises because, for some
justifiable reason, the subrogation plaintiff has paid a debt
owed by the defendant." Dan B |
because, for some
justifiable reason, the subrogation plaintiff has paid a debt
owed by the defendant." Dan B. Dobbs, Law of Remedies
4.3, at 404 (2d ed. 1993).
conventional subrogation. Subrogation that arises by
contract or by an express act of the parties. [Cases:
Subrogation ~~27.]
legal subrogation. Subrogation that arises by operation
oflaw or by implication in equity to prevent fraud or
injustice. Legal subrogation usu. arises when (1) the
paying party has a liability, claim, or fiduciary rela
tionship with the debtor, (2) the party pays to fulfill
a legal duty or because ofpublic policy, (3) the paying
party is a secondary debtor, (4) the paying party is a
surety, or (5) the party pays to protect its own rights
or property. -Also termed equitable subrogation.
[Cases: Subrogation (::::01-25.]
real subrogation. Civil law. The substitution of one
thing for another.
subrogation clause. 1. Insurance. A provision in a
property- or liability-insurance policy whereby the
insurer acquires certain rights upon paying a claim
for a loss under the policy . These rights include (1)
taking legal action on behalf ofthe insured to recover
the amount of the loss from the party who caused the
loss, and (2) receiving a full or proportionate amount
of the benefits (such as disability compensation) paid
to the insured under a statutory plan. 2. Oil & gas. A
provision in an oil-and-gas lease permitting the lessee
to pay taxes, mortgages, or other encumbrances on the
leased property and to recover those payments out of
future proceeds under the lease. subrogative (sab-rG-gay-tiv), ad). Of or relating to sub
rogation <subrogative rights>. -Also termed subroga
tory; subrogational.
subrogee (8Gb-rG-gee). One who is substituted for another
in having a right, duty, or claim; esp., the person or
entity that assumes the right to attempt to collect on
another's claim against a third party by paying the
other's claim-related debts or expenses . An insur
ance company frequently becomes a subrogee after
paying a policy claim, as a result of which it is then in
a position to sue a tortfeasor who injured the insured
or otherwise caused harm.
subrogor (sGb-rG-gor). One who allows another to be
substituted for oneself as creditor, with a transfer of
rights and duties; esp., one who transfers a legal right
to collect a claim to another in return for payment of
the transferor's claim-related debts or expenses.
sub rosa (sdb roh-zG), adj. [Latin "under the rose"] Rist.
Confidential; secret; not for publication.
sub salvo et securo conductu (5Gb sal-voh et si-kyoor
oh kGn-d3k-t[y]00). [Law Latin] Rist. Under safe and
secure conduct. This phrase was used in writs of
habeas corpus.
subscribed capital. See CAPITAL.
subscribed stock. See STOCK.
subscribing witness. See WITNESS.
subscriptio (sdb-skrip-shee-oh), n. [Latin] Roman law. 1.
A Signature, esp. a name written under or at the bottom
of a document to authenticate it; an imperial rescript.
2. A signature to a will, required in certain cases in
addition to the seals of witnesses. PI. subscriptiones
(sGb-skrip-shee-oh -neez).
subscription, n. (I5c) 1. The act of signing one's name
on a document; the signature so affixed. 2. Securities.
A written contract to purchase newly issued shares of
stock or bonds. Also termed (in connection with
stock) stock subscription. [Cases: Corporations
75.1.] 3. An oral or a written agreement to contribute a
sum ofmoney or property, gratuitously or with consid
eratiol1, to a specific person or for a specific purpose.
Also termed subscription contract. 4. RESCRIPT (3).
[Cases: Subscriptions ~~1.J -subscribe, vb. sub
scriber, n.
subscription contract. See SUBSCRIPTION (3).
subscription list. An enumeration of subscribers to an
agreement, periodical, or service.
subscription price. The fixed price at which investors
can buy shares in a new stock offering before the shares
are offered to the public. [Cases: Corporations
158.]
subscription privilege. See PREEMPTIVE RIGHT.
subscription right. A certificate evidencing a share
holder's right (known as apreemptive right) to purchase
newly issued stock before the stock is offered to the
public. Subscription rights have a market value and
are actively traded because they allow the holder to
1565
purchase stock at favorable prices. -Also termed
stock right. See PREEMPTIVE RIGHT. [Cases; Corpora
tions 0=>78,158.]
subscription warrant. See WARRANT (4).
subscriptor (s"b-skrip-tor or -t"r), n. [Latin] Roman law.
1. A person who made or signed a written accusation
ofcrime against a particular person. 2. The witness to
a will. Pi. subscriptores.
subsellia (s"b-sel-ee-,,), n. [Latin fro sub "under" + sella
"seat"] Roman law. Lower seats in a court, usu. occupied
by the parties or their witnesses, as distinguished from
the seat ofthe tribunal.
subsequent, adj. (15c) (Of an action, event, etc.) occur
ring later; coming after something else.
subsequent-advance rule. Bankruptcy. The principle
that a preferential transfer by the debtor will not be
avoided or rescinded by the debtor's bankruptcy trustee
if(1) the creditor extended new value to the debtor after
receiving the preferential transfer, (2) the new value is
unsecured, and (3) the new value remains unpaid after
its transfer. II USCA 547(c)(4). [Cases; Bankruptcy
0=>2613(4).]
subsequent creditor. See CREDITOR.
subsequente copula (s"b-si-kwen-tee kop-p-Ia). [Law
Latin] Hist. Carnal intercourse having followed.
subsequent negligence. See NEGLIGENCE.
subsequent-negligence doctrine. See LAST-CLEAR
CHANCE DOCTRINE.
subsequent remedial measure. (usu. pl.) (1956) Evidence.
An action taken after an event, which, if taken before
the event, would have reduced the likelihood of the
event's occurrence. _ Evidence ofsubsequent remedial
measures, such as repairs made after an accident or
the installation of safety equipment, is not admissible
to prove negligence, but it may be admitted to prove
ownership, control, feasibility, or the like. Fed. R. Evid.
407. [Cases: Evidence C='219.10.]
subservant. See subagent under AGENT (2).
subsidence (sab-srd-an[tls), n. Any downward movement
of the soil from its natural position; esp., a sinking of
soiL
subsidiarie (sab-sid-ee-air-ee-ee). [Law Latin] Scots law.
Subsidiarily.
subsidiary (s"b-sid-ee-er-ee), adj. Subordinate; under
another's controL See subsidiary corporation under
CORPORATION.
subsidiary, n. See subsidiary corporation under CORPO
RATION.
subsidiary corporation. See CORPORATION.
subsidiary merger. See triangular merger under
MERGER.
subsidiary motion. See MOTION (2).
subsidy (s<lb-sa-dee), n. (l4c) 1. A grant, usu. made by
the government, to any enterprise whose promotion
is considered to be in the public interest . Although substantial-capacity test
governments sometimes make direct payments (such
as cash grants), subsidies are usu. indirect. They may
take the form of research-and-development support,
tax breaks, provision of raw materials at below-mar
ket prices, or low-interest loans or low-interest export
credits guaranteed by a government agency. -Also
termed grant. [Cases; United States <>=82(1).] 2. A
specific financial contribution by a foreign government
or public entity conferring a benefit on exporters to
the United States . Such a subsidy is countervailable
under 19 USCA 1671, 1677. [Cases; Customs Duties
0=>21.5(2).]
countervailable subsidy (kown-t<lr-vayl-<l-b"l). A
foreign government's subsidy on the manufacture of
goods exported to another country, giving rise to the
importing country's entitlement to impose a coun
tervailing duty on the goods if their import caused
or threatens to cause material injury to domestic
industry. See countervailing duty under DUTY (4).
[Cases: Customs Duties 0=>21.5(2).]
3. lnt'llaw. Financial assistance given by one nation to
another to preserve the receiving nation's neutrality or
to support it in a war, even ifthe donor nation does not
directly participate. subsidize, vb.
sub sigillo (s"b si-jil-oh). [Latin "under the seal (of con
fessionrJ Hist.ln the strictest confidence.
sub silentio (s"b si-Ien-shee-oh). [Latin] (l7c) Under
silence; without notice being taken; without being
expressly mentioned (such as precedent sub silentio).
subsistence. (17c) Support; means ofsupport. See NEC
ESSARIES.
sub spe reconciliationis (s"b spee rek-dn-siI-ee-ay
shee-oh-nis). [Latin] Hist. Under the hope of recon
cilement.
substance. (l4c) ]. The essence ofsomething; the essen
tial quality ofsomething, as opposed to its mere form
<matter ofsubstance>. 2. Any matter, esp. an addictive
drug <illegal substance> <abuse ofa substance>.
substance-abuse evaluation and treatment. (1983) A
drug offender's court-ordered participation in a drug
rehabilitation program. -This type oftreatment is esp.
common in DUI cases. Abbr. SAET.
substantial-capacity test. (1968) Criminal law. The
Model Penal Code's test for the insanity defense, stating
that a person is not criminally responsible for an act if,
as a result ofa mental disease or defect, the person lacks
substantial capacity either to appreciate the criminality
of the conduct or to conform the conduct to the law.
This test combines elements of both the McNaghten
rules and the irresistible-impulse test by allowing con
sideration ofboth volitional and cognitive weaknesses.
This test was formerly used by the federal courts and
many states, but since 1984 many jurisdictions (includ
ing the federal courts) in response to the acquittal
by reason ofinsanity ofwould-be preSidential assassin
John Hinckley -have narrowed the insanity defense
and adopted a new test resembling the McNaghten
rules, although portions ofthe substantial-capacity test
1566 substantial-cause test
continue to be used. Model Penal Code 4.01. -Also
termed Model Penal Code test; MPC test; American Law
Institute test; ALI test. See INSANITY DEFENSE. [Cases:
Criminal Law C=:>48.]
substantial-cause test. (1929) Torts. The principle that
causation exists when the defendant's conduct is an
important or significant contributor to the plaintiff's
1l1Juries. Also termed substantial-factor test. Cf.
BUT-FOR TEST. [Cases: Negligence (;:::>380.]
substantial-certainty test. Copyright. The test for
deciding whether a second work was copied from the
first. -The question is whether a reasonable observer
would conclude with substantial certainty that the
second work is a copy. [Cases: Copyrights and Intel
lectual Property C=:>53(1).]
substantial change in circumstances. See CHANGE IN
CIRCUMST ANCES.
substantial-compliance rule. See SUBSTANTIAL-PER
FORMANCE DOCTRINE.
substantial-continuity doctrine. A principle for holding
a successor corporation liable for the acts of its prede
cessor corporation, ifthe successor maintains the same
business as the predecessor, with the same employees,
doing the same jobs, for the same supervisors, under
the same working conditions, and using the same pro
duction processes to produce the same products for the
same customers. Also termed continuity-of-enter
prise doctrine. Cf. MERE-CONTINUATION DOCTRINE.
[Cases: Corporations (;:::>445.1.]
substantial damages. See DAMAGES.
substantial equivalent. Patents. A device or process that
falls outside a patent claim's literal scope but performs
the same function in substantially the same way.
Also termed substantial eqUivalent ofa patented device.
See tripartite test. [Cases: Patents C=237.)
substantial error. See ERROR (2).
substantial evidence. See EVIDENCE.
substantial-evidence jurisdiction. See significant-con
nection jurisdiction under JURISDICTION.
substantial-evidence rule. (1938) The principle that
a reviewing court should uphold an administrative
body's ruling ifit is supported by evidence on which the
administrative body could reasonably base its decision.
[Cases: Administrative Law and Procedure
substantial-factor test. (1929) See St.:BSTANTIAL-CAUSE
TEST.
substantial justice. See JUSTICE (1).
substantially justified. (Of conduct, a position, etc.)
having a reasonable basis in law and in fact. -Under
the Equal Access to Justice Act, a prevailing party in
a lawsuit against the government will be unable |
in fact. -Under
the Equal Access to Justice Act, a prevailing party in
a lawsuit against the government will be unable to
recover its attorney's fees if the government's position
is substantially justified. [Cases: United States
147(10).]
substantial new question of patentability. Patents. A
significant, freshly arisen issue relating to the validity ofa patent, triggering the statutory threshold required
for the Director of the u.s. Patent and Trademark
Office to order that a patent's validity be reexamined.
-An examination cannot be reopened solely on issues
ofprior art and issues that came up during the original
examination. The Director's determination is final and
not appealable. 35 USCA 303-04. [Cases: Patents
136.J
substantial non infringing use. See COMMERCIALLY SIG
NIFICANT NON INFRINGING USE.
snbstantial performance. See PERFORMANCE.
substantial-performance doctrine. (1936) The rule
that if a good-faith attempt to perform does not pre
cisely meet the terms of an agreement or statutory
requirements, the performance will still be consid
ered complete if the essential purpose is accomplished,
subject to a claim for damages for the shortfall. -Under
the Uniform Probate Code, a will that is otherwise void
because some formality has not been followed may still
be valid under the substantial-performance doctrine.
But this rule is not widely followed. -Also termed sub
stantial-compliance rule. Cf. PERFECT-TENDER RULE.
[Cases: Contracts C=:>294.]
"There has arisen in the United States an indefinite doctrine
sometimes referred to as that of substantial performance.
It is a doctrine that deals not with performance of a duty as
a discharge thereof but with performance by the plaintiff
as a condition precedent to the active duty of performance
by the defendant. Where a defendant is sued for nonper
formance he cannot avoid paying damages by showing
that he substantially performed or came near performing
or gave something equally good; but he can always suc
cessfully defend if in fact some condition precedent to his
own duty has not been fulfilled by the plaintiff." William
R. Anson, Principles of the Law of Contract 422 (Arthur L.
Corbin ed., 3d Am. ed. 1919).
substantial possession. See pedis possessio under pos-
SESSIO.
substantial right. See RIGHT.
substantial similarity. See SIMILARITY.
substantial-step test. (1980) Crimina/law. 1be Model
Penal Code's test for determining whether a person is
guilty of attempt, based on the extent of the defendant's
preparation for the crime, the criminal intent shown,
and any statements personally made that bear on the
defendant's actions. Model Penal Code S.Ol(l)(c). See
ATTEMPT. [Cases: Criminal Law (>44.]
substantiate, vb. (I7c) To establish the existence or truth
of (a fact, etc.), esp. by competent evidence; to verify.
substantive consolidation. See CONSOLIDATION.
substantive crime. See substantive offense under OFFENSE
(1).
substantive due process. See DUE PROCESS.
substantive evidence. See EVIDENCE.
substantive examination. Patents. A patent examiner's
in-depth study of a patent application to determine
whether a patent should be granted.
1567
substantive felony. See substantive offense under OFFENSE
(1).
substantive law (sab-stan-tiv). (18c) The part ofthe law
that creates, defines, and regulates the rights, duties,
and powers ofparties. Cf. PROCEDURAL LAW.
"SO far as the administration ofjustice is concerned with
the application of remedies to violated rights, we may
say that the substantive law defines the remedy and the
right, while the law of procedure defines the modes and
conditions of the application of the one to the other." John
Salmond, jurisprudence 476 (Glanville L. Williams ed., 10th
ed.1947).
substantive main motion. See original main motion
under MOTION (2).
substantive motion. See original main motion under
MOTION (2).
substantive offense. See OFFENSE (1).
substantive right. See RIGHT.
substantive rule. See LEGISLATIVE RULE.
substantive un~onscionability. See UNCONSCIONABIL
ITY.
substitute, n. 1. One who stands in another's place <a
substitute for a party>. See SUBSTITUTION OF PARTIES;
SUBROGATION. 2. Civil law. A person named in a will
as heir to an estate after the estate has been held and
then passed on by another specified person (called the
institute). See INSTITUTE (5). 3. Parliamentary law.
A form of the motion to amend by replacing one or
more words with others. See amendment by substitut
ing under AMENDMENT (3). 4. Scots law. A deputy.
substitute, vb.
substitute amendment. See AMENDMENT (3).
substitute application. See PATENT APPLICATION.
substituted agreement. See NOVATION.
substituted basis. See BASIS.
substituted ~omplaint. See amended complaint under
COMPLAINT.
substituted contract. See CONTRACT.
substituted exe~utor. See EXECUTOR.
substituted-judgment doctrine. (1967) A principle that
allows a surrogate decision-maker to attempt to estab
lish, with as much accuracy as possible, what health
care decision an incompetent patient would make if
he or she were competent to do so. -The standard
of proof is by clear and convincing evidence. Gener
ally, the doctrine is used for a person who was once
competent but no longer is. -Also termed doctrine
ofsubstituted judgment. Cf. SPIRITUAL-TREATMENT
EXEMPTION; medical neglect under NEGLECT. [Cases:
Health <8=>910.]
substitute drawing. See DRAWING.
substituted service. See SERVICE (2).
substitute gift. See GIFT.
substitute information in lieu of indictment. See
INFORMATION. substitution-of-judgment doctrine
substitute obligation. See OBLIGATION.
substitute specification. See SPECIFICATION (3).
substitutio heredis (sdb-std-t[y]oo-shee-oh hd-ree-dis).
[Latin] Roman law. 1. See SUBSTITUTION (3). 2. See SUB
STITUTION (4).
substitution. (14c) 1. A designation ofa person or thing
to take the place of another person or thing. 2. The
process by which one person or thing takes the place
ofanother person or thing. [Cases: Federal Civil Pro
cedure C=>351; Parties (;::.='57.] 3. Parliamentary law.
An amendment by replacing one or more words with
others. See amendment by substituting under AMEND
MENT (3). 4. Roman law. The nomination of a person
to take the place of a previously named heir who has
refused or failed to accept an inheritance. Also
termed common substitution; vulgar substitution. 5.
Roman law. The nomination of a person to take the
place of, or to succeed, a descendant who is under the
age ofpuberty and in the potestas ofthe testator, ifthe
descendant has died before reaching puberty. -This
type ofsubstitution was known as a pupillary substitu
tion. Ifa descendant ofany age failed to take by reason
oflunacy, the substitution was known as an exemplary
substitution or quaSi-pupillary substitution. 6. Roman
law. A testator's deSignation ofa person to whom the
property was to be given by the person named as heir,
or by the heir ofthat person. Also termed fideicom
missary substitution. See FIDEICOMMISSUM. 7. Civil
law. The designation ofa person to succeed another as
beneficiary ofan estate, usu. involVing a fideicommis
sum. Also termed (in senses 6 & 7) fideicommissary
substitution. [Cases: Wills
prohibited substitution. Louisiana law. TIle deSig
nation of a person who is not a trustee to take full
ownership ofproperty and deliver it to another des
ignated person at death. _ The first donee is called the
institute, the second the substitute. See INSTITUTE (5);
S{;BSTITUTE (2). [Cases: Wills C=>553.]
substitutional, adj. (14c) Capable oftaking or supplying
the position ofanother <substitutional executor> <sub
stitutional issue>. -Also termed substitutionary.
substitutional gift. See substitute gift under GIFT.
substitutional legacy. See LEGACY.
substitutional remedy. See REMEDY.
substitutionary. See SUBSTITUTIONAL.
substitutionary evidence. See secondary evidence under
EVIDENCE.
substitutionary remedy. See REMEDY.
substitution-of-judgment doctrine. 1. Administrative
law. The standard for reviewing an agency's decision,
by which a court uses its own independent judgment
in interpreting laws and administrative regulations
rather than deferring to the agency when the
agency's interpretation is not instructive or the regu
lations do not involve matters requiring the agency's
expertise. [Cases: Administrative Law and Procedure
C=>760, 784, 796.]2. Wills & estates. The principle that
1568 substitution of parties
a guardian, conservator, or committee ofan incompe
tent person may make gifts out of that person's estate.
substitution ofparties. The replacement ofone litigant
by another because of the first litigant's death, incom
petency, transfer of interest, or, when the litigant is a
public official, separation from office. [Cases: Federal
Civil Procedure (;:::=>352; Parties
substraction (sab-strak-sh,m), n. (1814) The secret misap
propriation of property, esp. from a decedent's estate.
subsume (sab-s[y]oom), vb. (1825) To judge as a particu
lar instance governed by a general principle; to bring (a
case) under a broad rule. subsumption (sab-s;lmp
shan), n.
sub suo periculo (sab s[y]oo-oh pa-rik-[Y]<l-loh). [Law
Latin] Rist. At his own risk.
subsurety (sab-shuur[-<lJ-tee)_ (1916) A person whose
undertaking is given as additional security, usu. con
ditioned not only on nonperformance by the principal
but also on nonperformance by an earlier promisor as
well; a surety with the lesser liability in a subsuretyship.
[Cases: Principal and Surety (;:::=>191.]
subsuretyship (s<lb-shuur[-al-tee-ship). (1967) The
relation between two (or more) sureties, in which a
principal surety bears the burden ofthe whole perfor
mance that is due from both sureties; a relationship in
which one surety acts as a surety for another. [Cases:
Principal and Surety G,191.]
subsurface interest. 1. A landowner's right to the
minerals and water below the property. [Cases: Mines
and Minerals (;:::=>47; Waters and Water Courses
100, 101.] 2. A similar right held by another through
grant by, or purchase from, a landowner. Cf. SURFACE
INTEREST; MIKERAL INTEREST.
subtenancy. See SUBLEASE.
subtenant. See SUBLESSEE.
subterfuge (s<lb-t<lr-fyooj). (16c) A clever plan or idea
used to escape, avoid, or conceal something <a subter
fuge to avoid liability under a statute>.
subterfuge arrest. See ARREST.
subterranean water. See WATER.
subtraction. 1. The process ofdeducting one number
from another number to determine the difference. 2.
Rist. The act of neglecting a duty or service that one
party owes to another, esp. one that arises out ofland
tenure.
"Subtraction, which is the fifth species of injuries affect
ing a man's real property, happens, when any person who
owes any suit, duty, custom, or service to another, with
draws or neglects to perform it. It differs from a disseiSin,
in that this is committed without any denial of the right,
consisting merely in non-performance; that strikes at the
very title of the party injured, and amounts to an ouster or
actual dispossession. Subtraction however, being clearly an
injury, is remediable by due course of law; but the remedy
differs according to the nature of the services; whether
they be due by virtue of any tenure, or by custom only." 3
William Blackstone, Commentaries on the Laws ofEngland
230 (1768). subtraction ofconjugal rights. Rist. The act of a husband
and wife unlawfully living apart.
subtrahend (sab-tra-hend). In a mathematical equation,
the amount subtracted from another number (the
minuend) to arrive at a remainder or balance. The
term is used in law in a variety ofaccounting contexts.
Cf. MINUEND.
suburbani (s<lb-ar-bay-m), n. [Latin] Roman law. 1. Hus
bandmen. 2. Large country estates just outside Rome,
subvention (sab-ven-shan). A grant of financial aid or
assistance; a subsidy. [Cases: United States
subversion. (14c) The process ofoverthrowing, destroy
ing, or corrupting <subversion of legal principles>
<subversion of the government>.
'Subversion can succeed where diplomacy has failed. Sub
version exceeds the bounds of diplomacy in that it employs
methods which diplomacy abhors; it does not wince at
assassination, riot, pillage, and arson, if it believes these to
be useful in the attainment of its ends. SubverSion is a form
of war. It may include the use of propaganda ... to sway the
th |
of its ends. SubverSion is a form
of war. It may include the use of propaganda ... to sway the
thinking and action of influential SOCial groups, especially
attempting to discredit the leadership of the target area,
labeling it as the 'tool' of ... any convenient target for
emotional hatred. By inflaming passion, the purveyors of
violent propaganda can stir up peaceful citizens so that
in minutes they are transformed into a terrifying mob.
The art of subversion has developed the technique of the
manipulation of mobs to a high degree." T. Wyckoff, War
by Subversion, 59 South Atlantic Q. 36 (1960).
'Prior to World War II, subversive activities were thought
to cover cases where states attempted to achieve certain
political ends of fomenting civil strife in another state or by
supporting rebellion against the legally established govern
ment of another state by giving to the rebels supplies of
personnel, training facilities, war materials, or munitions
and by engaging in hostile propaganda against the victim
state and its government .... By the beginning of World
War II, the concept of subversion had been expanded to
include the attempt of one state to weaken or overthrow
the government of another by means of infiltration of its
governmental apparatus with conspirators who strongly
opposed the domestic policy of their own government and
willingly served as clandestine instruments in the conduct
of an alien state's foreign policy. But with increased mili
tancy of modern ideologies, ... subversive activities are
no longer seen in many quarters as advancing the foreign
policy of a nation or nations, but rather are thought to
advance universal human values, i.e., the specific ideo
logical theory adhered to." Ann Van Wynen Thomas &A.j.
ThomasJr., The Concept ofAggression in International Law
72-73 (1972).
"Today, the term subversion designates all illegal activi
ties, whether direct or indirect, overt or covert, conducted
under the auspices of a state and designed to overthrow the
established government or vitally disrupt the public order
of another state. Subversion combines psychological, polit
ical, social, and economic actions, as well as active military
or paramilitary operations, and it is generally a sustained,
long,run, intermeshed, and coordinated process. Conse
quently. it is usually impossible to place acts of subversion
into neat little categorical definitions. Subversion, being
a technique of opportunity, is successful mainly in areas
where social and political revolution is at least incipient."
Ann Van Wynen Thomas & A.J. Thomas Jr., The Concept of
Aggression in International Law 80-81 (1972).
Subversive Activities Control Act of 1950. See
MCCARRAN ACT.
1569 successor
subversive activity. (1939) A pattern of acts designed
to overthrow a government by force or other illegal
means.
subversive propaganda. See PROPAGANDA.
success fee. See FEE (1).
successful party. See prevailing party under PARTY (2).
successio (sak-sesh-ee-oh), n. [Latin] Roman law. A suc
cession to something, as to an estate by will or by the
laws of intestacy.
successio in universum jus (sak-ses[hJ-ee-oh in yoo-ni
v;}r-sam jas). [Latin "succession to universal right"]
Roman law. 1he succession on death to the entirety of
a deceased person's assets and liabilities. See hereditas
jacens under HEREDITAS.
succession, n. (14c) 1. The act or right oflegally or offi
cially taking over a predecessor's office, rank, or duties.
2. The acquisition of rights or property by inheritance
under the laws of descent and distribution; DESCENT
(1). [Cases: Descent and Distribution ~1-43.} -
succeed, vb.
hereditary succession. See intestate succession.
intestate succession. (18c) 1. 'The method used to dis
tribute property owned by a person who dies without
a valid will. 2. Succession by the common law of
descent. Also termed hereditary succession; descent
and distribution. See DESCENT (1). Cf. testate succes
sion. [Cases: Descent and Distribution C-::>20-43.]
irregular succession. (17c) Succession by special laws
favoring certain persons or the state, rather than heirs
(such as testamentary heirs) under the ordinary laws
of descent. [Cases: Descent and Distribution ~~,1.)
legal succession. (18c) The succession established by
law, usu. in favor ofthe nearest relation ofa deceased
person.
lucrative succession. Scots law. See PRAECEPTlO HAER
EDITATIS.
natural succession. (l8c) Succession between natural
persons, as in descent on the death of an ancestor.
[Cases: Descent and Distribution C:=>20-43.]
testamentary succession. Civil law. Succession result
ing from the designation of an heir in a testament
executed in the legally required form. [Cases: Descent
and Distribution C:>44.)
testate succession. (I8c) The passing of rights or
property by will. Cf. intestate succession. [Cases: Wills
(::::> L]
universal succession. Succession to an entire estate of
another at death . This type of succession carries
with it the predecessor's liabilities as well as assets.
Originally developed by Roman law and later con
tinued by civil law, this concept has now been widely
adopted as an option endorsed and authorized by the
Uniform Probate Code. La. Civ. Code art. 3506(28).
vacant succession. Civil law. 1. A succession that fails
either because there are no known heirs or because the heirs have renounced the estate. 2. An estate that
has suffered such a failure. See ESCHEAT.
3. ]he right by which one group, in replacing another
group, acquires all the goods, movables, and other
chattels of a corporation. [Cases: Corporations
445.1.) 4. The continuation of a corporation's legal
status despite changes in ownership or management.
Also termed artificial succession. [Cases: Corporations
~l.l.]
perpetual succession. The continuous succession of a
corporation despite changes in shareholders and
officers for as long as the corporation legally exists.
[Cases: Corporations ~36.}
"As a general rule, the words 'perpetual succession,' as
used in charters, often in connection with a further provi
sion limiting the period of corporate existence to a certain
number of years, mean nothing more than that the corpo
ration shall have continuous and uninterrupted succession
so long as it shall continue to exist as a corporation, and
are not intended to define its duration." 18 Am. Jur. 2d
Corporations 69, at 883 (]985).
successional, adj. (14c) Ofor relating to acquiring rights
or property by inheritance under the laws of descent
and distribution.
succession duty. See DUTY (4).
succession tax. See inheritance tax (1) under TAX.
successio praedilecta (sdk-ses[h]-ee-oh pree-di-lek-td).
[Law Latin] Hist. A preferred succession; a succession
that the testator prefers.
successive, adj. 1. Archaic. (Of an estate) hereditary. 2.
(Of persons, things, appointments, etc.) following in
order; consecutive.
successive polygamy. See POLYGAMY (2).
successive tortfeasors. See TORTFEASOR.
successive-writ doctrine. (1987) Criminal procedure.
The principle that a second or supplemental petition
for a writ of habeas corpus may not raise claims that
were heard and decided on the merits in a previous
petition. Cf. ABUSE-OF-THE-WRIT DOCTRINE. [Cases:
Habeas Corpus~894.J
successor. (14c) 1. A person who succeeds to the office,
rights, responsibilities, or place of another; one who
replaces or follows a predecessor. 2. A corporation
that, through amalgamation, consolidation, or other
assumption of interests, is vested with the rights and
duties of an earlier corporation. [Cases: Corporations
~445.l, 589, 590.]
particular successor. Civil law. One who succeeds
to rights and obligations that pertain only to the
property conveyed.
singular successor. One who succeeds to a former
owner's rights in a single piece ofproperty.
statutory successor. One who succeeds to the assets
of a corporation upon its dissolution; sped., the
person to whom all corporate assets pass upon a cor
poration's dissolution according to the statute ofthe
state of incorporation applicable at the time of the
1570 successor agent
dissolution. See Restatement (Second) ofConflict of
Laws 388 cmt. a (1971). [Cases: Corporations ~
619.]
universal successor. 1. One who succeeds to all the
rights and powers of a former owner, as with an
intestate estate or an estate in bankruptcy. 2. Lou
isiana law. An heir or legatee who succeeds in the
entire estate ofthe deceased or a specified portion of
it, rather than by particular title as legatee ofa specific
thing. A universal successor succeeds in all of the
decedent's rights and charges, whereas the particular
legatee succeeds only to the rights and charges per
taining to the bequeathed thing. La. Civ. Code art.
3506(28).
successor agent. See AGENT (2).
successor fiduciary. See FIDUCIARY.
successor guardian. See GUARDIAN.
successor in interest. (1832) One who follows another
in ownership or control ofproperty. A successor in
interest retains the same rights as the original owner,
with no change in substance.
successor titulo lucrativo post contractum debitum (s<:lk
ses-or [or -<:lr] tich-<:l-loh 100-kr<:l-tI-voh pohst k<:ln-trak
t<:lm deb-i-t<:lm). [Law Latin] Hist. A successor under a
lucrative title after debt has been contracted. Such
a successor is liable to pay all debts contracted by the
grantor.
successor trustee. See TRUSTEE (1).
sucesi6n legitima (soo-se-syon lay-hee-tee-mah).
Spanish law. The process ofregular inheritance, the
rules ofwhich may not be altered by will. See Ortiz De
Rodriguez v. Vivoni, 201 U.S. 371, 376-77,26 S.Ct. 475,
476 (i906).
such, adj. (bef. 12c) 1. Ofthis or that kind <she collects
a variety ofsuch things>. 2. That or those; having just
been mentioned <a newly discovered Faberge egg will
be on auction next week; such egg is expected to sell for
more than $500,000>.
sudden-and-accidental pollution exclusion. See pollu
tion exclusion under EXCLUSION (3).
sudden-death jurisdiction. Wills & estates. A jurisdic
tion in which a will once revoked cannot be revived,
and instead must be reexecuted. See REVIVAL (2).
sudden-emergency doctrine. See EMERGENCY DOCTRINE
(1).
sudden heat. See HEAT OF PASSION.
sudden heat and passion. See HEAT OF PASSION.
sudden heat ofpassion. See HEAT OF PASSION.
sudden-onset rule. (1981) The principle that medical
testimony is unnecessary to prove causation of the
obvious symptoms of an injury that immediately
follows a known traumatic incident. [Cases; Damages
~185(l).]
sudden passion. See HEAT OF PASSION.
sudden-peril doctrine. See EMERGENCY DOCTRINE (1). sudden-peril rule. See EMERGENCY DOCTRINE (1).
sue, vb. To institute a lawsuit against (another party).
sue-and-Iabor clause. Marine insurance. A provision in
property- and marine-insurance policies requiring the
insured to protect damaged property against further
loss. The clause generally requires the insured to "sue
and labor" to protect the insured party's interests.
Also termed rescue clause. [Cases; Insurance
2245(2).]
"Some insurance today is written against 'all risks' ....
Besides the perils clause ... recovery under the policy can
be had on the entirely separate 'sue and labor' clause. " ..
Under this clause, the underwriter may become liable for
certain charges incurred by the assured in caring for the
insured property, whether or not there is any actual loss
or damage. Where sueand-Iabor charges are incurred and
105s also occurs, the underwriter may become liable for
more than the policy amount, which limits only a claim for
loss of or damage to the goods or vessel." Grant Gilmore
& Charles L. BlackJr. The Law ofAdmiralty 2-10, at 75
(2d ed. 1975).
sue facts. (1980) Facts that determine whether a party
should bring a lawsuit; esp., facts determining whether
a shareholder-derivative action should be instituted
under state law.
sue out, vb. (15c) 1. To apply to a court for the issuance
of (a court order or writ). 2. To serve (a complaint) on
a defendant.
suerte (swer-t.:. Spanish law. 1. Chance; destiny; fate.
2. A small plot ofland. 3. Land within a municipal
ity's boundaries, reserved for cultivating or planting
because of its proximity to water. This term appears
in the caselaw ofstates that were formerly Spanish or
Mexican possessions.
suffer, vb. (I4c) 1. To experience or sustain physical
or emotional pain, distress, or injury <suffer
grievously><suffer damages>. [Cases: Damages
31, 57.1.J 2. To allow or permit (an act, etc.) <to suffer
a default>.
sufferance (s<:lf-<:lr-.: |
permit (an act, etc.) <to suffer
a default>.
sufferance (s<:lf-<:lr-.:>nts or saf-r<:lnts). (l4c) 1. Toleration;
passive consent. 2. The state of one who holds land
without the owner's permission. See tenancy at suf
ferance under TENANCY. 3. A license implied from the
omission to enforce a right.
sufferance wharves. Hist. English law. Wharves deSig
nated by the Commissioner of the Customs to receive
goods before any duties must be paid.
sufferentia pads (s<:lf-<:l-ren-shee-;l pay-sis), n. [Latin] A
grant ofpeace; a truce; an armistice.
suffering a recovery. Hist. A conveyor's act ofallowing,
for the purposes of a conveyance, a fictitious action
to be brought by the conveyee and a judgment to be
recovered for the land in question.
sufficiency of disclosure. See ADEQUACY OF DISCLO
SURE.
sufficiency-of-evidence test. (1972) Criminal procedure.
1. The guideline for a grand jury considering whether
to indict a suspect: if all the evidence presented were
uncontradicted and unexplained, it would warrant a
1571
conviction the fact-trier. [Cases: Indictment and
Information 10.2.] 2. A standard for reviewing
a criminal conviction on appeal, based on whether
enough evidence exists to justify the fact-trier's finding
ofguilt beyond a reasonable doubt. -Also termed suf
ficiency-of-the-evidence test. [Cases: Criminal LawC=
1159.2(7).]
sufficient, adj. Adequate; ofsuch quality, number, force,
or value as is necessary for a given purpose <sufficient
consideration> <sufficient evidence>.
sufficient cause. 1. See good cause under CAUSE (2). 2.
PROBABLE CAUSE.
sufficient consideration. See CONSIDERATION (1).
sufficient evidence. See satisfactory evidence under
EVIDENCE.
suffragan (saf-ra-gdn or -jan). A titular bishop ordained
to assist a bishop ofthe diocese in the church business;
a deputy or assistant bishop . Suffragans were origi
nally appointed only to replace absent bishops and were
called chorepiscopi ("bishops ofthe county"), as distin
guished from the regular bishops of the city or see.
suffrage (saf-rij). (14c) 1. The right or privilege ofcasting
a vote at a public election. -Also termed right to vote.
[Cases: Elections (;::=> L]
"In the United States suffrage is a privilege, franchise or
trust conferred by the people upon such persons as it
deems fittest to represent it in the choice of magistrates
or in the performance of political duties which it would
be inexpedient or inconvenient for the people to perform
in a body. The person upon whom the franchise is con
ferred is called an elector or voter. No community extends
suffrage to all persons, but places such restrictions upon it
as may best subserve the ends of government." George W.
McCrary, A Treatise on the American Law of Elections 1,
at 2 (Henry L McCune ed., 4th ed. 1897).
2. A vote; the act ofvoting.
suffragium (sa-fray-jee-am), n. [Latin "voting tablet"]
Roman law. 1. A vote; the right to vote. 2. A recommen
dation of someone for a special privilege or office.
suggested retail price. See PRICE.
suggestibility, n. The readiness with which a person
accepts another's suggestion. -suggestible, adj.
suggestio falsi (sag-jes-tee-oh faI-51 or fawl-sI). [Latin]
A false representation or misleading suggestion. Cf.
SUPPRESSIO VERI.
suggestion, n. (l4c) L An indirect presentation ofan idea
<the client agreed with counsel's suggestion to reword
the warranty>. 2. Procedure. A statement of some fact
or circumstance that will materially affect the further
proceedings in the case <suggestion for rehearing
en banc>. 3. Archaic. Wills & estates. UNDUE INFLU
ENCE. -suggest (for senses 1 & 2), vb.
suggestion ofbankruptcy. (1869) A pleading by which a
party notifies the court that the party has filed for bank
ruptcy and that, because ofthe automatic stay provided
by the bankruptcy laws, the court cannot take further
action in the case. [Cases: BankruptcyC=3418.] suicide clause
I suggestion of death. (I8c) A pleading filed by a party,
. or the party's representatives, by which the court is
notified that a party to a suit has died. [Cases: Federal
Civil Procedure (;::::353-357,361; Parties (;::c61.]
suggestion oferror. (1811) An objection made by a party
to a suit, indicating that the court has committed an
error or that the party wants a rehearing ofa particular
i issue. [Cases: Appeal and Error C=758, 829; Criminal
Law C=:> 1133.]
suggestion on the record. A formal written or oral state
ment informing the court of an important fact that
may require a stay of proceedings or affect the court's
decision. Suggestions on the record include sugges
tion of bankruptcy, suggestion of death, and sugges
tion oferror.
suggestive interrogation. See LEADI~G QUESTION.
suggestive mark. See suggestive trademark under TRADE
MARK.
suggestive name. See suggestive trademark under
TRADEMARK.
suggestive question. See LEADING QUESTION.
suggestive trademark. See TRADEMARK.
sui. See SUI HEREDES.
suicide, n. (l7c) 1. The act of taking one's own life.
Also termed self-killing; self-destruction; self-slaugh
ter; self-murder;felony-de-se; death by one's own hand.
[Cases: SuicideC=1.]
assisted suicide. (1976) The intentional act of provid
ing a person with the medical means or the medical
knowledge to commit suicide. Also termed assisted
self-determination; (when a doctor provides the
means) physician-assisted suicide. Cf. EUTHANASIA.
[Cases: Suicide
attempted suicide. (1880) An unsuccessful suicidal act.
[Cases: Suicide (;::::>2.]
physician-assisted suicide. See assisted suicide.
police-assisted suicide. See suicide-by-cop.
sUicide-by-cop. Slang. A form ofsuicide in which the
suicidal person intentionally engages in life-threat
ening behavior to induce a police officer to shoot the
person. Frequently, the decedent attacks the officer
or otherwise threatens the officer's life, but occasion
ally a third person's life is at risk. A suicide-by-cop is
distinguished from other police shootings by three
elements. The person must: (1) evince an intent to die;
(2) consciously understand the finality ofthe act; and
(3) confront a law enforcement official with behavior
so extreme that it compels that officer to act with
deadly force. -Also termed police-assisted suicide;
victim-precipitated homicide.
2. A person who has taken his or her own life.
Also termed felo-de-se;felon-de-se;felon ofoneself.
suicidal, adj.
suicide clause. Insurance. A life-insurance-policy pro
vision either excluding suicide as a covered risk or
1572 suicide letter of credit
limiting the insurer's liability in the event of a suicide to
the total premiums paid. [Cases: Insurance C='2434.]
suicide letter of credit. See clean letter ofcredit under
LETTER OF CREDIT.
sui geneds (s[Y]OO-I or soo-ee jen-d-ris). [Latin "of its
own kind"] (18c) Of its own kind or class; unique or
peculiar . The term is used in intellectual-property law
to describe a regime designed to protect rights that fall
outside the traditional patent, trademark, copyright,
and trade-secret doctrines. For example, a database
may not be protected by copyright law if its content is
not original, but it could be protected by a sui generis
statute designed for that purpose.
sui heredes (s[Y)OO-I hd-ree-deez). [Latin "one's own
heirs"] Roman law. A person's direct descendants who
were unemancipated, and who would be heirs on intes
tacy Also spelled sui haeredes. -Often shortened
to sui. See suus HERES.
"If a man died without a will. his property went to his sui
heredes (own heirs, direct heirs), that is, to the persons
who were previously under his potestas, but were released
from it by his death. If he had adopted as son a person not
connected with him by birth, that person was included
among the sui heredes; on the other hand. a son by birth
whom he had emancipated was.. excluded from the sui
heredes . ..."James Hadley, Introduction to Roman Law
134 (1881).
sui juris (s[Y)OO-1 or soo-ee joor-is). [Latin "of one's own
right; independent" J (l7c) 1. Of full age and capacity.
2. Possessing full social and civil rights. 3. Roman law.
Of or relating to anyone of any age, male or female,
not in the postestas of another, and therefore capable
of owning property and enjoying private law rights .
As a status, it was not relevant to public law.
sui potens (s[Y]OO-I poh-tenz). [Latin) Hist. Able to do
something, as in to enter a contract.
suit. (14c) Any proceeding by a party or parties against
another in a court oflaw; CASE (1). -Also termed
lawsuit; suit at law. See ACTION (4).
ancillary suit (an-sd-Ier-ee). (1845) An action, either
at law or in equity, that grows out ofand is auxiliary
to another suit and is filed to aid the primary suit,
to enforce a prior judgment, or to impeach a prior
decree. Also termed ancillary bill; ancillary pro
ceeding; ancillary process. [Cases: Federal Courts C~\
20.1.]
blackmail suit. (1892) A suit filed by a party having no
genuine claim but hoping to extract a favorable settle
ment from a defendant who would rather avoid the
expense and inconvenience oflitigation.
class suit. See CLASS ACTION.
derivative suit. See DERIVATIVE ACTION (1).
frivolous suit. (1837) A lawsuit having no legal basis,
often filed to harass or extort money from the defen
dant. [Cases: Action (~8; Costs C=>2; Federal Civil
Procedure <8::::;2767.]
official-capacity suit. A lawsuit that is nominally
against one or more individual state employees but that has as the real party in interest the state or a
local government. Cf. personal-capacity suit. [Cases:
Officers and Public Employees C=>119.)
personal-capacity suit. An action to impose personal,
individual liability on a government officer. Cf. offi
cial-capacity suit.
petitory suit. See petitory action under ACTION (4).
plenary suit (plee-nd-ree or plen-d-ree). (1817) An
action that proceeds on formal pleadings under
rules of procedure. Cf. summary proceeding under
PROCEEDING.
sham suit. See sham action under ACTION (4).
strike suit. (1902) A suit (esp. a derivative action), often
based on no valid claim, brought either for nuisance
value or as leverage to obtain a favorable or inflated
settlement. [Cases: Corporations C=>214.)
suit at law. A suit conducted according to the common
law or equity, as distingUished from statutory provi
sions. Under the current rules ofpractice in federal
and most state courts, the term civil action embraces
an action both at law and in equity. Fed. R. Civ. P. 2.
See action at law under ACTION (4).
suit in equity. A civil suit stating an equitable claim and
asking for an exclusively equitable remedy. Also
termed action in equity. lCases: Action C=>21.]
suit ofa civil nature. A civil action. See civil action
under ACTION (4).
suitable, adj. (Of goods, etc.) fit and appropriate for their
intended purpose.
suitas (s[y)oo-d-tas), n. [Law Latin]1he status ofa proper
heir.
suit for exoneration. (1928) A suit in equity brought by
a surety to compel the debtor to pay the creditor . If
the debtor has acted fraudulently and is insolvent, a
suit for exoneration may include further remedies to
ensure that the debtor's assets are applied equitably to
the debtor's outstanding obligations. -Also termed
suit to compel payment. [Cases: Principal and Surety
179.)
suit money. (1846) Attorney's fees and court costs
allowed or awarded by a court; esp., in some jurisdic
tions, a husband's payment to his wife to cover her
reasonable attorney's fees in a divorce action. [Cases:
Divorce
suitor. (16c) 1. A party that brings a lawsuit; a plaintiff
or petitioner. 2. An individual or company that seeks
to take over another company.
Suitors' Deposit Account. English law. An account con
sisting of suitors' fees paid in the Court ofChancery
that, by the Chancery Act of 1872, were to be invested
in government se |
Court ofChancery
that, by the Chancery Act of 1872, were to be invested
in government securities bearing interest at 2% per
annum on behalf of the investing suitor, unless the
suitor directed otherwise.
Suitors' Fee Fund. Hist. A fund consisting largely offees
generated by the Court of Chancery out of which the
court officers' salaries and expenses were paid . In
1573
1869 the fund was transferred to the Commissioners
for the Reduction of the National Debt.
suit papers. See COURT PAPERS.
suitpro laesione fidei (proh lee-zhee-oh -nee fI-dee-I), n.
[Latin "for injury to faith"] Hist. Eccles. law. A suit in
ecclesiastical court for spiritual offenses against con
science, nonpayment ofdebts, or a breach ofcontract,
esp. an oral contract made by oath.
Suits in Admiralty Act. A 1920 federal law giving injured
parties the right to sue the government in admiralty.
46 USCA app. 741-52. [Cases: United States ~
78(7).J
suit to compel payment. See SUIT FOR EXONERATION.
sum. 1. A quantity of money. 2. English law. A legal
summary or abstract; a compendium; a collection .
Several treatises are called sums.
sum certain. (16c) 1. Any amount that is fixed, settled, or
exact. 2. Commercial law. In a negotiable instrument, a
sum that is agreed on in the instrument or a sum that
can be ascertained from the document. [Cases: Bills
and Notes G=' 157.]
summa injuria (s3m-~ in-joor-ee-~). [Latin] The greatest
injury or injustice.
summa necessitate (s3m-~ ni-ses-~-tay-tee). [Latin] Hist.
In extreme necessity. See NECESSITY.
summa potestas (s~m-3 p~-tes-tds), n. [Latin "sum or
totality ofpower"] The final authority or power in gov
ernment.
summary, adj.(l5c) 1. Short; concise <a summary
account ofthe events on March 6>. 2. Without the usual
formalities; esp., without a jury <a summary trial>. 3.
Immediate; done without delay <the new weapon was
put to summary use by the military>. -summarily
(silm-ilr-;:J-lee or sd-mair-d-lee), adv.
summary, n. (16c) 1. An abridgment or brief. 2. A short
application to a court without the formality of a full
proceeding.
summary adjudication. See partial summary judgment
under SUMMARY JUDGMENT.
summary conviction. See CONVICTION.
summary court-martial. See COURT-MARTIAL.
summary disposition. See SUMMARY JUDGMENT.
summary eviction. See EVICTION.
summary judgment. (18c) A judgment granted on a
claim or defense about which there is no genuine issue
ofmaterial fact and upon which the movant is entitled
to prevail as a matter oflaw . The court considers the
contents of the pleadings, the motions, and additional
evidence adduced by the parties to determine whether
there is a genuine issue of material fact rather than
one of law. This procedural device allows the speedy
disposition ofa controversy without the need for trial.
Fed. R. Civ. P. 56. Also termed summary disposi
tion;judgment on the pleadings. See JUDGMENT. [Cases: summer clerk
Federal Civil Procedure ~2461-2559; Judgment
178-190.]
partial summary judgment. (1924) A summary
judgment that is limited to certain issues in a case and
that disposes of only a portion of the whole case.
Also termed summary adjudication. [Cases: Federal
Civil Procedure G='2557; Judgment ~181(14).]
summary-judgment motion. See MOTION FOR SUMMARY
JUDGMENT.
summary jurisdiction. See JURISDICTION.
summary jury trial. See TRIAt.
summary of argument. See SUMMARY OF THE
ARGUMENT.
Summary ofCommentary on Current Economic Con
ditions by Federal Reserve District. See BEIGE BOOK.
summary offense. 1. See OFFENSE (1). 2. See MISDE
MEANOR (1).
summary of the argument. The part of a brief, esp. an
appellate brief, in which the advocate condenses the
argument to a precis or synopsis, directing the court to
the heart ofthe argument on each point. A summary
typically runs from one to four pages. Also termed
summary ofargument. [Cases: Appeal and Error
761; Criminal Law 1130(3); Federal Courts (;:::::>
714.]
"A summary of the argument. suitably paragraphed. The
summary should be a clear and concise condensation of
the argument made in the body of the brief; mere repeti
tion ofthe headings under which the argument is arranged
is not sufficient." Sup. Ct. R. 24.1(h).
summary of the invention. Patents. In a U.S. patent
application, the section that describes the nature, oper
ation, and purpose of the invention in enough detail
that the examiner and anyone searching the patent lit
erature for prior art can understand the unique char
acter of the invention. [Cases: Patents ~99.]
summary plan description. Under the Employee Retire
ment Security Act (ERISA), an outline ofan employee
benefit plan, containing such information as the
identity of the plan administrator, the requirements
for eligibility and participation in the plan, circum
stances that may result in disqualification or denial of
benefits, and the identity of any insurers responsible
for financing or administering the plan . A summary
plan description must generally be furnished to all
employee-benefIt-plan participants and beneficiaries.
29 USCA 1022. [Cases: Labor and Employment
483]-Abbr. SPD.
summary procedure. See SHOW-CAUSE PROCEEDING.
summary proceeding. See PROCEEDING.
summary process. See PROCESS.
summary trial. See summary proceeding under PRO
CEEDING.
summation. See CLOSING ARGUMENT.
summer associate. See CLERK (4).
summer clerk. See CtERK (4).
summing up 1574
summing up. 1. CLOSING ARGUMENT. 2. English law. A
judge's review of the key points of evidence presented
in a case and instructions to the jury on the law it is to
apply to the evidence . 'Ihe judge's summing up follows
the advocates' dosing speeches. sum up, vb.
summojure (s;lm-oh ;oor-ee). [Latin] Hist. In the highest
right.
summon, vb. (Bc) To command (a person) by service ofa
summons to appear in court. Also termed summons.
[Cases: Witnesses (~7.1
summoneas (s<I-moh-nee-;3s), n. [Law Latin "you are to
summon"] Hist. A writ ordering a party to appear in
court.
summoner. Hist. A petty officer charged with summon
ing parties to appear in court. See NUNTlUS.
"But process, as we are now to consider it, is the method
taken by the law to compel a compliance with the original
writ, of which the primary step is by giving the party notice
to obey it. This notice is given ... by summons: which is a
warning to appear in court ... given to the defendant by
two of the sheriff's messengers called summoners, either
in person or left at his house or land." 3 William Blackstone,
Commentaries on the Laws of England 279 (1768).
summonitio (s<lm-;>-nish-ee-oh), n. [Law Latin fr. Latin
summonere "to summon"] Hist. A summons.
summonitores scaccarii (s;)m-;)n-;>-tor-eez sk;)-kair
ee-I). [Law Latin] Hist. Exchequer officers who assisted
in revenue collections by summoning defaulters to
court.
summons, n. (Bc) 1. A writ or process commencing the
plaintiffs action and requiring the defendant to appear
and answer. [Cases: Federal Civil Procedure C=>401;
Process <>=>7.J 2. A notice requiring a person to appear
in court as a juror or witness. [Cases: Jury (;:::~670);
Witnesses C---=> 7.J 3. Hist. A writ directing a sheriff to
summon a defendant to appear in court. 4. English law.
The application to a common-law judge upon which an
order is made. PI. summonses.
alias summons. A second summons issued after the
original summons has failed for some reason. [Cases:
Process C=>45.]
John Doe summons. 1. A summons to a person whose
name is unknown at the time of service. [Cases:
Federal Civil Procedure (;:::401; Process C=>28.] 2.
Tax. A summons from the Internal Revenue Service to
a third party to provide information on an unnamed,
unknown taxpayer with potential tax liability. Also
termed third-party record-custodian summons. [Cases:
Internal Revenue C=>4493-4517.]
judgment summons. A process used by a judgment
creditor to start an action against a judgment debtor
to enforce the judgment. [Cases: Judgment C=>854.]
short summons. A summons haVing a response time
less than that of an ordinary summons, usu. served
on a fraudulent or nonresident debtor. [Cases: Process
C:-:>33.]
third-party record-custodian summons. See John Doe
summons. summons, vb. (17c) 1. SIlMMON. 2. To request (informa
tion) by summons.
''The horrible expression 'summonsed for an offence'
(turning the noun 'summons' into a verb) has now become
accepted usage, but 'summoned' remains not only allow
able but preferable." Glanville Williams, Learning the Law
15 n.28 (11th ed. 1982).
summum bonum (sam-;)m boh-n<lm also suum-uum
baw-nuum). [Latin] The greatest good.
summum jus (sam-dm ;<'Is). [Latin] The highest law.
sumner (s<'lm-n<lr), n. Hist. A summoning officer, esp. in
an ecclesiastical court. See SUMMONER.
sum-of-the-years' -digits depredation method. See
DEPRECIATION METHOD.
sum payable. 07c) An amount due; esp., the amount for
which the maker of a negotiable instrument becomes
liable and must tender in full satisfaction ofthe debt.
sumptuary law (samp-choo-er-ee). 1. A statute, ordi
nance, or regulation that limits the expenditures that
people can make for personal gratification or ostenta
tious display. 2. More broadly, any law whose purpose
is to regulate conduct thought to be immoral, such as
prostitution, gambling, or drug abuse.
Sunday-dosing law. See BLUE LAW.
Sunday law. See BLUE LAW.
sundries (san-dreez). Miscellaneous items that may be
considered together, without being separately specified
or identified.
sundry (s;ln-dree), adj. Separate; diverse; various.
snnk cost. See COST (1).
sunna. See FEMALE GENITAL MUTILATION.
sunset law. (1976) A statute under which a governmental
agency or program automatically terminates at the end
ofa fixed period unless it is formally renewed. [Cases:
Administrative Law and Procedure G---=> 128.J
sunset legislation. See SUNSET LAW.
sunshine committee. (2000) An official or quasi-official
committee whose proceedings and work are open to
public access. [Cases: Administrative Law and Proce
dure 124.]
sunshine law. (1972) A statute requiring a governmental
department or agency to open its meetings or its records
to public access. -Also termed open-meeting law; pub
lic-meeting law; open-door law. [Cases: Administrative
Law and Procedure 124; Records C-:J50-68.]
suo nomine (s[y]oo-oh nom-<l-nee). [Latin] In one's own
name.
suo periculo. See SUB SUO PERICULO.
SUP. abbr. SPECIAL-USE PERMIT.
sup. ct. abbr. SUPREME COURT.
super (s[y]oo-p;>r). [Latin] Above; over; higher.
super aliquam partemfundi (s[y]oo-p;)r al-j-kwam
pahr-tem fan-dI). [Law Latin] Hist. Upon any part of
the land.
super altum mare (s[y]oo-par ai-tam mair-ee or mahr
ee). [Latin] On the high sea.
super attentatis aut innovatis lite dependente (s[y]
oo-par a-ten-tay-tis awt in-a-vay-tis II-tee dee-pen
den-tee). [Law Latinl Hist. Concerning those things
allegedly due during the pendency of the case.
supercargo. Maritime law. A person specially employed
and authorized by a cargo owner to sell cargo that has
been shipped and to purchase returning cargo, at the
best possible prices; the commercial or foreign agent
ofa merchant.
"Supercargoes are persons employed by commercial
companies or by private merchants to take charge of the
cargoes they export to foreign countries, to sell them there
to the best advantage, and to purchase proper commodi
ties to relade the ships on their return home. They usually
go out with the ships on board of which the goods are
embarked, and return home with them, and in this they
differ from factors who live abroad .... The supercargo
is the agent of the owners, and disposes of the cargo and
makes purchases under |
who live abroad .... The supercargo
is the agent of the owners, and disposes of the cargo and
makes purchases under their general instructions on his
own responsibility." 70 Am.Jut. 2d Shipping 886, at 1025
(1987).
superductio (s[yloo-par-d~k-shee-oh), n. [Latin] Roman
law. The obliteration ofpart ofa will or other document
by writing over something erased within it. PI. super
ductiones (s[y]oo-p;}r-ddk-shee-oh-neez).
super eisdem deductis (s[y]oo-pdr ee-is-ddm di-dak-tis).
[Law Latin] Hist. Upon the same grounds.
superfeudation. See SUPERINFEUDATION.
superficiarius (s[y]oo-par-fish-ee-air-ee-<ls), n. [Latin]
Roman law. A person who had a hereditary and alien
able right to a bUilding on municipal or other public
land, subject to the payment of an annual rent. _ In
classical law this right was extended to private land.
Cf. EMPHYTEUSIS.
superficies (s[y]oo-par-fish-ee-eez or -fish-eez), n. [Latin
"surface"] Roman &-civil law. 1. The surface of the
ground. 2. An improvement that stands on the surface
ofthe ground, such as a building, other construction,
trees, plants, or crops. 3. The right ofa superficiarius.
See SUPERFICIARIUS.
Superfund. (1977) 1. The program that funds and
administers the cleanup of hazardous-waste sites
through a trust fund (financed by taxes on petroleum
and chemicals and a tax on certain corporations)
created to pay for cleanup pending reimbursement
from the liable parties. [Cases: Environmental Law
437.] 2. The popular name for the act that established
this program -the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980
(CERCLA). See CERCLA.
superinfeudation. Hist. The granting of one or more
feuds out of a feudal estate. -Also termed superfeu
dation. Cf. SUBrNFEUDATION.
"Whatever may be the proper view of its origin and legal
nature, the best mode of vividly picturing to ourselves the
feudal organisation is to begin with the baSiS, to consider
the relation of the tenant to the patch of soil which created
and limited his services -~ and then to mount up, through
narrowing circles of super-feudation, till we approximate ! to the apex of the system." Henry S. Maine, Ancient Law
88 (17th ed. 1901).
superinstitution. Eccles. law. The investiture of one
person in an office that already has an incumbent,
as when two individuals claim a benefice by adverse
titles.
superintendent. A person with the power to direct activ
ities; a manager.
superintending control. See CONTROL.
superior, adj. (14c) (Of a rank, office, power, etc.) higher;
elevated: possessing greater power or authority; entitled
to exert authority or command over another <superior i
' estate> <superior force> <superior agent>. -superior,
n.
superior agent. See high-managerial agent under AGENT
(2).
superior commissioned officer. See OFFICER (2).
superior court. See COURT.
superior fellow servant. See FELLOW SERVANT.
superior force. 1. See FORCE MAJEURE. 2. See ACT OF GOD.
3. See VIS MAJOR.
superior knowledge. See KNOWLEDGE.
superior-knowledge rule. The doctrine that when a
property owner knows or should know that a hazard
ous condition exists on the property, and the condi
tion is not obvious to a person exercising reasonable
care, the owner must make the premises reasonably
safe or else warn others of the hazardous condition.
-An exception to the rule is sometimes allowed for
obvious dangers or dangers of which the invitee is
aware. Restatement (Second) of Torts 343A. But the
exception is neither automatic nor absolute. See id.
343A(1) & cmt. f. Also termed equal-or-superior
knowledge rule. Cf. EQUAL-KNOWLEDGE RULE. [Cases:
Negligence C=> 1088.]
superior servant. See superior fellow servant under
FELLOW SERVANT.
superior-servant doctrine. See FELLOW-SERVANT
RULE.
superjurare (s[y]oo-p~r-juu-rair-ee). [Latin "to over
swear"] Hist. To swear too strenuously . This describes
the situation in which an obviously gUilty criminal
attempted to avoid conviction by producing oaths of
several parties but was convicted by an overwhelming
number ofwitnesses.
super jure naturae alendi liberos (s[y]oo-p~r joor-ee
n~-tyoor-ee <l-len-dIlib-~r-ohs). [Law Latin] Hist. On
the ground ofnatural law, obligating persons to support
their children.
superlien. (1984) A government's lien that is imposed
on a property whose condition violates environmental
and public-health and public-safety rules and that has
priority over all other liens, so that the government
can recover public funds spent on cleanup operations.
- A statutory lien is superior to all existing liens and
all later-filed liens on the same property. Superliens
supermajority 1576
are sometimes granted to a state's environmental-pro
tection agency. Several states -including Arkansas,
Connecticut, Massachusetts, New Hampshire, New
Jersey, and Tennessee have enacted statutes creating
superliens on property owned by a party responsible for
environmental cleanup. See LIE~.
supermajority. See MAJORITY.
supermajority provision. A clause in a corporation's
articles ofincorporation requiring more than a simple
majority ofshareholders to vote in favor ofa merger or
substantial sale ofassets.
supernumerarii (s[y]oo-par-n[y]oo-ma-rair-ee-I), n.
[Latin "persons above the number"] Roman law. Offi
cials beyond the permitted number; esp., advocates
who were unregistered and not attached to a particu
lar bar. Cf. STATUTI.
supernumerary witness. See WITNESS.
superoneratio (slyJoo-par-on-a-ray-shee-oh). [Law Latin]
Hist. 1. The act or practice of surcharging a common.
2. The placement of more cattle on a common than is
allowed; overstocking.
superoneratione pasturae. See DE SUPERONERATIONE
PASTURAE.
superplusagium (s[y]oo-par-pla-say-jee-am), n. [Law
Latin] Hist. A surplus; a remainder.
super praerogativa regis (s[y]oo-par pri-rog-<l-tI-va ree
jis), n. [Law Latin] Hist. A writ against the king's tenant's
widow for marrying without royal permission.
superprecedent. See PRECEDENT.
superpriority. Bankruptcy. The special priority status
granted by the court to a creditor for extending credit to
a debtor or trustee that cannot obtain unsecured credit
from a willing lender. This priority may be either an
administrative claim outranking other administrative
claims or, if certain statutory requirements are met,
a security interest in property. 11 USCA 364(c)(1).
[Cases: BankruptcyC=)3036.]
supersede, vb. (17c) I. To annul, make void, or repeal
by taking the place of <the 1996 statute supersedes the
1989 act>. 2. To invoke or make applicable the right
of supersedeas against (an award ofdamages) <what
is the amount of the bond necessary to supersede the
judgment against her?>. [Cases: Appeal and Error
458,460.] -supersession (for sense 1), n.
supersedeas (soo-p<lr-seed-ee-as), n. [Latin "you
shall desist"] (14c) 1. A writ or bond that suspends
a judgment creditor's power to levy execution, usu.
pending appeal. -Also termed writ ofsupersedeas. 2.
See supersedeas bond under BOND (2). [Cases: Appeal
and Error C=>458; Execution 158(2); Supersedeas
PI. supersedeases (soo-p<lr-see-dee-<ls-iz).
supersedeas bond. See BOND (2).
supersedere (s[y]oo-p<lr-sa-deer-ee). [Law Latin] Hist.
SISTo
"When creditors voluntarily agree to supersede or sist dili
gence against their debtor for a certain period, such an
agreement is called a supersedere; and the same name is given to any judicial act by which creditors are restrained
from doing diligence. A creditor who commits a breach
of the supersedere, whether it be voluntary or judicial, is
liable to the debtor in damages." John Trayner, Trayner's
Latin Maxims 591 (4th ed. 1894).
superseding cause. See CAUSE (1).
super stare decisis. See STARE DECISIS.
super statuto (s[y]oo-par st<l-t[y]oo-toh), n. [Law Latin]
Hist. A writ against tenants-in-chief who transferred
their land without the king's permission in violation of
the Statute ofWestminster II, chs. 12 & 13.
super statuto dearticulis deri (s[y]oo-p;:!r sta-t[y]oo-toh
dee ahr-tik-Y<l-lis kleer-I), n. [Law Latin] Hist. A writ
against a sheriff who unlawfully distrains goods.
super statutoJacto pour seneschal et marshal de roy
(s[y]oo-p;:!r sta-t[y]oo-toh fak-toh poor sen-;:!-shahl ay
mahr-[a-Jshahl d<l roy), n. [Law Latin] Hist. A writ to
restrain the court of the Marshalsea from interfering
in matters outside its jurisdiction.
super statuto versus servantes et laboratores (s[y]oo-par
st;:!-t[y]oo-toh var-sas S<lf-Van-teez et lab-<lr-a-tor-eez),
n. [Law Latin] Rist. 1. A writ against someone who
employs laborers who unlawfully left former employ
ments. 2. A writ against a person who refused to work
at the required wage.
superstitious use. See USE (1).
supervening cause. See intervening cause under CAUSE
(1).
supervening impossibility. See IMPOSSIBILITY.
supervening negligence. See subsequent negligence
under NEGLIGENCE.
supervening-negligence doctrine. See LAST-CLEAR
CHANCE DOCTRINE.
supervised visitation. See VISITATION.
supervision, n. The act ofmanaging, directing, or over
seeing persons or projects. -supervise, vb. super
visory (soo-p<lr-VI-za-ree), adj.
supervision order. See ORDER (2).
supervisor, n. (15c) 1. One having authority over others; a
manager or overseer. Under the National Labor Rela
tions Act, a supervisor is any individual having author
ity to hire, transfer, suspend, layoff, recall, promote,
discharge, discipline, and handle grievances ofother
employees, by exercising independent judgment. 2.
The chief administrative officer of a town or county.
[Cases: Counties C;)41.] supervisorial (soo-p<lr
vl-zOr-ee-<lI), adj.
supervisory authority. Military law. An officer who,
exercising general court-martial jurisdiction, reviews
summary and special court-martial trial records after
the convening authority has reviewed them. [Cases:
Military Justice G:=> 1380.]
supervisory control. The control exercised by a higher
court over a lower court, as by prohibiting the lower
court from acting extrajurisdictionally and by revers
1577
ing its extrajurisdictional acts. See MANDAMUS. [Cases:
Courts (;::;:l207.)
supine negligence. See advertent negligence under NEG
LIGENCE.
supplanting limitation. See LIMITATION.
supplemental, adj. (17c) Supplying something additional;
adding what is lacking <supplemental rules>.
supplemental affidavit. See AFFIDAVIT.
supplemental agreement. See side agreement under
AGREEMENT.
supplemental bill. See BILL (2).
supplemental bill in the nature of a bill of review. See
bill in the nature ofa bill ofreview under BILL (2).
supplemental claim. See CLAIM (4).
supplemental complaint. See COMPI.AINT.
supplemental declaration. Patents. A sworn document,
filed after the U.S. Patent and Trademark Office allows
a patent's issuance. See SUPPLEMENTAL OATH.
supplemental jurisdiction. See JURISDICTION.
supplemental-needs trust. See TRUST.
supplemental pleading. See PLEADING (1).
supplemental register. Trademarks. A roll oftrademarks
that are ineligible for listing on the Principal Register
because they are not distinctive . Marks on the sup
plemental register are not protected by trademark law,
except to the extent that the listing may bar the regis
tration of a similar mark. The listing may be required,
however, for the mark to be registered in other coun
tries. 15 USCA 1091. Cf. PRINCIPAL REGISTER. -Also
termed secondary register. Trademarks (;::;:l1246.
Supplemental |
GISTER. -Also
termed secondary register. Trademarks (;::;:l1246.
Supplemental Rules for Certain Maritime and Admi
ralty Claims. A supplement to the Federal Rules of
Civil Procedure, setting out procedures for suits in
admiralty and maritime law.
Snpplemental Security Income. A welfare or needs
based program providing monthly income to the
aged, blind, or disabled. _ It is authorized by the Social
Security Act. Abbr. SSL [Cases; Social Security and
Public Welfare (;::;:l140.5, 175.)
supplemental surety. See SURETY.
supplementary proceeding. See PROCEEDING.
supplendo vices (s~-plen-doh vI-seez). [Law Latin] Hist.
By supplying the place.
suppletory oath (sap-la-tor-ee). See OATH.
suppliant (sap-Iee-ant). (15c) One who humbly requests
something; specif., the actor in a petition of right.
supplicatio (sap-li-kay-shee-oh), n. [Latin) Roman law.
1. A petition to the emperor requesting him to decide
a case, not already before a court, in first instance or,
sometimes, to reopen a case in which no appeal is
normally allowed. PI. supplicationes (sap-li-kay-shee
oh-neez).
"Another mode was supplicatio, petition to the Emperor
by a private person, not allowed when the question was support
already before a court or had been decided and not
properly appealed. It was mainly used to bring matters
before the Emperor or his delegate, in first instance, where
for any reason it was unlikely that justice would be done,
e.g. where the claimant was humble and the opponent a
'potentior,' or where the claimant was of too high rank
to go before the ordinary court, or the decision was of
an unappealable magistrate." W.W. Buckland. Elementary
Principles of the Roman Private Law671 (1912).
2. A petition for a pardon on a first offense. 3. Hist. A
pleading similar to a rejoinder.
supplicavit (sap-li-kay-vit). Hist. A writ issued by the
King's Bench or Chancery for taking sureties of the
peace, obligating a person to be on good behavior for
a specified period . It is commonly directed to the
justices ofthe peace who are hesitant to intervene in
thei r judicial capacities. See surety ofthe peace under
SURETY.
"Any justices ofthe peace, by virtue of their commission, or
those who are ex officio conservators of the peace ... may
demand such security according to their own discretion:
or it may be granted at the request of any subject, upon
due cause shewn .... Or, if the justice is averse to act, it
may be granted by a mandatory writ, called a supplicavit,
issuing out of the court of king's bench or chancery; which
will compel the justice to act, as a ministerial and not as a
judicial officer ...." 4 William Blackstone, Commentaries
on the Laws ofEngland 250 (1769).
supplicium (s;>-plish-ee-;>m), n. [Latin "atonement")
Roman law. A punishment. Ultimum supplicium is
the death penalty.
supplier, n. 1. A person engaged, directly or indirectly,
in the business of making a product available to con
sumers.
"The supplier may be the seller, the manufacturer. or
anyone else in the chain who makes the product avail
able to the consumer." 1Julian B. McDonnell & Elizabeth J.
Coleman, Commercial and Consumer Warranties ~ 6.06[2],
at 6-33 (1991).
2. A person who gives possession of a chattel for anoth
er's use or allows someone else to use or occupy it while
it is in the person's possession or control.
supplies, n. 1. Means of provision or relief; stores avail
able for distribution. 2. In parliamentary proceedings,
the annual grant voted on by the House of Commons for
maintaining the Crown and various public services.
supply, n. The amount of goods produced or available
at a given price.
aggregate supply. The total amount of goods and
services generated in an economy during a specific
period.
supply curve. A line on a price-output graph shOWing the
relationship between a good's price and the quantity
supplied at a given time.
support, n. (14c) 1. Sustenance or maintenance; esp.,
articles such as food and clothing that allow one to live
in the degree of comfort to which one is accustomed.
See MAINTENANCE; NECESSARIES.
"Generally speaking, the words 'support' and 'mainte
nance' are used synonymously to refer to food, clothing
and other conveniences, and shelter, including, in some
cases, medicines, medical care, nursing care, funeral
1578 support agreement
services, education, and reasonable personal care, and
the courtesies and kindness usually obtaining between
individuals that have the same ties of blood in families of
similar station as the contracting parties." 73 Am.Jur.2d
Support ofPersons 1, at 880-81 (2d ed. 1974).
2. One or more monetary payments to a current or
former family member for the purpose of helping the
recipient maintain an acceptable standard ofliving.
Also termed (in both senses) reasonable support. See
ALIMONY. Cf. NONSUPPORT; MAINTENANCE (5). [Cases:
Child Support (>8; Divorce (>208,230.]
child support. See CHILD SUPPORT.
family support. See FAMILY SUPPORT.
spousal support. See ALIMONY.
3. Basis or foundation. 4. The bracing of land so that
it does not cave in because of another landowner's
actions. -support, vb.
lateral support. Support by the land that lies next to the
land under consideration. -Also termed easement
of natural support. [Cases: Adjoining Landowners
(>2.]
subjacent support. Support by the earth that lies under
neath the land under consideration.
support agreement. Oil & gas. A contract between
people or entities in the oil-and-gas industry to
promote exploratory operations . Generally, one party
agrees to contribute money or property to another if
the other will drill a well on leases that it holds and
provide the contributing party with information from
tests conducted. For the contributing party, a support
agreement is a purchase of geological or technologi
cal information. For the party receiving the support,
the contribution lessens the cost or the risk ofdrilling
operations. -Also termed contribution agreement. See
DRY-HOLE AGREEMENT; BOTTOM-HOLE AGREEMENT;
ACREAGE-CONTRIBUTION AGREEMENT. [Cases: Mines
and Minerals (>109.]
support deed. See DEED.
support obligation. (1938) A secondary obligation or let
ter-of-credit right that supports the payment or perfor
mance ofan account, chattel paper, general intangible,
document, healthcare-insurance receivable, instru
ment, or investment property. UCC 9-102(a)(53).
support order. (1948) A court decree requiring a party
(esp. one in a divorce or paternity proceeding) to
make payments to maintain a child or spouse, includ
ing medical, dental, and educational expenses. [Cases:
Child Support (>8,223; Divorce (>208,230.]
foreign support order. An out-of-state support order.
[Cases: Child Support (>500-510; Divorce (>
388.]
support price. See PRICE.
support trust. See TRUST.
suppositiou (S;)p-;)-zish-;m), n. An assumption that
something is true, without proof ofits veracity; the act
of supposing. -suppose, vb. -supposable, adj. suppress, vb. To put a stop to, put down, or prohibit; to
prevent (something) from being seen, heard, known, or
discussed <the defendant tried to suppress the incrimi
nating evidence>. -suppression, n. -suppressible,
suppressive, adj.
suppression hearing. See HEARING.
suppression of evidence. (18c) 1. A trial judge's ruling
that evidence offered by a party should be excluded
because it was illegally acquired. [Cases: Criminal
Law (>394; Evidence (>154.] 2. The destruction of
evidence or the refusal to give evidence at a criminal
proceeding . This is usu. considered a crime. See
OBSTRUCTION OF JUSTICE. [Cases: Obstructing Justice
(>5.] 3. The prosecution's withholding from the
defense of evidence that is favorable to the defendant.
[Cases: Criminal Law (>1990-2008.]
suppressio veri (s;)-pres[h]-ee-oh veer-I). [Latin] Sup
pression of the truth; a type of fraud. Cf. SUGGESTIO
FALSI.
supra (s[y]oo-pr;)). [Latin "above"] (15c) Earlier in this
text; used as a citational Signal to refer to a previously
cited authority. Cf. INFRA.
supra citatum (s[y]oo-pr;) sr-tay-t;)m). [Law Latin] Hist.
Above cited. -Abbr. sup. cit.
supralegal, adj. Above or beyond the law <a supralegal
sovereign>.
supranational, adj. Free of the political limitations of
nations.
supra protest. (Of a debt) under protest. See PROTEST
(3).
supra riparian (soo-pr;) ri-pair-ee-;)n or rr-). (1857)
Upper riparian; higher up the stream . This phrase
describes the estate, rights, and duties of a riparian
owner whose land is situated nearer the source of a
stream than the land it is compared to.
supremacy. (16c) The position ofhaving the superior or
greatest power or authority.
Supremacy Clause. (1940) The clause in Article VI ofthe
U.S. Constitution declaring that the Constitution, all
laws made in furtherance of the Constitution, and all
treaties made under the authority of the United States
are the "supreme law ofthe land" and enjoy legal supe
riority over any conflicting provision ofa state constitu
tion or law. See PREEMPTION. [Cases: States (>18.1.]
supremacy oflaw. See RULE OF LAW (2).
supreme, adj. (16c) (Of a court, power, right, etc.) highest;
superior to all others.
Supreme Civil Court in Scotland. See COURT OF SESSION
(1).
supreme court. (17c) 1. (cap.) SUPREME COURT OF THE
UNITED STATES. 2. An appellate court existing in most
states, usu. as the court oflast resort. [Cases: Courts
(>91(1).] 3. In New York, a court of general jurisdic
tion with trial and appellate divisions . The Court
of Appeals is the court oflast resort in New York. 4.
1579 surety
SCPREME COURT OF JUDICATURE. Abbr. S.c.; S.Ct.;
Sup. Ct.
Supreme Court ofAppeals. The highest court in West
Virginia. [Cases: Courts (::::>252.]
Supreme Court ofErrors. Rist. Ihe court of last resort
in Connecticut. _ The court is now called the Supreme
Court.
Supreme Court of Judicature. The highest court in
England and Wales, consisting of the High Court of
Justice, the Court of Appeal, and the Crown Court.
-The Supreme Court was created under the Judica
ture Act of 1873 that consolidated the existing superior
courts, including the High Court of Chancery, the
court of Queen's Bench, the court of Exchequer, the
High Court ofAdmiralty, the court of Probate, and the
London court ofBankruptcy. -Sometimes shortened
to Supreme Court.
Supreme Court of the United States. The court of
last resort in the federal system, whose members are
appointed by the President and approved by the Senate.
-The Court was established in 1789 by Article III of
the U.S. Constitution, which vests the Court with the
"judicial power of the United States." -Often short
ened to Supreme Court. -Also termed United States
Supreme Court. (Cases: Federal Courts C=441.J
Supreme Judicial Court. See COURT.
supreme law of the land. (lSc) 1. The U.S. Constitu
tion. [Cases: Constitutional Law (::::>502.]2. Acts of
Congress made in accordance with the U.S. Constitu
tion. 3. U.S. treaties. See SUPREMACY CLAUSE.
supreme legislation. See LEGISLATION.
supreme power. See sovereign political power under
POLITICAL POWER.
sur (s;)r). [Law French] Hist. Upon. -This term appears in
various phrases, such as sur cognizance de droit ("upon
acknowledgment of right").
surcharge, n. 1. An additional tax, charge, or cost, usu.
one that is excessive. 2. An additional load or burden.
3. A second or further mortgage. 4. The omission of a
proper credit on an account. 5. The amount that a court
may charge a fiduciary that has breached its duty. 6.
An overprint on a stamp, esp. one that changes its face
value. 7. The overstocking of an area with animals.
surcharge, vb.
surcharge, vb. (15c) 1. To impose an additional (usu.
excessive) tax, charge, or cost. 2. To impose an addi
tionalload or burden. 3. (Of a court) to impose a fine
on a fiduciary for breach of duty. 4. To overstock (an
area) with animals.
second surcharge. To overstock (a common) a second
time for which a writ of second surcharge was |
) with animals.
second surcharge. To overstock (a common) a second
time for which a writ of second surcharge was
issued.
surcharge andfalsify. To scrutinize particular items
in an account to show items that were not credited
as required (to surcharge) and to prove that certain
items were wrongly inserted (to falSify) . The courts
ofchancery usu. granted plaintiffs the opportunity to surcharge and falsify accounts that the defendant
alleged to be settled.
sur cui ante divortium (s;lr kI [or kWI or kwee] an-tee
d;)-vor-shee-",m). See CUI ANTE DIVORTlUM.
sur cui in vita (s;) kI [or kWI or kweel in VIol;)}. See CUI
IN VITA.
sur disclaimer. Rist. A writ brought by a lord against
a tenant who has disclaimed tenure, to recover the
land.
surdus (sar-d;)s), n. [Latin] Roman law. A deaf person.
_ A wholly deaf and mute person could not lawfully
make a will before the time ofJustinian, who modified
the law.
surety (shuur[-;)J-tee). (l4c) 1. A person who is primarily
liable for paying another's debt or performing another's
obligation. -Although a surety is similar to an insurer,
one important difference is that a surety often receives
no compensation for assuming liability. A surety differs
from a guarantor, who is liable to the creditor only ifthe
debtor does not meet the duties owed to the creditor;
the surety is directly liable. Cf. GUARANTOR. [Cases:
Principal and Surety~~l, 65, 66.]
"The words surety and guarantor are often used indiscrimi
nately as synonymous terms; but while a surety and a guar
antor have this in common, that they are both bound for
another person, yet there are points of difference between
them which should be carefully noted. A surety is usually
bound with his prinCipal by the same instrument, executed
at the same time and on the same consideration. He is
an original promisor and debtor from the beginning, and
is held ordinarily to know every default of this principal.
Usually the surety will not be discharged, either by the mere
indulgence of the creditor to the principal, or by want of
notice of the default of the principal, no matter how much
he may be injured thereby. On the other hand, the contract
of the guarantor is his own separate undertaking, in which
the principal does not join. It is usually entered into before
or after that of the principal. and is often founded on a
separate conSideration from that supporting the contract
ofthe principal." 1 George W. Brandt, The Law ofSuretyship
and Guaranty 2, at 9 (3d ed. 1905).
"A surety, in the broad sense, is one who is liable for the
debt or obligation of another, whether primarily or second
arily, conditionally or unconditionally. In other words, the
term surety includes anyone who is bound on an obliga
tion which, as between himself and another person who is
bound to the obligee for the same performance, the latter
obligor should discharge. In this sense, suretyship includes
all accessorial obligations. By such terminology, guaran
tors and indorsers are kinds of sureties.... A surety, in
the narrow sense, is one who is liable in form primarily on
the debt or obligation of another. His obligation is acces
sorial to that of the principal debtor, but it is direct and
not conditioned on the principal debtor'S default. In this
sense, suretyship differs from guaranty and indorsement.
which are conditional, secondary obligations .. _. The word
surety is in the majority of American decisions used in
the narrower sense to indicate a primary obligation to pay
another's debt, to distinguish it from the secondary obliga
tion of a guarantor. This terminology has the advantage of
indicating by the use of the one word 'surety' an obligation
which is at once one to pay another's debt, but which at
the same time is not conditioned upon another's default."
Laurence P. 5im pson, Handbook on the Law ofSuretyship
6, 8-9 (1950).
accommodation surety. See voluntary surety.
1580 surety and fidelity insurance
compensated surety. A surety who is paid for becoming
obliged to the creditor; esp., one that engages in
the business of executing suretyship contracts in
exchange for premiums, which are determined by an
actuarial computation ofrisks. _ A bonding company
is a typical example ofa compensated surety. Also
termed commercial surety.
cosurety. See COSURETY.
gratuitous surety. A surety who is not compensated
for becoming obliged to the creditor. _ Perhaps the
most common example is the parent who signs as a
surety for a child.
subsurety. See SUBSURETY.
supplemental surety. A surety for a surety.
surety of the peace. Hist. A surety responsible for
ensuring that a person will not commit a future
offense. -It is required of one against whom there
are probable grounds to suspect future misbehavior.
See SUPPLICAVIT.
voluntary surety. A surety who receives no consider
ation for the promise to act as a surety. Also termed
accommodation surety.
2. A formal assurance; esp., a pledge, bond, guarantee,
or security given for the fulfillment of an undertak
ing.
surety and fidelity insurance. See fidelity insurance
under INSURANCE.
surety bond. See PERFORMANCE BOND.
surety company. See COMPANY.
surety insurance. See guaranty insurance under INSUR
ANCE.
suretyship. 1. The legal relation that arises when one
party assumes liability for a debt, default, or other
failing ofa second party. -The liability of both parties
begins simultaneously. In other words, under a contract
ofsuretyship, a surety becomes a party to the principal
obligation. [Cases: Principal and Surety (;=: 1,65,66.]
2. The lending of credit to aid a principal who does
not have sufficient credit. _ The purpose is to guard
against loss if the principal debtor were to default. 3.
The position or status of a surety.
involuntary suretyship. A suretyship that arises inci
dentally, when the chief object of the contract is to
accomplish some other purpose. [Cases: Principal
and Surety
personal suretyship. A suretyship in which the surety is
answerable in damages. [Cases: Principal and Surety
real suretyship. A suretyship in which specified
property can be taken, but the surety is not answer
able in damages. [Cases: Principal and Surety
65.]
suretyship by operation oflaw. A suretyship that the
law creates when a third party promises a debtor to
assume and pay the debt that the debtor owes to a
creditor. [Cases: Principal and Surety (;=: 14.) voluntary suretyship. A suretyship in which the chief
object ofthe contract is to make one party a surety.
surface. 1. Ihe top layer of something, esp. of land.
2. Mining law. An entire portion ofland, including
mineral deposits, except those specifically reserved.
-The meaning of the term varies, esp. when used in
legal instruments, depending on the language used,
the intention of the parties, the business involved, and
the nature and circumstances of the transaction. 3.
Mining law. The part ofthe geologic section lying over
the minerals in question.
surface casing. See CASING.
surface-damage dause. Oil & gas. A lease provision
requiring the lessee to pay the lessor or the surface
interest owner for all or for a specified kind or degree
of damage to the surface that results from oil-and-gas
operations. Also termed location-damage clause;
damages clause. [Cases: Mines and Minerals C=:' 120.)
surface interest. Oil & gas. Every right in real property
other than the mineral interest. -The surface-interest
owner has the right to the surface subject to the right
of the mineral-interest owner to use the surface. The
surface-interest owner is entitled to all whatever non
mineral substances are found in or under the soil.
Also termed surface right. Cf. MINERAL INTEREST;
SUBSURFACE INTEREST. [Cases: Mines and Minerals
(;=:55(6).]
surface issue. See ISSUE (1).
Surface Transportation Board. A unit in the U.S.
Department of Transportation responsible for the
economic regulation of interstate surface transporta
tion, primarily railroads. -Its jurisdiction includes
railroad-rate and -service issues, railroad-company
mergers and related labor matters; certain truck and
ocean shipping rates; certain intercity bus-company
structures; and certain pipeline matters not regulated
by the Federal Energy Regulatory Commission.
Abbr. STB. [Cases: Carriers'C=: 10.]
surface water. See WATER.
Surgeon General. (18c) 1. The chief medical officer of the
U.S. Public Health Service or of a state public-health
agency. 2. The chief officer ofthe medical departments
in the armed forces. Abbr. SG.
surmise (S<lr-mIz), n. (l8c) 1. An idea based on weak
evidence; conjecture. 2. Hist. A suggestion, esp. to a
court. 3. Hist. Eccles. law, An allegation in the com
plaint. - A collateral surmise is a surmise of a fact not
contained in the libel. See LIBEL (3).
surname. See NAME.
surplice fees (s~r-plis feez). Eccles. law. Fees paid to
clergy for performing occasional duties, such as mar
riages, funerals, and baptisms.
surplus. 1. The remainder of a thing; the residue or
excess. 2. The excess of receipts over disbursements.
3. Funds that remain after a partnership has been dis
solved and all its debts paid. 4. A corporation's net
1581 surrender
worth, beyond the par value of capital stock. -Also
termed overplus.
accumulated surplus. Earnings in excess ofa corpora
tion's capital and liabilities.
acquired surplus. The surplus gained by the purchase
of another business.
actuarial surplus. See ACTUARIAL SURPLUS.
appreciation surplus. See revaluation surplus.
appropriated surplus.!. The portion of surplus ear
marked for a specific purpose. -Also termed reserved
surplus. 2. See appropriated retained earnings under
EARNINGS.
capital surplus. l. All surplus (such as paid-in surplus
or donated surplus) not arising from the accumula
tion ofprofits; a company's surplus other than earned
surplus, usu. created by financial reorganization or
gifts. 2. See paid-in surplus.
donated surplus.!. Assets (such as stock) contributed
to a corporation. 2. The increase in the shareholders'
equity account resulting from such a contribution.
earned surplus. See retained earnings under
EARNINGS.
initial surplus. The surplus that appears on the finan
cial statement at the beginning of an accounting
period, but that does not reflect the operations for
the statement's period.
paid-in surplus. The surplus gained by the sale,
exchange, or issuance ofcapital stock at a price above
par value. -Also termed capital surplus; premium
on capital stock.
reserved surplus. See appropriated surplus (1).
restricted surplus. A surplus with a limited or restricted
use; esp., the portion ofretained earnings that cannot
be distributed as dividends . The restriction is usu.
due to preferred dividends in arrears, a covenant in
a loan agreement, or some decision of the board of
directors. See retained earnings under EARNINGS.
revaluation surplus. Surplus that is gained when assets
are reappraised at a higher value. -Also termed
appreciation surplus.
trade surplus. The excess ofmerchandise exports over
merchandise imports during a specific period. Cf.
trade deficit under DEFICIT.
unearned surplus. Corporations. The total ofamounts
assigned to shares in excess ofstated capital, surplus
arising from a revaluation of assets above cost, and
contributions other than for shares, whether from
shareholders or others.
surplusage (s<lr-pl<ls-ij). (lSc) l. Redundant words in
a statute or legal instrument; language that does not
add meaning <the court must give effect to every word,
reading nothing as mere surplusage>. [Cases: Statutes
C='202, 206.] 2. Extraneous matter in a pleading <alle
gations that are irrelevant to the case will be treated
as surplusage>. [Cases: Indictment and Information
C='1l8.] "Surplusage is to be avoided. The perfection of pleading is
to combine the requisite certainty and precision with the
greatest possible brevity of statement. 'Surplusage' ...
includes matter of any description which is unnecessary to
the maintenance of the action or defense. The rule requires
the omission of such matter in two instances: (1) Where the
matter is wholly foreign and irrelevant to the merits of the
case. (2) When, though not wholly foreign, such matter
need not be stated." Benjamin J. Shipman, Handbook of
Common-Law Pleading 316, at 514 (Henry Winthrop Bal
lantine ed., 3d ed. 1923).
surplus earnings. See EARNINGS.
surplus-lines insurance. See INSURANCE.
surplus profit. See PROFIT (1).
surplus revenue. See appropriated retained earnings
under EARNINGS.
surplus water. See WATER.
surprise. (ISc) An occurrence for which there is no
adequate warning or that affects someone in an
unexpected way . In a trial, the procedural rules are
designed to limit surprise -or trial by ambush -as
much as possible. For example, the parties in a civil case
are permitted to conduct discovery, to determine the
essential facts of the case and the |
possible. For example, the parties in a civil case
are permitted to conduct discovery, to determine the
essential facts of the case and the identities of possible
witnesses, and to inspect relevant documents. At trial,
if a party calls a witness who has not been previously
identified, the witness's testimony may be excluded ifit
would unfairly surprise and prejudice the other party.
And if a party has diligently prepared the case and is
nevertheless taken by surprise on a material point at
trial, that fact can sometimes be grounds for a new trial
or for relief from the judgment under Rules 59 and 60
of the Federal Rules of Civil Procedure.
surrebuttal (s<lr-ri-b<lt-;Jl). (1853) The response to the
opposing party's rebuttal in a trial or other proceed
ing; a rebuttal to a rebuttal <called two extra witnesses
in surrebuttal>. [Cases: Criminal LawC='683; Federal
Civil Procedure C='201S; Trial C='64.]
surrebutter (s;Jr-ri-b<lt-;Jr). Common-law pleading. (l7c)
The plaintiff's answer offact to the defendant's rebutter.
[Cases: Pleading C='185.]
surrejoinder (s;Jr-ri-joyn-d;Jr). Common-law pleading.
(l6c) The plaintiff's answer to the defendant's rejoinder.
See REPLICATION. [Cases: Pleading C='184.]
"Where the common-law system of pleading is in force, the
pleadings do not terminate with the plaintiff's replication.
The defendant may interpose a rejoinder to the replica
tion, and the plaintiff a surrejoinder to the defendant's
rejoinder. Then follows the rebutter, which in turn may
be met by a surrebutter." 61A Am. Jur. 2d Pleading 193,
at 192 (1981).
surrender, n. (ISc) 1. The act of yielding to another's
power or control. 2. The giving up of a right or claim;
RELEASE (1). [Cases: Release C=' 1.] 3. The return ofan
estate to the person who has a reversion or remain
der, so as to merge the estate into a larger estate. Cf.
MERGER (4).
"Merger bears a very near resemblance, in circumstances
and effect, to a surrender; but the analogy does not hold
in all cases, though there is not any case in which merger
will take place, unless the right of making and surrender
1582 surrender by bail
resided in the parties between whom the merger takes
place. To a surrender, it is requisite that the tenant of the
particular estate should relinquish his estate in favor of the
tenant of the next vested estate, in remainder or reversion.
But merger is confined to the cases in which the tenant of
the estate in reversion or remainder grants that estate to
the tenant of the particular estate, or in which the particular
tenant grants his estate to him in reversion or remainder.
Surrender is the act of the party, and merger is the act of
the law." 4 James Kent, Commentaries on American Law
*100 (George Comstock ed., 11th ed. 1866).
4. Commercial law. The delivery of an instrument so
that the delivery releases the deliverer from all liability.
[Cases: Bills and Notes C~438.1 5. A tenant's relin
quishment of possession before the lease has expired,
allowing the landlord to take possession and treat the
lease as terminated. -Also termed (in sense surren
der of term. [Cases: Landlord and Tenant 109.]
surrender, vb.
surrender by bail. (18c) A surety's delivery of a prisoner,
who had been released on bail, into custody. [Cases:
Bail C=>80.J
surrender by operation oflaw. (1836) An act that is an
equivalent to an agreement by a tenant to abandon
property and the landlord to resume possession, as
when the parties perform an act so inconsistent with
the landlord-tenant relationship that surrender is
presumed, or when a tenant performs some act that
would not be valid if the estate continued to exist.
[Cases: Landlord and Tenant 109,110,194.]
surrender clause. Oil & gas. A provision commonly
found in oil-and-gas leases authorizing a lessee to
release its rights to all or any portion of the leased
property at any time and to be relieved offurther obli
gations on the acreage surrendered. [Cases: Mines and
Minerals G':"::> 77.]
surrenderee. One to whom a surrender is made. See SUR
RENDER.
surrenderer. See SURRENDEROR.
surrender of a criminal. An officer's delivery of a
prisoner to the authorities in the appropriate jurisdic
tion. See EXTRADITION; RENDITION. [Cases: Extradition
and Detainers C=> 16,36.]
surrender ofa preference. Bankruptcy. The yielding ofa
voidable conveyance, transfer, aSSignment, or encum
brance by a creditor to the trustee as a condition of
allowing the creditor's claim. [Cases: BankruptcyC:)
2824.J
surrender ofcharter. Corporations. The dissolution of
a corporation by a formal yielding ofits charter to the
state under which it was created and the subsequent
acceptance of that charter by the state. [Cases: Corpo
rations C=>61O(1).]
"The surrender of a charter can be made only by some
formal, solemn act of the corporation, and will be of no
avail until accepted by the government. There must be the
same agreement ofthe parties to dissolve that there was to
form the compact. It is the acceptance which gives efficacy
to the surrender. Consent of the state is sometimes
by general statute." 19 Am. Jur. 2d Corporations
at 546 (1986). surrender ofcopyhold. Rist. The transfer by a tenant of
a copyhold estate by yielding it to the lord in trust for
the transferee according to the terms in the surrender.
In normal practice, the tenant went to the steward
of the manor and delivered a rod, a glove, or other cus
tomary symbol, thereby conveying to the lord (through
the steward) all interest and title to the estate, in trust,
to be then granted by the lord to the transferee. See
COPYHOLD.
surrender ofterm. See SURRENDER (5).
surrenderor. One who surrenders; esp., one who yields
up a copyhold estate for conveyance. Also spelled
surrenderer. See COPYHOLD.
surrender to uses ofwill. Rist. A required yielding ofa
copyhold interest passed by will to the will's uses . The
requirement was abolished by St. 55 Geo. 3, ch. 192.
surrender value. See cash surrender value UDder VALUE
(2).
surreply. A movant's second supplemental response to
another party's opposition to a motion. Sometimes
written sur-reply. [Cases: Federal Civil Procedure
921.]
surreptitious (s<:lr-<:lp-tish-<:ls), adj. (15c) (Ofconduct)
unauthorized and clandestine; stealthily and usu.
fraudulently done <surreptitious interception ofelec
tronic communications is prohibited under wiretap
ping laws>. [Cases: Telecommunications
surreptitious-entry search warrant. See covert-entry
search warrant under SEARCH WARRANT.
surreptitious-entry warrant. See WARRANT (1).
surrogacy. 1. The act of performing some function in
the place of someone else. 2. The process of carrying
and delivering a child for another [Cases: Child
CustodyC=>274.5; Child Support Children Out
of-Wedlock C=>15; Parent and Child
gestational surrogacy. A pregnancy in which one
woman (the genetic mother) prOVides the egg, which is
fertilized, and another woman (the surrogate mother)
carries the fetus and gives birth to the child.
traditional surrogacy. A pregnancy in which a woman
provides her own egg, which is fertilized by artificial
insemination, and carries the fetus and gives birth to
a child for another person.
surrogacy contract. See SURROGATE-PARENTING AGREE
MENT.
surrogate (sar-<:l-git), n. (17c) 1. A substitute; esp., a
person appointed to act in the place of another <in
his absence, Sam's wife acted as a surrogate>. See SUR
ROGACY; surrogate mother under MOTHER. 2. A probate
judge <the surrogate held that the will was valid>. See
probate judge under JUDGE. 3. One who acts in place of
another. -surrogate, adj. -surrogacy (sar-<'I-g<:l-see),
surrogateship, n.
surrogate carrier. See surrogate mother (1) under
MOTHER.
surrogate court. See probate court under COURT.
1583
surrogate mother. See MOTHER.
surrogate parent. 1. See PARENT. 2. See surrogate mother
under MOTHER.
surrogate-parenting agreement. (1985) A contract
between a woman and typically an infertile couple
under which the woman provides her uterus to carry
an embryo throughout pregnancy; esp., an agreement
between a person (the intentional parent) and a woman
(the surrogate mother) providing that the surrogate
mother will (1) bear a child for the intentional parent,
and (2) relinquish any and all rights to the child. _ If
the surrogate mother is married, her husband must
also consent to the terms of the surrogacy contract.
The agreement usu. provides that the woman will relin
quish to the couple any parental rights she may have
upon the birth ofthe child. Complex issues arise con
cerning who is the parent of the resulting child: the
genetic donor ofegg or sperm, a spouse ofeither donor,
the surrogate, or the person intending to care for the
resulting child? American jurisdictions are split on the
interpretation and enforceability ofthese contracts.
Also termed surrogacy contract. See surrogate mother
under MOTHER; intended child under CHILD; intentional
parent under PARENT. [Cases: Child Custody (..'=274.5;
Child Support (;=63; Children Out-of-Wedlock (~15;
Parent and Child ~20.l
surrogate's court. See probate court under COURT.
surrounding circumstances. (1828) The facts underly
ing an act, injury, or transaction -usu. one at issue in
a legal proceeding.
sursise (S<lr-slz). [Law French] Hist. Neglect; omission.
sursum reddere (sar-s<lm red-;Jr-ee), vb. [Law Latin] Hist.
In conveyancing, to render up or surrender (property
rights, etc.).
sursum redditio (sar-s<lm r<l-dish-ee-oh). [Law Latin]
Hist. In conveyancing, a surrender of an estate by
mutual agreement.
surtax. See TAX.
surtax exemption. (18c) 1. An exclusion of an item from
a surtax. [Cases: Internal Revenue ~3633.12. An item
or an amount not subject to a surtax. See surtax under
TAX.
surveillance (s<lr-vay-bnts), n. (1802) Close observation
or listening ofa person or place in the hope ofgathering
evidence. surveil (s<lr-vayl), vb.
survey, n. (l6c) 1. A general consideration ofsomething;
appraisal <a survey of the situation>. 2. The measur
ing ofa tract ofland and its boundaries and contents; a
map indicating the results ofsuch measurements <the
lender requires a survey of the property before it will
issue a loan>.
government survey. A survey made by a governmental
entity of tracts ofland (as of townships and sections
and quarter-sections ofland). -Also termed (when
conducted by the federal government) congressional
survey. [Cases: Municipal Corporations (..'='42; Public
Lands ~23-28.1 surviving spouse
inclusive survey. A survey that includes within the
described boundaries land that is owned or claimed
by others and excluded from the survey's computed
area.
topographical survey. A survey that determines a prop
erty's elevation above sea level.
3. A governmental department that carries out such
measurements <please obtain the boundaries from
survey>. 4. A poll or questionnaire, esp. one examin
ing popular opinion <the radio station took a survey
of the concert audience>. 5. Maritime law. A written
assessment of the current condition of a vessel or
cargo. -Also termed (in sense 5) survey ofa vessel.
[Cases: Shipping 12.] survey, vb.
survey ofa vessel. See SURVEY (5).
surveyor (sJr-vaY-<lr), n. One who surveys land and
buildings. -surveyorship, n.
surveyor ofthe port. Hist. A U.S. customs revenue officer
appointed for each principal port ofentry to oversee the
inspection and valuation of imports. _ The office was
abolished in 1953.
survival action. (1938) A lawsuit brought on behalfofa
decedent's estate for injuries or damages incurred by
the decedent immediately before dying. _ A survival
action derives from the claim that a decedent would
have had -such as for pain and suffering -if he or
she had survived. In contrast is a claim that the benefi
ciaries may have in a wrongful-death action, such as for
loss of consortium or loss of support from the decedent.
Cf. WRONGFUL-DEATH ACTION. [Cases: Death ~1O.]
survival clause. Wills & estates. A testamentary provi
sion conditioning a bequest on a beneficiary's living
for a specified period, often 60 days, after the testa
tor's death. -I |
a beneficiary's living
for a specified period, often 60 days, after the testa
tor's death. -Ifthe beneficiary dies within the stated
period, the testamentary gift usu. accrues to the resid
uaryestate. -Also termed surVivorship clause. Cf.
SIMULTANEOUS-DEATH CLAUSE.
survival statute. (1892) A law that modifies the common
law by allowing certain actions to continue in favor ofa
personal representative after the death of the party who
could have originally brought the action; esp., a law that
provides for the estate's recovery ofdamages incurred
by the decedent immediately before death. Cf. DEATH
STATUTE. [Cases: Death ~1O.1
survivance. The right ofsuccession (as to an office or to
an estate) of a survivor named before the death of the
incumbent or the holder.
surviving, adj. (l6c) Remaining alive; living beyond the
happening of an event so as to entitle one to a distri
bution ofproperty or income <surviving spouse>. See
SURVIVAL ACTION.
surviving corporation. See CORPORATION.
surviving partner. See PARTNER.
surviving spouse. See SPOUSE.
survivor 1584
survivor. (l5c) 1. One who outlives another. 2. A trustee
who administers a trust after the cotrustee has been
removed, has refused to act, or has died.
survivor-income benefit plan. See EMPLOYEE BENEFIT
PLAN.
survivorship. (l7c) 1. The state or condition ofbeing the
one person out oftwo or more who remains alive after
the others die. 2. The right ofa surviving party having a
joint interest with others in an estate to take the whole.
See RIGHT OF SURVIVORSHIP.
survivorship annuity. See ANNUITY.
survivorship clause. See SURVIVAL CLAUSE.
survivorship policy. See INSURANCE POLICY.
susceptibility. See SUBJECTION (3).
suspect, n. (l4c) A person believed to have committed a
crime or offense.
suspect, vb. 1. To consider (something) to be probable.
2. To consider (something) possible. 3. To consider (a
person) as having probably committed wrongdoing,
but without certain truth.
reasonably suspect. 1. To consider (something) to be
probable under circumstances in which a reasonable
person would be led to that conclusion. 2. To consider
(someone) as having probably committed wrongdo
ing under circumstances in which a reasonable person
would be led to that conclusion.
suspect class. (1952) A group identified or defined in a
suspect classification.
suspect classification. (1949) Constitutional law. A stat
utory classification based on race, national origin, or
alienage, and thereby subject to strict scrutiny under
equal-protection analysis . Examples oflaws creating
suspect classifications are those permitting only U.S.
citizens to receive welfare benefits and setting quotas
for the government's hiring ofminority contractors. See
STRICT SCRUTINY. Cf. FUNDAMENTAL RIGHT. [Cases:
Constitutional Law <:::=>30n, 3078.]
quasi-suspect classification. A statutory classification
based on gender or legitimacy, and therefore subject
to intermediate scrutiny under equal-protection
analysis. Examples of laws creating a quasi-sus
pect classification are those permitting alimony for
women only and providing for an all-male draft. See
INTERMEDIATE SCRUTINY. [Cases: Constitutional Law
<:::=>3074,3081.]
suspend, vb. (14c) 1. To interrupt; postpone; defer <the
fire alarm suspended the prosecutor's opening state
ment>. 2. To temporarily keep (a person) from per
forming a function, occupying an office, holding a job,
or exercising a right or privilege <the attorney's law
license was suspended for violating the Model Rules of
Professional Conduct>. [Cases: Licenses <:::=>38; Officers
and Public Employees <:::=>65.]
suspend the rules. Parliamentary law. To pass a motion
that overrides an agenda or other procedural rule, for
a limited time and purpose, so that the deliberative assembly may take some otherwise obstructed
action.
"When a body wishes to do something that cannot be
done without violating its own rules, but yet that is not in
conflict with the constitution or with any controlling statu
tory provision, it 'suspends the rules that interfere with'
the proposed action. Suspension differs from amendment
because it is limited in scope and in time. The object of the
suspension must be specified, and nothing falling outside
the stated limits of the motion to suspend the rules can
be done under the suspension." National Conference of
State Legislatures, Mason's Manual ofLegislative Procedure
279, at 211 (2000).
suspendatur per collum (sas-pen-day-tar par kahl-am).
[Law French] Hist. Let him be hanged by the neck.
This phrase was written by a judge in the margin ofthe
sheriff's calendar, opposite the name ofa prisoner who
had been sentenced to death. -Abbr. sus. per coll.
"And now the usage is, for the judge to sign the calendar,
or list of all the prisoners' names, with their separate judg
ments in the margin, which is left with the sheriff. As, for
capital felony, it is written opposite to the prisoner's name,
'hanged by the neck;' formerly, in the days of Latin and
abbreviation, 'sus. per call.' for 'suspendatur per collum.'
And this is the only warrant that the sheriff has for so
material an act as taking away life of another." 4 William
Blackstone, Commentaries on the Laws of England 396
(1769).
suspended sentence. See SENTENCE.
suspended trading. See TRADING HALT.
suspense. (l5c) The state or condition of being suspended;
temporary cessation <a suspense ofjudgment>.
suspense account. See ACCOUNT.
suspense reserve. See appropriated retained earnings
under EARNINGS.
suspension. (l5c) 1. The act of temporarily delaying,
interrupting, or terminating something <suspension
of business operations> <suspension of a statute>. 2.
The state of such delay, interruption, or termination
<corporate transfers were not allowed because of the
suspension of business>. 3. The temporary depriva
tion of a person's powers or privileges, esp. of office or
profession; esp., a fairly stringent level oflawyer disci
pline that prohibits the lawyer from practicing law for
a specified period, usu. from several months to several
years <suspension of the bar license>. Suspension
may entail requiring the lawyer to pass a legal-ethics
bar examination, or to take one or more ethics courses
as continuing legal education, before being readmitted
to active practice. [Cases: Licenses <:::=>38; Officers and
Public Employees <:::=>65.J 4. The temporary withdrawal
from employment, as distinguished from permanent
severance <suspension from teaching without pay>.
[Cases: Labor and Employment <:::=>825.J 5. Eccles. law.
An ecclesiastical censure that can be temporary or per
manent, and partial or complete. See DEPRIVATION. 6.
Scots law. The process of staying a judgment pending
an appeal to the Supreme Court.
suspension ofarms. See TRUCE.
suspension ofjudgment. See STAY.
1585
suspension of trading. The temporary cessation of
all trading of a particular stock on a stock exchange
because ofsome abnormal market condition.
suspensive appeal. See APPEAL.
suspensive condition. See CONDITION (2).
suspensive veto. See suspensory veto under VETO.
suspensory veto. See VETO.
sus. per coll. abbr. SUSPENDATUR PER COLLUM.
suspicion. (14c) The apprehension or imagination ofthe
existence ofsomething wrong based only on inconclu
sive or slight evidence, or possibly even no evidence.
reasonable suspicion. (18c) A particularized and
objective basis, supported by specific and articulable
facts, for suspecting a person of criminal activity.
A police officer must have a reasonable suspicion to
stop a person in a public place. See STOP AND FRISK.
Cf. PROBABLE CAUSE. [Cases: Arrest
suspicious-activity report. (1996) A form that, as of
1996, a financial institution must complete and submit
to federal regulatory authorities if it suspects that a
federal crime has occurred in the course ofa monetary
transaction . This form superseded two earlier forms,
the criminal-referral form and the suspicious-transac
tion report. -Abbr. SAR. [Cases: Banks and Banking c= 151,188.5; United StatesC=34.]
suspicious character. (18c) In some states, a person
who is strongly suspected or known to be a habitual
criminal and therefore may be arrested or required to
give security for good behavior.
suspicious-transaction report. (1993) A checkbox on
IRS Form 4789 formerly (1990-1995) requiring banks
and other financial institutions to report transactions
that might be relevant to a violation ofthe Bank Secrecy
Act or its regulations or that might suggest money
laundering or tax evasion. _ This checkbox, like the
criminal-referral form, has since been superseded by
the suspicious-activity report. Abbr. STR. [Cases:
Banks and Banking C:;:, 151.)
sustain, vb. (Be) 1. To support or maintain, esp. over
a long period <enough oxygen to sustain life>. 2. To
nourish and encourage; lend strength to <she helped
sustain the criminal enterprise>. 3. To undergo; suffer
<Charles sustained third-degree burns>. 4. (Of a court)
to uphold or rule in favor of <objection sustained>. 5.
To substantiate or corroborate <several witnesses sus
tained Ms. Sipes's allegation>. 6. To persist in making
(an effort) over a long period <he sustained his vow of
silence for the last 16 years ofhis life>. -sustainment,
sustentation, n. sustainable, adj.
suthdure (suuth-door). Hist. Eccles. law. The south door
ofa church, where purgations and other acts were per
formed and complaints were heard and resolved.
suum cuique tribuere (s[y)oo-dm k[wJI-kwee tri-byoo
dr-ee), vb. [Latin] Roman law. To render to every person
his due. This was one ofthe three general precepts in
which Justinian expressed the requirements ofthe law.
Cf. ALTERUM NON LAEDERE; HONESTE VIVERE. swearing behind
suus heres (s[y]OO-dS heer-eez). [Latin] Roman law. An
heir in the power of the deceased, by whom accep
tance of the inheritance was not necessary. See SUI
HEREDES.
suus judex (s[yJOO-dS joo-deks). [Law Latin] Hist. A
proper judge in a cause.
suzerain (soo-zd-rin or -rayn), n. [Law French] 1. Hist.
A Crown tenant; a tenant in capite holding an estate
immediately of the Crown. 2. Int'I law. A nation that
exercises control over another nation's foreign rela
tions. Also spelled suzereign.
suzerainty (soo-zd-rin-tee or -rayn-tee). 1. Hist. The
power of a feudal overlord to whom fealty is due. See
FEALTY. 2. Int'llaw. The dominion of a nation that
controls the foreign relations of another nation but
allows it autonomy in its domestic affairs.
"At the present time there appears to be no instance of a
relation between states which is described as a suzerainty.
The term was applied to the relation between Great Britain
and the South African Republic, and also to that between
Turkey and Bulgaria from 1878 to 1909, but it seems likely
to disappear from diplomatic terminology." J.L. Brierly, The
Law ofNations 128 (5th ed. 1955).
suzereign. See SUZERAIN.
S.W. abbr. SOUTH WESTERN REPORTER.
swamp and overflowed land. See LAND.
swap, n. Commercial law. 1. An exchange ofone security
for another. 2. A financial transaction between two
parties, usu. involVing an intermediary or dealer, in
which payments or rates are exchanged over a specified
period and according to specified conditions.
currency swap. An agreement to swap specified
payment obligations denominated in one currency
for specified payment obligations denominated in a
different currency.
stock swap. In a corporate reorganization, an exchange
ofone corporation's stock for another corporation's
stock. Also termed stock10r-stock exchange.
swarfmoney. Hist. A payment made in lieu ofthe service
of maintaining a lord's castle.
swatting, n. Slang. The act offalsely telephoning a report
ofa serious crime or emergency in progress in order to
provoke a response from a law-enforcement agency, esp.
the dispatch ofa SWAT (Special Weapons and Tactics)
team. Swatting schemes are often elaborate, involv
ing the use ofelectronic tools to mask the caller's true
identity and location, such as VOice-changing devices,
fake caller-IDs, and the like. swatter, n.
swear, vb. (bef. 12c) 1. To administer an oath to (a
person). [Cases: Oath 2. To take an oath. 3. To
llse obscene or profane language.
swearing behind. Patents. A patent applicant's shOWing
that an invention was conceived of |
language.
swearing behind. Patents. A patent applicant's shOWing
that an invention was conceived of or reduced to
practice before the effective date of a prior-art refer
ence cited by a patent examiner as grounds for rejecting
an application. 37 CFR 1.131. -Also termed swearing
behind the reference. See ANTEDATING OF A PRIOR
swearing contest 1586
ART REFERENCE.[Cases: Patents C:>91(.S).] -swear
behind, vb.
swearing contest. See SWEARING MATCH.
swearing-in, n. (1900) The administration of an oath to
a person who is taking office or testifying in a legal pro
ceeding. See OATH. [Cases: Officers and Public Employ
ees C=>36(l).]
swearing match. (1907) A dispute in which determining
a vital fact involves the credibility choice between one
witness's word and another's the two being irrecon
cilably in conflict and there being no other evidence.
In such a dispute, the fact-finder is generally thought
to believe the more reputable witness, such as a police
officer over a convicted drug-dealer. -Also termed
swearing contest; oath against an oath.
swearing the peace. Hist. 1he giving of proofto a mag
istrate that one fears for one's own safety, so that the
magistrate will order the troublemaker to keep the
peace by issuing a supplicavit. See SUPPLICAVIT.
swear out, vb. (1850) To obtain the issue of (an arrest
warrant) by making a charge under oath <Franklin
swore out a complaint against Sutton>.
sweat equity. (1966) Financial equity created in property
by the owner's labor in improving the property <the
lender required the homeowner to put 300 hours of
sweat equity into the property>.
sweating. (1824) Criminal procedure. The illegal interro
gation of a prisoner by use of threats or similar means
to extort information.
sweat-of-the-brow doctrine. Copyright. The now
discarded principle that copyrights can protect the
labor and expense that went into a work, rather than
the work's originality . The Supreme Court rejected
the sweat-of-the-brow doctrine in Feist Pubs., Inc. v.
Rural Tel. Servs. Co., 499 U.S. 340, 111 S.Ct. 1282 (1991).
Cf. SWEATWORK. [Cases: Copyrights and Intellectual
Property C:> 12(1).]
sweatshop. (1890) Slang. A business where the employees
are overworked and underpaid in extreme conditions;
esp., in lawyer parlance, a law firm that requires associ
ates to work so hard that they barely (if at all) maintain
a family or social life though the firm may, in return,
pay higher salaries.
sweatwork. Slang. A compilation, esp. a searchable
computer database, that does not qualify for u.s. copy
right protection because the underlying facts are not
copyrightable and the compilation is not a nontrivial
arrangement . New forms of intellectual-property
laws are aimed at protecting the "sweat-of-the-brow"
investment that goes into compiling databases. Cf.
SWEAT-OF- THE-BROW DOCTRINE. [Cases: Copyrights
and Intellectual Property C:> 12(3).]
sweeping, adj. 1. Comprehensive in scope <a sweeping
objection><sweeping legislation>. 2. Overwhelming
<sweeping voter turnout>.
Sweeping Clause. See NECESSARY AND PROPER CLAUSE. sweepstakes. 1. A race (esp. a horse race) in which the
winner's prize is the sum of the stakes contributed by
the various competitors. 2. A contest, often for pro
motional purposes, that awards prizes based on the
random selection of entries. State and federal laws
prohibit conducting a sweepstakes as a scheme to
obtain money or property through the mail by false
representations. 39 USCA 3005. [Cases: GamingC:>
62; Lotteries C:>3.]
sweetener. 1. An inducement offered to a brokerage
firm to enter into an underwriting arrangement with
an issuer. 2. A special stock feature (such as convert
ibility) that enhances the stock's marketability.
sweetheart deal. A collusive agreement; esp., a collec
tive-bargaining agreement made as a result of collusion
between an employer and a union representative, usu.
allowing the employer to pay lower wages in exchange
for payoffs to the union representative.
sweiu (swayn). Hist. A forest freeholder. Also spelled
swain.
sweinmote (swayn-moht). Hist. A forest court held three
times a year, before verderors as judges and freehold
ers of the forest as jurors, to try forest offenses. -Also
spelled swainmote; swanimote; swainemote; swainge
mote.
"The court of sweinmote is to be holden before the verd
erors, as judges, by the steward of the sweinmote thrice
in every year .... The principal jurisdiction of this court
is, first, to enquire into the oppressions and grievances
committed by the officers of the forest ... and, secondly,
to receive and try presentments certified from the court
of attachments against offences in vert and venison." 3
William Blackstone, Commentaries on the Laws ofEngland
72 (1768).
swell, n. 1. An expansion in the bulk of something <a
swell resulting from defective canning procedures>.
2. A gradual rise ofsomething <a swell of damages>.
3. A large, unbroken wave; the collective waves, par
ticularly following a storm <a rough swell caused the
shipwreck>.
swift witness. See zealous witness under WITNESS.
swindle, vb. (18c) To cheat (a person) out of property
<Johnson swindled Norton out of his entire savings>
<Johnson swindled Norton's entire savings out of
him>. -swindle, n. -swindling, n.
swindler. A person who willfully defrauds or cheats
another.
swinging-door chad. See CHAD.
swing loan. See bridge loan under LOAN.
swing vote. (1962) The vote that determines an issue
when all other voting parties, such as appellate judges,
are evenly split.
swipe, vb. 1. To strike or try to strike with a swinging
blow <the cat swiped its claws across my hand>. 2.
To steal <the thief swiped the ring out of the display
case>. 3. To pass a card with a magnetic stripe through
a machine that reads the stripe <I swiped my credit
1587
card through the pay phone's reader and made my
call>. -Sometimes termed (in sense 3) wipe.
switching. In mutual funds, the practice ofselling shares
in one fund to buy shares in another.
swoling (swuul-ing). Rist. The quantity ofland that
can be plowed in a year; a hide ofland. -Also spelled
suling (suuI-lng); sulung (suu-Iuung). Also termed
swoling ofland.
sworn brothers. Hist. Persons who, by mutual oaths,
swear to share in each other's fortunes.
sworn clerks in chancery. Hist. Certain officers in the
Court of Chancery who assist the six principal clerks
by performing clerical tasks, including keeping records
and making copies of pleadings. lhe offices were
abolished in 1842 by the Court of Chancery Act. St. 5
& 6 Vict., ch. 103. -Also termed sixty clerks.
sworn statement. See STATEMENT.
SYD. abbr. Sum of the years' digits. See sum-of-the
years'-digits depreciation method under DEPRECIATION
METHOD.
SYD method. See sum-of-the-year's-digits depreciation
method under DEPRECIATION METHOD.
syllabus (sil-a-bas). 1. An abstract or outline ofa topic or
course ofstudy. 2. A case summary appearing before the
printed judicial opinion in a law report, briefly reciting
the facts and the holding of the case . 'The syllabus is
ordinarily not part of the court's official opinion.
Sometimes termed headnote. Cf. HEADNOTE. PI. syl
labuses, syllabi (sil-a-br).
symbiotic-relationship test. (1973) The standard by
which a private person may be considered a state
actor -and may be liable for violating someone's
constitutional rights -if the relationship between
the private person and the government is so dose that
they can fairly be said to be acting jointly. _ Private
acts by a private person do not generally create liability
for violating someone's constitutional rights. But if a
private person violates some one's constitutional rights
while engaging in state action, the private person, and
possibly the government, can be held liable. State action
may be shown by proving that the private person and
the state have a mutually dependent (symbiotic) rela
tionship. For example, a restaurant in a public parking
garage was held to have engaged in discriminatory state
action by refusing to serve African-Americans. Burton
v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct.
856 (1961). There, the Court found a symbiotic rela
tionship because the restaurant relied on the garage
for its existence and Significantly contributed to the
municipal parking authority's ability to maintain the
garage. But the symbiotic-relationship test is strictly
construed. For example, the fact that an entity receives
financial support from -or is heavily regulated by
the government is probably insufficient to show a sym
biotic relationship. lbus, although a state had granted a
partial monopoly to a public utility, the Court refused
to find a symbiotic relationship between them. Jackson
v. Metropolitan Edison Co., 419 U.S. 345,95 S.Ct. 449 synergism
(1974). See JOINT-PARTICIPATION TEST. Cf. STATE-COM
PULSION TEST; NEXUS TEST. (Cases: Civil Rights
1326(5,7); Constitutional Law C--:::>1061.]
symbolaeography (sim-b<l-lee-og-ra-fee). The art of
drafting legal instruments.
symbolic, adj. (Ofa signature) consisting ofa symbol or
mark. Cf. ONOMASTIC (2); HOLOGRAPH.
symbolic delivery. See DELIVERY.
symbolic speech. See SPEECH.
symbolum animae (sim-ba-lam an-<l-mee). [Latin] Rist.
A mortuary. See MORTUARY (2).
sympathy strike. See STRIKE.
synallagmatic contract. See CONTRACT.
synchronization license. See LICENSE.
syndic (sin-dik), n. [French "governmental representa
tive"]!. An agent (esp. ofa government or corporation)
appointed to transact business for others. 2. Civil law. A
bankruptcy trustee. [Cases: Bankruptcy (;:~3001.]
syndicalism (sin-di-b-liz-am), n. A direct plan or
practice implemented by trade-union workers seeking
to control the means of production and distribution,
esp. by using a general strike. -syndicalist, n.
criminal syndicalism. Any doctrine that advocates or
teaches the use ofillegal methods to change industrial
or political control.
syndicate (sin-di-kit), n. (17c) A group organized for
a common purpose; esp., an association formed to
promote a common interest, carry out a particular
business transaction, or (in a negative sense) organize
criminal enterprises. See ORGANIZED CRIME. -syndi
cate (sin-di-kayt), vb. -syndication (sin-di-kay-shan),
n. -syndicator (sin-di-kay-t<lr), n.
buyingsyndicate. A group ofinvestment bankers who
share the risk in underwriting a securities issue.
syndicate book. Securities. A list of investors who have
expressed an interest in purchaSing shares in a forth
coming public offering . The lead managing under
writer of the offering compiles and maintains the list
during the offering.
syndicating. l. Ihe act or process offorming a syndicate.
2. The gathering ofmaterials for newspaper publication
from various writers and distribution of the materi
als at regular intervals to newspapers throughout the
country for publication on the same day.
syndicus (sin-di-bs), n. [Latin "advocate" fr. Greeksyn
"with" + dike "lawsuit"] Roman law. One chosen (by a
corporate body such as a municipality, college, etc.) to
represent it at law. See SYNDIC.
synergism (sin-ar-jiz-am), n. Patents. 1. A combination
of known elements or functions that create a result
greater than the sum of the individual elements or
functions. Demonstrating that synergism exists is
sometimes useful in proving nonobviousness. The U.S.
Supreme Court held that synergism was a requirement
for a combination patent in Great Atl. & Pac. Tea Co. v.
1588 syngraph
Supermarket Equip. Corp., 340 U.S. 147 (1950). But that
holding was overturned by the Patent Act of 1952. 35
USCA 103. [Cases: Patents G~26(1.5).12. A patent
able device that produces a new or different function or
an unusual or surprising consequence. -Also termed
synergy; synergistic result. -synergistic (sin-Jr-jis-tik),
synergetic (sin-Jr-jet-ik), adj.
syngraph (sin-graf). A written contract or bond Signed
by all the parties.
synod (sin-<ld). Eccles. law. An ecclesiastical council
lawfully assembled to determine church matters; |
synod (sin-<ld). Eccles. law. An ecclesiastical council
lawfully assembled to determine church matters; esp., a
meeting of several adjoining presbyteries in the Presby
terian church. [Cases: Religious Societies 12.)
diocesan synod (dy-os-<l-s<ln). A synod composed of
clergy from one diocese.
general synod. A synod composed ofbishops from all
nations. Also termed universal synod.
national synod. A synod composed of clergy from a
single nation.
provincial synod. A synod composed of clergy from a
single province. -Also termed convocation.
synodal (sin-Cl-dJI), n. 1. A collection of ordinances of
diocesan synods. 2. A tribute ofmoney given by clergy
to a bishop at the Easter visitation. synodales testes (sin-<l-day-Ieez tes-teez), n. [Law Latin
"synods-men"] Hist. Persons who gave evidence at
synods (or later at visitations), informing them ofmis
conduct by clergy or laity.
synodsman. See SIDESMAN.
synopsis (si-nop-sis), n. (17c) A brief or partial survey:
a summary or outline; HEADNOTE. synopsize (si
nop-sIz), vb.
synthetic lease. See LEASE.
synthetic rule. See QUANTITATIVE RULE.
systematic jurisprudence. See expository jurisprudence
under JURISPRUDENCE.
systematic violation. (1980) Civil-rights law. An employ
er's policy or procedure that discriminates against an
employee. Such a policy or procedure will usu. be
considered a continuing violation. So an employee's
claim of unlawful discrimination will not be barred
as untimely as long as some discriminatory effect of
the policy or procedure occurs within the limitations
period (e.g., 300 days for a Title VII claim). Cf. SERIAL
VIOLATION. [Cases: Civil Rights 1505(7).]
T
T. Hist. 1. A letter branded on the base of the thumb of
a person who claimed the benefit of clergy to prevent
the person from claiming it again . 'Ibis practice was
formally abolished by the Criminal Statutes (England)
Repeal Act of 1827. 2. In Pennsylvania, a letter sewn
onto the left sleeve ofa convicted thief . This letter
required by a 1698 statute -had to be at least four
inches high and of a different color from the rest of
the garment.
TAB. abbr. TAX-ANTIClPATION BILL.
table, n. 1. A synopsized representation, esp. in columnar
form, of the particulars of a subject, usu. to present
diverse items in a way that can be more easily under
stood. Examples include actuarial tables, genealogical
tables (which show the names and relationships of all
the persons constituting a family), and interest tables.
2. A formulation oflaws inscribed on tablets, such as
the Twelve Tables of Roman law. See TWELVE TABLES.
3. Parliamentary law. The secretary's desk.
table, vb. (1849) Parliamentary law. (Of a deliberative
assembly) to set aside the pending business until the
assembly votes to resume its consideration . A matter
that has been tabled may be brought up again by a
vote of the assembly. -Also termed lay on the table;
postpone temporarily.
"The early name of the motion to postpone temporarily was
'lay on the table.' (In American usage the phrase has been
shortened, and the motion is now generally referred to as
the motion 'to table.') The term grew out of the legislative
custom of literally laying a bill awaiting further consider
ation on the clerk's table.
"The reference to 'laying the motion on the table' or
'tabling' is still widely used, but the more precise term,
'postpone temporarily,' is preferred when that is its
purpose, because the term is self-explanatory.
"Sometimes, however, the purpose of the motion is not
merely to postpone temporarily, but to set the motion
aside indefinitely -in effect, to 'kill' it ...." Alice Sturgis,
The Standard Code ofParliamentary Procedure 70 (4th ed.
2001).
2. English law. To put forward (a bill, proposal, resolu
tion, etc.) for consideration and discussion by a legisla
tive or deliberative assembly.
tableau of distribution. Civil law. A list of creditors of
an estate, stating what each is entitled to. Seejudgment
homologating the tableau under JUDGMENT.
tableaux vivant. Copyright. A performance by actors
dressed as characters in a painting and acting out the
event portrayed in the painting.
table ofauthorities. See INDEX OF AUTHORITIES.
table of cases. (18c) 1. An alphabetical list of the cases
cited in a brief or lawbook, usu. prefixed or appended
to it, with one or more page or section numbers showing where in the text each case is cited. 2. INDEX
OF AUTHORITIES.
Tablets ofAmalfi. See AMALPHITAN CODE.
tabula in naufragio. [Latin "the last plank from the ship
wreck"] Something added to a lawsuit, often on appeal,
as a last-ditch argument or as an afterthought.
tabula rasa (tab-Y<:l-l<:l rah-s<:l or -Z<:l). [Latin "scraped
tablet"] (16c) A blank tablet ready for writing; a clean
slate. PI. tabulae rasae (tab-Yd-Iee-rahs-r).
tabular form. See SUBPARAGRAPH FORM.
tabulis exhibendis. See DE TABULrs EXHIBENDIS.
T-account. An accounting form shaped like the letter
T, with the account's name above the horizontal line,
debits listed to the left of the vertical line, and credits
to the right.
tacere per quadriennium utile (td-seer-ee pdf kwod
ree-en-ee-<:lm yoo-t<:l-lee). [Law Latin) Hist. To be
silent throughout the four years after majority . A
person is estopped from challenging a deed made when
that person was a minor if the right is not exercised
within the four years after the person reaches the age
ofmajority.
tacit (tas-it), adj. (l7c) 1. Implied but not actually
expressed; implied by silence or silent acquiescence
<a tacit understanding> <a tacit admission>. 2. Civil
law. Arising by operation of law; constructive <a
tacit mortgage> <tacit relocation>. La. Civ. Code art.
3506(30). -tacitly, adv.
tacit acceptance. Civil law. l. An acceptance of an offer
indicated by circumstances or operation oflaw rather
than express words. La. Civ. Code art. ] 927. 2. An
acceptance of an inheritance, indicated by the heir's
doing some act that shows an intent to accept it and
that the heir would have no right to do except in that
capacity. [Cases: Descent and Distribution
119(2).]
tacit admission. See implied admission under ADMIS
SION (1).
tacit collusion. See CONSCIOUS PARALLELISM.
tacit contract. See CONTRACT.
tacit dedication. See DEDICATION.
tacit hypothecation. See HYPOTHECATION.
tacit law. See LAW.
tacit mortgage. 1. See legal mortgage under MORTGAGE.
2. See tacit hypothecation under HYPOTHECATION.
tadt prorogation. See PROROGATION.
tacit relocation. The implied or constructive renewal of
a lease, usu. on a year-to-year basis, when the landlord
and tenant have failed to indicate their intention to
1590 tacit-relocation doctrine
have the lease terminated at the end of the original
term. [Cases: Landlord and Tenant 115(1).]
tacit-relocation doctrine. The principle under which
a lease is presumed to continue (usu. for a one-year
period) beyond its expiration date because of the
parties' failure to indicate that the agreement should
terminate at the stipulated date. [Cases: Landlord and
Tenant (:::;:> 115(1).]
tacit remission. See REMISSION.
tack, n. Scots law. A deed creating a lease of land or
other immovable property for an annual rent payable
in money, services, or fruits produced on the land.
The lessee may be referred to as a tacksman or tacks
woman. -tack, vb.
tack, vb. 1. To add (one's own period ofland possession)
to a prior possessor's period to establish continuous
adverse possession for the statutory period. [Cases:
Adverse Possession 2. To annex (a junior lien)
to a first lien to acquire priority over an intermediate
lien.
'"It is the established doctrine in the English law, that if
there be three mortgages in succession, and all duly reg
istered, or a mortgage, and then a judgment, and then a
second mortgage upon the estate, the junior mortgagee
may purchase in the first mortgage, and tack it to his
mortgage, and by that contrivance 'squeeze out' the middle
mortgage and gain preference over it. The same rule would
apply if the first as well as the second incumbrance was a
judgment; but the incumbrancer who tacks must always
be a mortgagee, for he stands in the light of a bona fide
purchaser, parting with his money upon the security of the
mortgage." 4 James Kent, Commentaries on American Law
*176 (George Comstock ed., 11th ed. 1866).
3. Scots law. To lease land or another immovable for
an annual rent payable in money, services, or fruits
produced on the land.
tacking. (18c) 1. The joining of consecutive periods of
possession by different persons to treat the periods as
one continuous period; esp., the adding of one's own
period ofland possession to that ofa prior possessor to
establish continuous adverse possession for the statu
tory period. See ADVERSE POSSESSION. [Cases: Adverse
Possession (:::::>43.] 2. The joining ofa junior lien with
the first lien in order to acquire priority over an inter
mediate lien. [Cases: Mortgages (;~::) 151(2).]
Taft-Hartley Act. See LABOR-MANAGEMENT RELATIONS
ACT.
Taft-Hartley fund, See joint-welfare fund under FUND
(1).
tail, n. (14c) The limitation of an estate so that it can be
inherited only by the fee owner's issue or class ofissue.
See FEE TAIL; ENTAIL. Also termed (in Scots law)
tailzie (tay-Iee). lCases: Descent and Distribution C=
29; Estates in Property 12; Wills (:::::>604.]
several tail. A tail that designates two separate heirs or
classes of heirs who are eligible to inherit.
tail female. (ISc) A limitation to female heirs. [Cases:
Estates in Property Wills (:::::)605.] tail general. (15c) 1. A tail limited to the issue of
a particular person, but not to that of a particular
couple. -Also termed general tail. 2. See tail male.
[Cases: Estates in Property Wills (,~604.1
tail male. (17c) A limitation to male heirs. Also
termed tail general. [Cases: Estates in Property
12; Wills (:::::>604.]
tail special. (15c) A tail limited to specified heirs of
the donee's body. -Also termed special tail. [Cases:
Estates in Property C='12; Wills (:::::>604.]
"Estates-tail are either general, or special . ... Tenant in tail
special is where the gift is restrained to certain heirs ...
and does not go to all of them in general. And this may
happen in several ways. I shall instance in only one: as
where lands and tenements are given to a man and the
heirs ofhis body. on Mary his now wife to be begotten; here
no issue can inherit, but such special issue as is engen
dered, between them two; not such as the husband may
have by another wife; and therefore it is called special tail."
2 William Blackstone, Commentaries on the Laws ofEngland
113-14 (1766).
tail coverage. Insurance. An extension ofa claims-made
profeSSional-liability policy to protect against claims
and lawsuits filed after the end of the policy period
but based on negligent acts that occurred during the
policy period. -Also termed extended-reporting
period endorsement. Cf. PRIOR-ACTS COVERAGE. [Cases:
Insurance 92266.]
tailzie (tay-Iee), n. Scots law. 1. See ENTAIL. 2. See TAIL.
taint, n. (16c) 1. A conviction of felony. 2. A person so
convicted. See ATTAINDER.
taint, vb. (14c) 1. To imbue with a noxious quality or
principle. 2. To contaminate or corrupt. 3. To tinge or
affect slightly for the worse. taint, n.
tainted evidence. See EVIDENCE.
tainted stock. See STOCK.
take, vb. (bef. 12c) 1. To obtain possession or control,
whether legally or illegally <it's a felony to take that
property without the owner's consent>. 2. To seize
with authority; to confiscate or apprehend <take the
suspect into custody>. 3. To acquire (property) for
public use by eminent domain; (of a governmental
entity) to seize or condemn property <the state took
the land under its eminent-domain powers>. [Cases:
Eminent Domain C-::> 1-65.] 4. To acquire possession
by virtue ofa grant oftitle, the use ofeminent domain,
or other legal means; esp., to receive property by will
or intestate succession <the prob |
, the use ofeminent domain,
or other legal means; esp., to receive property by will
or intestate succession <the probate code indicates the
proportions according to which each heir will take>.
See TAKING. 5. To claim one's rights under <she took
the Fifth Amendment>.
take a default judgment. To reduce to final judgment
a defendant's failure to timely answer a lawsuit. -The
process usu. involves informing the court of the defen
dant's failure to answer, proving damages, and sub
mitting a proposed judgment for the judge to Sign. See
DEFAULT JUDGMENT. [Cases: Federal Civil Procedure
C='2423; Judgment (:::::>92-131.]
1591
take a deposition. To obtain the testimony ofa witness
by deposition. See DEPOSITION (1). [Cases: Federal Civil
Procedure C=> 1371; Pretrial Procedure (,~d91.]
take away, vb. Hist. To entice or persuade (a female
under the age of 18) to leave her family for purposes of
marriage, prostitution, or illicit sex. See ABDUCTIO:N
(2).
take back, vb. (18c) To revoke; to retract.
take by stealth. (16c) To steal (personal property); to
pilfer or filch. [Cases: Larceny C=> I, 12.]
take care of. (16c) 1. To support or look after (a person).
2. To pay (a debt). 3. To attend to (some matter).
take delivery. (1829) To receive something purchased or
ordered; esp., to receive a commodity under a futures
contract or spot-market contract, or to receive securi
ties recently purchased.
take effect, vb. (14c) L To become operative or executed.
2. To be in force; to go into operation.
take from the table. Parliamentary law. To resume
consideration of (business previously tabled). -Also
termed resume consideration.
take-home pay. Gross wages or salary reduced by deduc
tions such as income taxes, social-security taxes, vol
untary contributions, and union dues; the net amount
ofa paycheck.
take-it-or-Ieave-it contract. See adhesion contract under
CONTRACT.
take-nothing judgment. See JUDGMENT.
take-or-pay contract. See CONTRACT.
takeover. Ihe acquisition of ownership or control of a
corporation. - A takeover is typically accomplished by
a purchase ofshares or assets, a tender offer, or a merger.
[Cases: Securities Regulation C=>52.10-52.26.]
friendly takeover. A takeover that is approved by the
target corporation.
hostile takeover. A takeover that is resisted by the target
corporation. -Also termed unfriendly takeover.
[Cases: Corporations C=>31O(1).]
unfriendly takeover. See hostile takeover.
takeover agreement. See AGREEMENT.
takeover bid. An attempt by outsiders to wrest control
from the incumbent management ofa target corpora
tion. -Also termed tender offer. See TENDER OFFER.
takeover defense. A measure taken by a corporation to
discourage hostile takeover attempts. Often short
ened to defense. -Also termed shark repellent.
structural takeover defense. A legal mechanism
adopted by a corporation to thwart any future
takeover bid without having any financial or opera
tional effect on the target corporation.
transactional takeover defense. A financial or oper
ational transaction designed to make a present or
future takeover bid more difficult by raising a comtaking
bidder's profit. -Examples include issuing new shares
ofstock, acquiring expensive assets, and adopting a
poison-pill defense. See POISON PILL; PORCUPINE PRO
VISION.
takeover offer. See TENDER OFFER.
taker, n. (ISc) A person who acquires; esp., one who
receives property by will, by power ofappointment, or
by intestate succession. [Cases: Descent and Distribu
tion C=>20-41; Wills (:=:'492-5] 1.]
first taker. (18c) A person who receives an estate that is
subject to a remainder or executory devise.
presumptive taker. A person who would take under the
applicable provisions if the takers were to be finally
ascertained at the present moment. [Cases: Wills (;=
849.]
taker in default. (1911) A person who will receive
property not effectively appointed; esp., a person
designated by a donor to receive property under a
power of appointment ifthe donee fails to exercise
that power.
take the Fifth. To assert one's right against self-incrim
ination under the Fifth Amendment. - A common but
loose variant ofthe phrase is plead the Fifth; invoking
the right is not a plea. See RIGHT AGAINST SELF-INCRIM
INATION. [Cases: Criminal Law (:=)393(1).]
take the witness. You may now question the witness. _
This phrase is a lawyer's courtroom announcement that
ends one side's questioning and prompts the other side
to begin its questioning. Synonymous phrases are your
witness and pass the witness.
take up, vb. 1. To payor discharge (a note). [Cases: Bills
and Notes (;=428, 436.] 2. To retire (a negotiable
instrument); to discharge one's liability on (a negotiable
instrument), esp. the liability ofan indorser or acceptor.
3. To purchase (a note).
taking, n. (14c) 1. Criminal & tort law. The act ofseizing
an article, with or without removing it, but with an
implicit transfer of possession or control.
constructive taking. (1843) An act that does not equal
an actual appropriation of an article but that does
show an intention to convert it, as when a person
entrusted with the possession ofgoods starts using
them contrary to the owner's instructions.
2. Constitutional law. The government's actual or effec
tive acquisition of private property either by ousting
the owner or by destroying the property or severely
impairing its utility. -There is a taking of property
when government action directly interferes with or
substantially disturbs the owner's use and enjoyment
of the property. -Also termed constitutional taking.
See CONDEM:NATION (2); EMINENT DOMAr:N. [Cases:
Eminent Domain C=>2.]
actual taking. See physical taking.
de facto taking (di fak-toh). (1921) 1. Interference with
the use or value or marketability ofland in anticipa
tion of condemnation, depriving the owner of rea
pany's share price, paying off the bidder, or reducing a i sonable use and thereby triggering the obligation to
1592 taking a case from the jury
pay just compensation. 2. A taking in which an entity
clothed with eminent-domain power substantially
interferes with an owner's use, possession, or enjoy
ment ofproperty. [Cases: Eminent Domain (;::::>2.]
permanent taking. A government's taking ofproperty
with no intention to return it. -The property owner
is entitled to just compensation. [Cases: Eminent
Domain (;::::>69, 122.]
physical taking. A physical appropriation ofan owner's
property by an entity clothed with eminent-domain
authority. -Also termed actual taking. [Cases:
Eminent Domain
temporary taking. A government's taking of property
for a finite time. _ The property owner may be entitled
to compensation and damages for any harm done
to the property. [Cases: Eminent Domain 114,
143.]
taking a case from the jury. See directed verdict under
VERDICT.
Takings Clause. (1955) The Fifth Amendment provi
sion that prohibits the government from taking private
property for public use without fairly compensating
the owner. -Also termed Just Compensation Clause.
See EMINENT DOMAIN. [Cases: Eminent Domain
69,70.]
taking the Fifth. See TAKE THE FIFTH.
tales (tay-leez or taylz). [Latin, pI. of taUs "such," in the
phrase tales de circumstantibus "such of the bystand
ers"] (15c) 1. A supply ofadditional jurors, usu. drawn
from the bystanders at the courthouse, summoned to
fill a panel that has become deficient in number because
of juror challenges or exemptions. 2. A writ or order
summoning these jurors.
tales-juror. See TALESMAN.
talesman (taylz-man or tay-leez-man). Archaic. 1. A
person selected from among the bystanders in court
to serve as a juror when the original jury panel has
become deficient in number. [Cases: Jury (;::::>72.] 2.
VENIREMEMBER. -Also termed tales-juror.
talisman (tal-is-man), n. A charm, amulet, or other
physical thing supposedly capable ofworking wonders
<private property is not some sacred talisman that
can never be touched by the state it can be taken
for public use as long as the owner is justly compen
sated>. talismanic (tal-is-man-ik), adj.
talis qualis (tay-lis kway-lis). [Latin] Hist. Such as it is.
- A purchaser who accepts title as it stands at the time
ofsale takes the title taUs qualis.
tallage. 1. Hist. An arbitrary tax levied by the monarch
on towns and lands belonging to the crown. -Royal
tallages were abolished in the 14th century when Par
liament gained the power to approve or disapprove
the monarch's direct-taxation schemes. 2. Hist. A
levy demanded by a feudal lord from tenants in lieu
of the tenants' provision of goods and services. _ The
timing and amount ofthe levy varied according to local
custom, type of tenure, and caprice. 3. TOLLAGE. tal1y. 1. Hist. A stick cut into two parts and marked with
notches to show what was due between a debtor and
creditor.
'The tally. used as a receipt for money or chattels, was a
narrow wooden stick with notches of varying dimensions
to represent the amount received. After the notches had
been cut, the stick was split lengthwise into two unequal
pieces. The longer. which contained a stump or handle and
was called the 'stock,' was given to the person making the
payment, and the shorter, a flat strip called the 'foil: to
the other party. If the sum involved was disputed, the two
pieces could be fitted one to the other to see if they would
'tally.'" C.H.5. Fifoot, History and Sources of the Common
Law: Tort and Contmct 223 (1949).
"A thousand pounds was marked by cutting out the thick
ness of the palm of the hand, a hundred by the breadth of
the thumb, a score by the breadth of the little finger, one
pound by that of a swelling barley-corn .... The terminol
ogy has left a permanent imprint on our language. If you
lent money to the Bank of England, tallies were cut for the
amount: the Bank kept the foil and you received the stock;
you thus held 'Bank Stock' of the amount recorded upon it.
When the form of cheque was adopted, it was not indeed
called a foil, but the part retained by the payer is still the
counterfoil; and the word 'cheque' itself goes back ulti
mately to the same root as 'exchequer.'" Reginald l. Poole,
The Exchequer in the Twelfth Century 86-93 (1912).
"From early times tallies were used in the Exchequer and
this lasted until 1826. The burning of a large quantity of
old tallies led to the burning down of the old Houses of
Parliament." David M. Walker, The Oxford Companion to
Law 1207 (1980).
2. Anything used to record an account. 3. An account;
a score.
Talmud (tahl-muud or tal-mad), n. A work embody
ing the civil and canonical law ofthe Jewish people.
Talmudic (tahl-moo-dik or tal-), adj.
talweg. See THALWEG.
TAM. abbr. TECHNICAL ADVICE MEMORANDUM.
tame, adj. (Of an animal) domesticated; accustomed to
humans. See domestic animal under ANIMAL. [Cases:
Animals (;::::> 1.5(3).]
tam facti quam animi (tam fak-tI kwam an-a-mI).
[Latin] Hist. In deed as well as in intention.
tamper, vb. (l6c) 1. To meddle so as to alter (a thing);
esp., to make changes that are illegal, corrupting, or
perverting. 2. To interfere improperly; to meddle.
tampering, n. (17c) 1. The act ofaltering a thing; esp., the
act ofillegally altering a document or product, such as
written evidence or a consumer good. See Model Penal
Code 224.4, 241.8; 18 lJSCA 1365. 2. The act or
an instance of engaging in improper or underhanded
dealings, esp. in an attempt to influence. -Tampering
with a witness or jury is a criminal offense. See WITNESS
TAMPERING; OBSTRUCTION OF JUSTICE; EMBRACERY.
TAN. See tax-anticipation note under NOTE (1).
TANF. abbr. TEMPORARY ASSISTANCE TO NEEDY
FAMILIES.
tangible, adj. (16c) 1. Having or possessing physical
form; CORPOREAL. 2. Capable of being touched and
seen; perceptible to the touch; capable of being pos
1593
sessed or realized. 3. Capable of being understood by
the mind.
tangible asset. See ASSET.
tangible chattel paper. See CHATTEL PAPER.
tangible cost. See COST (1).
tangible damages. See actual damages under
DAMAGES.
tangible evidence. See EVIDENCE.
tangible medium ofexpression. Copyright. Any |
DAMAGES.
tangible evidence. See EVIDENCE.
tangible medium ofexpression. Copyright. Any material
form in which a work can be expressed and commu
nicated, either directly or through a machine. _ A
requirement for copyright is that the work be fixed in
a tangible medium of expression. [Cases: Copyrights
and Intellectual Property C-:::> 12(1).]
tangible personal property. See PROPERTY.
tangible-personal-property memorandum. A hand
written or signed document that lists items oftangible
personal property (such as jewelry, artwork, or furni
ture) and the persons who should receive the property
upon the owner's death. -This memorandum is a
separate document from the property owner's will, and
if referred to by the will, it is a valid testamentary dispo
sition. Unif. Probate Code 2-513. Abbr. TPPM.
tangible property. See PROPERTY.
tangible thing. See corporeal thing under THING.
tangible worth. See WORTH.
tanquam bonus vir (tan-kwam boh-nas veer). [Law
Latin] Scots law. As an honest or honorable man. - A
tenant was required to run his farm tanquam bonus
vir. Also spelled tamquam bonus vir.
tanquam dominus (tan-kwam dom-a-nels). [Law Latin]
Rist. As owner.
tanquam in libello (tan-kwam in lel-bel-oh). [Law Latin]
Hist. As ifalleged in the libel.
tanquam interim dominus (tan-kwam in-telr-im dom-el
nas). [Law Latin] Hist. As the temporary owner.
tanquam jure devoluto (tan-kwam joor-ee dee-vel-Ioo
toh). [Law Latin] Hist. As ifthe right had devolved. See
JUS DEVOLUTUM.
tanquam optimum maximum (tan-kwam op-tel-mam
mak-Sel-m;lm). [Law Latin] Hist. At its best and fullest.
The phrase was often used in the conveyance of an
estate.
tanquam quilibet (tan-kwam kWI-I;l-bet). [Law Latin]
Hist. Like any other person. -The phrase usu. referred
to certain transactions ofthe sovereign.
tantum et tale (tan-telm et tay-Iee). [Latin] Hist. So much
and ofsuch a kind.
"When a purchaser accepts a subject from the seller tantum
et tale as it stands in the person of the latter, he accepts it
with all its advantages and all its faults; he comes precisely
into the right and place of the seller: if the subject or the
right sold turns out to be more valuable than was thought,
the purchaser has the advantage; if otherwise, he bears
the loss." John Trayner, Trayner's Latin Maxims 595 (4th
ed. 1894). tariff
tapper, n. (1930) 1. A person who approaches another for
money; a beggar. 2. By extension, a thief.
tapping, n. See WIRETAPPING.
tarde venit. A return of a writ that was delivered to the
sheriff too late to be executed before the return day. See
return day under DAY.
tare (tair), n. 1. A deficiency in the weight or quantity of
merchandise resulting from including its container's
weight in the total. 2. An allowance or abatement of
a certain weight or quantity that a seller makes to the
buyer because ofthe container's weight. Cf. TRET.
target benefit plan. See EMPLOYEE BENEFIT PLAN.
target corporation. See CORPORATION.
target defendant. See DEFENDANT.
target offense. See object offense under OFFENSE (1).
target price. See PRICE.
target witness. See WITNESS.
tariff, n. 1. A schedule or system ofduties imposed by a
government on imported or exported goods . In the
United States, tariffs are imposed on imported goods
only. [Cases: Customs Duties C=>23-38.] 2. A duty
imposed on imported or exported goods under such
a system. See DUTY (4).
ad valorem tariff. A tariff set as a percentage of the
imported goods' value. _ This is the primary method
used to calculate customs duties.
antidumping tariff. A tariff equaling the difference
between the price at which the product is sold in the
exporti ng country and the price at which the importer
will sell the product in the importing country . These
tariffs are designed to prevent foreign businesses from
artificially lowering their prices and gaining unfair
advantages outside their home market. Also
termed antidumping duty. See ANTIDUMPING LAW.
[Cases: Customs Duties (::::;21.5.]
autonomous tariff. A tariff set by legislation rather
than by commercial treaty.
common external tariff. A tariff rate that members
of a customs union, common market, or economic
union uniformly apply to imports from nonmember
nations. Abbr. CXT. Also termed tariffexterior
commun .
discriminatory tariff. A tariff containing duties that
are applied unequally to different countries or manu
facturers.
preferential tariff. A tariff that favors the products
of one country over those of another. Cf. MOST
FAVORED-NATIO:'II CLAUSE.
protective tariff. A tariff deSigned primarily to give
domestic manufacturers economic protection
against price competition from abroad, rather than
to generate revenue.
retaliatory tariff. A tariff imposed to pressure another
country into removing its own tariffs or making trade
concessions.
1594 Tariff Act of 1930
revenue tariff. A tariff enacted solely or primarily to
raise revenue.
tariffexteriorcommun. [French1 See common external
tariff. Abbr. TEe.
3. A fee that a public utility or telecommunications
company may assess for its services. -The tariffs that
a provider may charge are limited by statute. [Cases:
Public Utilities (;:::) 119.1; Telecommunications
928.]4. A schedule listing the rates charged for services
provided by a public utility, the U.S. Postal Service, or
a business (esp. one that must by law file its rates with
a public agency). [Cases: Public Utilities (;:::::-119.1.]5. A
scale ofsentences and damages for crimes and injuries,
arranged by severity. -tariff, vb.
joint tariff. A rate schedule established by two or more
carriers covering shipments between places requiring
the use of facilities owned by those carriers. rCases:
Carriers (;:::::-30.]
TariffAct of 1930. See SMOOT-HAWLEY TARIFF ACT.
tarnishment. Trademarks. A form of dilution that
occurs when a trademark's unauthorized use degrades
the mark and diminishes its distinctive quality. Cf.
BLljRRING. [Cases: Trademarks
task order. See task-order contract under CONTRACT.
task-order contract. See CONTRACT.
tax, n. (14c) A charge, usu. monetary, imposed by the
government on persons, entities, transactions, or
property to yield public revenue. -Most broadly, the
term embraces all governmental impositions on the
person, property, privileges, occupations, and enjoy
ment of the people, and includes duties, imposts, and
excises. Although a tax is often thought of as being
pecuniary in nature, it is not necessarily payable in
money. [Cases: Internal Revenue (;:::::-3001; Taxation
(;::::)2001.)- tax, vb.
''Taxes are the enforced proportional contributions from
persons and property, levied by the state by virtue of its
sovereignty for the support of government and for all
public needs. This definition of taxes, often referred to
as 'Cooley's definition,' has been quoted and indorsed,
or approved, expressly or otherwise, by many different
courts. While this definition of taxes characterizes them as
'contributions: other definitions refer to them as 'imposts,'
'duty or impost,' 'charges,' 'burdens,' or 'exactions'; but
these variations in phraseology are of no practical impor
tance:' 1 Thomas M. Cooley, The Law of Taxation 1, at
61-63 (Clark A. Nichols ed., 4th ed. 1924).
accrued tax. (1872) A tax that has been incurred but
not yet paid or payable.
accumulated-earnings tax. (1957) A penalty tax
imposed on a corporation that has retained its
earnings in an effort to avoid the income-tax liability
arising once the earnings are distributed to sharehold
ers as dividends. -Also termed undistributed-earn
ings tax. [Cases: Internal Revenue (;:::::-3843-3845.J
additional tax. See stopgap tax.
admission tax. A tax imposed as part of the price of
being admitted to a particular event. [Cases: Public
Amusement and Entertainment ~50.1 ad valorem tax. (1810) A tax imposed proportionally
on the value ofsomething (esp. real property), rather
than on its quantity or some other measure. [Cases:
Taxation (:::::>2061.]
"[AJn ad valorem tax is a tax of a fixed proportion of the
value of the property with respect to which the tax is
assessed, and requires the intervention of assessors or
appraisers to estimate the value of such property before
the amount due from each taxpayer can be determined." 71
Am. Jur. 2d State and Local Taxation 20, at 355 (1973).
alternative minimum tax. (1972) A tax, often a flat
rate, potentially imposed on corporations and higher
income individuals to ensure that those taxpayers
do not avoid too much (or all) income-tax liability
by legitimately using exclusions, deductions, and
credits. Abbr. AMT. -Also termed minimum tax.
[Cases: Internal Revenue
amusement tax. A tax on a ticket to a concert, sporting
event, or the like. -The tax is usu. expressed as a per
centage ofthe ticket price. [Cases: Public Amusement
and Entertainment C~50.)
back tax. (oft. pl.) A tax that, though assessed for a
previous year or years, remains due and unpaid.
betterment tax. See BETTERMENT TAX.
capital-gains tax. (1930) A tax on income derived from
the sale of a capital asset. _ The federal income tax
on capital gains typically has a more favorable tax
rate -for example, 20% for an individual and 34%
for a corporation -than the otherwise applicable tax
rate on ordinary income. See CAPITAL GAIN. [Cases:
Internal Revenue (;:::::-3230.1-3260.J
capital-stock tax. 1. A tax on capital stock in the hands
of a stockholder. [Cases: Taxation (;:::::-2234.]2. A state
tax for conducting business in the corporate form,
usu. imposed on out-of-state corporations for the
privilege of doing business in the state. _ The tax is
usu. assessed as a percentage of the par or assigned
value of a corporation's capital stock.
capitation tax. See poll tax.
child's income tax. See kiddie tax.
classified tax. A tax system in which different rates are
assessed against different types oftaxed property.
collateral-inheritance tax. A tax levied on the transfer
of property by will or intestate succession to a person
other than the spouse, a parent, or a descendant of the
decedent. CL legacy tax. [Cases: Taxation (;:::::-3301.)
commutation tax. 1. A combination of two or more
taxes that is or can be substituted for something else
that could be imposed, such as a demand for other
taxes or the performance of personal services. -For
example, an excise or franchise tax may be combined
with a local tax in lieu of all other taxes related to the
subject matter. 2. Hist. A tax imposed on shipowners,
requiring them to post a bond or remit a payment per
foreign passenger. _ In the 19th-century, the tax was
used to discourage immigration and to raise revenue
to defray the costs ofsupporting indigent immigrants
who had remained in the U.S. 3. Hist. A 1784 tax
intended to reduce tea-smuggling and increase tax
revenue by cutting the tax on tea and raising the tax
on windows. To avoid payment of the tax, many
people boarded up their windows.
consumption tax. A tax imposed on sale of goods
or services to be consumed. [Cases: Taxation
3602.]
death tax. 1. See estate tax. 2. See inheritance tax.
delinquent tax. A tax not paid when due. [Cases:
Internal Revenue ~4827; Taxation (:::::>2760,3554,
3697.]
direct tax. (I8c) A tax that is imposed on property, as
distinguished from a tax on a right or privilege .
A direct tax is presumed to be borne by the person
upon whom it is assessed, and not "passed on" to
some other person. Ad valorem and property taxes
are direct taxes. [Cases: Internal Revenue ~3059-
3064; Taxation ~2061.]
documentary-stamp transfer tax. See stamp tax.
erroneous tax. 1. A tax levied without statutory author
ity. [Cases: Taxation C==>2062, 3404, 3607.J 2. A tax
on property not subject to taxation. 3. A tax levied by
an officer who lacks authority to levy the tax. -Also
termed illegal tax.
estate tax. (1928) A tax imposed on the transfer of
property by will or by intestate succession. Also
termed death tax; death duty. Cf. inheritance tax.
[Cases: Internal Revenue ~4145; Taxation
3301.]
estimated tax. (1926) A tax paid quarterly by a taxpayer
not subject to withholding (such as a |
imated tax. (1926) A tax paid quarterly by a taxpayer
not subject to withholding (such as a self-employed
person) based on either the previous year's tax liabil
ity or an estimate of the current year's tax liability.
[Cases: Internal Revenue C=.'4827, 4832, 5219.40;
Taxation (;::>3554.]
excess-profits tax. (1918) A tax levied on profits that
are beyond a business's normal profits . This type
oftax is usu. imposed only in times ofnational emer
gency (such as war) to discourage profiteering. [Cases:
Internal Revenue ~4130-4136.]
excise lieu property tax. A tax on the gross premiums
received and collected by deSignated classes ofinsur
ance companies. [Cases: Taxation ~2243.]
excise tax. See EXCISE.
export tax. A tax levied on merchandise and goods
shipped or to be shipped out of a country.
flat tax. (1952) A tax whose rate remains fixed regard
less of the amount ofthe tax base . Most sales taxes
are flat taxes. -Also termed proportional tax. Cf.
progressive tax; regressive tax. [Cases: Taxation
3672, 3673.]
floor tax. A tax imposed on distilled spirits stored in a
warehouse. [Cases: Internal Revenue ~4314.]
franchise tax. A tax imposed on the privilege of
carrying on a business (esp. as a corporation), usu. measured by the business's income. See FRANCHISE.
[Cases: Taxation C==>2233.]
general tax. (l6c) 1. A tax that returns no special
benefit to the taxpayer other than the support ofgov
ernmental programs that benefit all. [Cases: Taxation
C==>2001, 2010.] 2. A property tax or an ad valorem
tax that is imposed for no special purpose except to
produce public revenue. Cf. special assessment under
ASSESSMENT.
generation-skipping tax. (1977) A tax on a property
transfer that skips a generation . The tax limits the
use of generation-skipping techniques as a means of
avoiding estate taxes. [Cases: Internal Revenue
4220.]
generation-skipping transfer tax. (1984) A gift or estate
tax imposed on a generation-skipping transfer or a
generation-skipping trust. IRe (26 USCA) 2601
2663. Sometimes shortened to generation-skipping
tax; transfer tax. See DIRECT SKIP; GENERATION
SKIPPING TRANSFER; generation-skipping trust under
TRUST; TAXABLE DISTRIBUTION. [Cases: Internal
Revenue C:='4220-4228.]
gift tax. (1925) A tax imposed when property is volun
tarily and gratuitously transterred . Under federal
law, the gift tax is imposed on the donor, but some
states tax the donee. [Cases: Internal Revenue C==>
4200; Taxation ~3381.1
graduated tax. l. A tax employing a rate schedule with
higher marginal rates for larger taxable bases (income,
property, transfer, etc.) 2. See progressive tax.
gross-income tax. (1916) A tax on gross income,
possibly after the deduction for costs of goods sold,
rather than on net profits; an income tax without
allowance for expenses or deductions. See gross
income under INCOME. [Cases: Internal Revenue C==>
3110; Taxation ~3447.]
gross-receipts tax. A tax on a business's gross receipts,
without a deduction for costs ofgoods sold, or allow
ance for expenses or deductions. See GROSS RECEIPTS.
[Cases: Taxation C:='3604.]
head tax. 1. See poll tax. 2. HEAD MONEY (3).
hidden tax. (1935) A tax that is paid, often unknow
ingly, by someone other than the person or entity on
whom it is levied; esp., a tax imposed on a manu
facturer or seller (such as a gasoline producer) who
passes it on to consumers in the form ofhigher sales
prices.
highway tax. A tax raised to pay for the construc
tion, repair, and maintenance of highways. [Cases:
Highways ~123.]
holding-company tax. A federal tax imposed on undis
tributed personal-holding-company income after
allOWing deductions for such things as dividends
paid. IRC (26 USCA) 545. -Also termed personal
holding-company tax. [Cases: Internal Revenue
3850.1-3858.]
illegal tax. 1. A tax that violates the law, esp. the con
stitution. For an example, see poll tax. 2. See erro
neous tax.
income tax. (18c) A tax on an individual's or entity's
net income . The federal income tax -set forth in
the Internal Revenue Code is the federal govern
ment's primary source of revenue, and most states
also have income taxes. Cf. property tax; EXCISE.
[Cases: Internal Revenue C='3065-4122; Taxation
(;::::>3401.]
indirect tax. (18c) A tax on a right or privilege, such as
an occupation tax or franchise tax . An indirect tax
is often presumed to be partly or wholly passed on
from the nominal taxpayer to another person. [Cases:
Licenses
inheritance tax. (I8c) 1. A tax imposed on a person who
inherits property from another (unlike an estate tax,
which is imposed on the decedent's estate) . 1here
is no federal inheritance tax, but some states have an
inheritance tax (though it is creditable or deductible
under the federal estate tax). Also termed succes
sion tax; death tax. Cf. estate tax. [Cases: Taxation
G::::3301.] 2. Loosely, an estate tax.
in lieu tax. A tax imposed as a substitute for another.
[Cases: Taxation ('::)2295.]
intangible tax. A state tax imposed on the privilege
of owning, transferring, deviSing, or otherwise
dealing with intangible property. [Cases: Taxation
(;::::>2061.]
interest-equalization tax. A tax imposed on a U.S. citi
zen's acquisition of stock issued by a foreign issuer
or a debt obligation of a foreign obligor, but only if
the obligation did not mature within a year. 'Ibis
tax was repealed in the mid-1970s. IRC (26 USCA)
4911.
kiddie tax. (l8c) Slang. A federal tax imposed on a
child's unearned income (above an exempt amount)
at the parents' tax rate if the parents' rate is higher
and if the child is under 18 years old. -Also termed
child's income tax.
land tax. See property tax.
legacy tax. A tax on a legacy, often with the provision
that the rate increases as the relationship ofthe legatee
becomes more remote from the testator . In English
law, this tax was known as a legacy duty; it was abol
ished in 1949. Cf. collateral-inheritance tax. [Cases:
Taxation (;::::>3301.]
luxury tax. (1925) An excise tax imposed on high
priced items that are not deemed necessities (such as
cars costing more than a specified amount). Cf. sin
tax. [Cases: Taxation (;::::>3602.]
minimum tax. See alternative minimum tax.
nanny tax. (1993) Slang. A federal social-security tax
imposed on the employer of a domestic employee if
the employer pays that employee more than a spec
ified amount in total wages in a year. The term,
which is not a technical legal phrase, was popularized in the mid-1990s, when several ofPresident Clinton's
nominees were found not to have paid the social
security tax for their nannies.
occupation tax. (1879) An excise tax imposed for the
privilege of carrying on a business, trade, or profes
sion. For example, many states require lawyers to
pay an occupation tax. Also termed occupational
tax. [Cases: Licenses (;::::, 1.]
payroll tax. (1936) 1. A tax payable by an employer
based on its payroll (such as a SOcial-security tax or
an unemployment tax). [Cases: Internal Revenue
C~)4849; Taxation ('::::::3560.] 2. A tax collected by
an employer from its employees' gross pay (such as
an income tax or a social-security tax). See withhold
ing tax.
per capita tax. See poll tax.
personal-holding-company tax. See holding-company
tax.
personal-property tax. (1863) A tax on personal
property (such as jewelry or household furniture)
levied by a state or local government. [Cases: Taxation
<:-'-:>2176.]
pickup tax. Slang. A state death tax levied in an amount
equal to the federal death-tax credit. Also termed
sponge tax; slack tax. [Cases: Taxation ('::::::>3301.]
poll tax. (l7c) A fixed tax levied on each person within
a jurisdiction . The 24th Amendment prohibits the
federal and state governments from imposing poll
taxes as a condition for voting. Also termed per
capita tax; capitation tax; capitation; head tax. [Cases:
Elections (;::::>83; Taxation (;::::>2050.]
premium tax. A state tax paid by an insurer on
premiums paid by the insured. [Cases: Taxation
2243.]
privilege tax. A tax on the privilege of carrying on a
business or occupation for which a license or fran
chise is required. [Cases: Licenses
progressive tax. (1886) 1. A tax structured so that the
effective tax rate increases more than proportion
ately as the tax base increases, or so that an exemp
tion remains flat or diminishes . With this type of
tax, the percentage ofincome paid in taxes increases
as the taxpayer's income increases. Most income taxes
are progressive, so that higher incomes are taxed at
a higher rate. But a tax can be progressive without
using graduated rates. Also termed graduated tax.
Cf. regressive tax;jlat tax. Internal Revenue
C~3545-3552; Taxation 2. See graduated
tax.
property tax. (1808) A tax levied on the owner of
property (esp. real property), usu. based on the
property's value . Local governments often impose
property taxes to finance school districts, municipal
projects, and the like. Also termed (specif.) land
tax. Cf. income tax; EXCISE. [Cases: Taxation
2170-2216.]
proportional tax. Seeflat tax.
regressive tax. (1893) A tax structured so that the effec
tive tax rate decreases as the tax base increases .
With this type oftax, the percentage of income paid
in taxes decreases as the taxpayer's income increases.
A flat tax (such as the typical sales tax) is usu. consid
ered regressive -despite its constant rate because
it is more burdensome for low-income taxpayers than
high-income taxpayers. A growing exemption also
produces a regressive tax effect. C[ progressive tax;
flat tax. [Cases: Internal Revenue (;:::::>3545-3552;
Taxation (;:::::>3526.]
repressive tax. See sin tax.
sales tax. (1921) A tax imposed on the sale of goods
and services, usu. measured as a percentage of their
price. -Also termed retail sales tax. See flat tax.
[Cases: Taxation (;:::::>3602.]
''While the term 'sales tax' encompasses a large variety of
levies. the term often refers to the 'retail sales tax,' where
the tax is separately stated and collected on a transaction
by-transaction basis from the consumer; although the
economic burden of the sales tax falls upon the consumer,
the seller has the statutory duty to collect the tax for the
taxing jurisdiction." 68 Am. Jur. 2d Sales and Use Tax 1,
at 11 (1993).
self-employment tax. The Social-Security and Medicare
tax imposed on the net earnings of a self-employed
person. [Cases: Internal Revenue (;:::::>4381.]
service-occupation tax. A tax imposed on persons who
sell services, usu. computed as a percentage of net cost
ofthe tangible personal property (e.g., materials and
goods) transferred as an incident to the sale. [Cases:
Licenses C= 1; Taxation (;::::::>3658.]
severance tax. A tax imposed on the value of oil, gas,
timber, or other natural resources extracted from
the earth. [Cases: Logs and Logging Mines
and Minerals (;::::::>87.]
Sinking-fund tax. A tax to be applied to the repayment
of a public loan.
sin tax. (I97l) An excise tax imposed on goods or activ
ities that are considered harmful or immoral (such
as cigarettes, liquor, or gambling). -Also termed
repreSSive tax. Cf. luxury tax.
slack tax. See pickup tax.
special tax. (ISc) 1. A tax levied for a unique purpose.
2. A tax (such as an inheritance tax) that is levied in
addition to a general tax. [Cases: Taxation
specific tax. (ISc) A tax imposed as a fixed sum on each
article or item of property of a given class or kind
without regard to its value.
sponge tax. See pickup tax.
stamp tax. (ISc) A tax imposed by requiring the
purchase of a revenue stamp that must be affixed to
a legal document (such as a deed or note) before the
document can be recorded. Also termed documen
tary-stamp transfer tax. [Cases: Internal |
or note) before the
document can be recorded. Also termed documen
tary-stamp transfer tax. [Cases: Internal Revenue
4390-4409.J
state tax. (18c) 1. A tax usu. in the form ofa sales or
income tax -earmarked for state, rather than federal or municipal, purposes. [Cases: Taxation (;:::::>2001.]
2. A tax levied under a state law.
stock-transfer tax. A tax levied by the federal govern
ment and by some states on the transfer or sale of
shares of stock. -Often shortened to transfer tax.
[Cases: Internal Revenue (;:::::>4404; Taxation
2218.]
"Some state statutes impose special taxes, usually in the
form of a stamp tax, upon sales and agreements for sale
and other transfers of stock in corporations. Such a tax
is in the nature of an excise tax on the transfer. Taxes on
the issuance and transfer of corporate stock, commonly
known as 'stock transfer taxes' and payable by means of
stamps, are constitutional, as within the power of state
governments." 71 Am. Jur. 2d State and Local Taxation
643, at 896 (1973).
stopgap tax. A tax, usu. temporary, levied during the
term of a budget to cover an unexpected deficit.
Also termed additional tax.
succession tax. See inheritance tax (1).
surtax. (1881) An additional tax imposed on some
thing being taxed or on the primary tax itself. [Cases:
Taxation (;:::::>3527.]
tonnage tax. See tonnage duty under DUTY (4).
transfer tax. (1890) 1. A tax imposed on the transfer
of property, esp. by will, inheritance, or gift. [Cases:
Internal Revenue (;::::::>4220-4228; Taxation (;:::::>22l8,
3301, 3381.] 2. See stock-transfer tax. 3. See genera
tion-skipping transfer tax.
undistributed-earnings tax. See accumulated-earnings
tax.
unemployment tax. (1937) A tax imposed on an
employer by state or federal law to cover the cost
of unemployment insurance . The Federal Unem
ployment Tax Act (FUTA) provides for a tax based
on a percentage of employee earnings but allows a
credit for amounts paid in state unemployment taxes.
[Cases: Internal Revenue (;:::::>4305.]
unified transfer tax. The federal transfer tax imposed
equally on property transferred during life or at death.
_ Until 1977, gift-tax rates were lower than estate
taxes. -Also termed unified estate-and-gift tax.
unitary tax. A tax of income earned locally by a
business that transacts business through an affiliated
company outside the state or country. See UNITARY
BUSINESS. [Cases: Taxation C=3477.]
unrelated-business-income tax. (1962) A tax levied on
a not-for-profit organization's taxable income, such
as advertiSing revenue from a publication. [Cases:
Internal Revenue (;:::::>4068; Taxation (;:::::>3488.]
use tax. A tax imposed on the use of certain goods
that are bought outside the taxing authority's juris
diction. -Use taxes are deSigned to discourage the
purchase ofproducts that are not subject to the sales
tax. [Cases: Taxation (;::::::>3603.]
value-added tax. (1935) A tax assessed at each step in
the production of a commodity, based on the value
added at each step by the difFerence between the
commodity's production cost and its selling price.
A value-added tax -which is levied in several
European countries effectively acts as a sales tax
on the ultimate consumer. -Abbr. VAT. [Cases:
Taxation C=;3602.]
windfall-profits tax. (1973) A tax imposed on a business
or industry as a result ofa sudden increase in profits.
An example is the tax imposed on oil companies in
1980 for profits resulting from the Arab oil embargo
of the 19705. [Cases: Internal Revenue C=>4338.]
window tax. Hist. English law. A tax imposed on a house
containing a certain number of windows (uau. more
than six). Itwas established under the Taxation Act
of 1695 and replaced with a tax on inhabited houses
established under the House Tax of 1851. See HODSE
DUTY.
withholding tax. (1927) A portion of income tax
that is subtracted from salary, wages, dividends, or
other income before the earner receives payment.
The most common example is the income tax and
SOcial-security tax withheld by an employer from an
employee's pay. [Cases: Internal Revenue ~'='4849;
Taxation C=> 3560.]
taxable, adj. (16c) 1. Subject to taxation <interest earned
on a checking account is taxable income>. [Cases:
Internal Revenue 10: Taxation e:-::3446-3477.]
2. (Oflegal costs or fees) assessable <expert-witness fees
are not taxable court costs>. [Cases: Costs C:=-146-194;
Federal Civil Procedure C=>2742.]
taxable cost. See COST (3).
taxable distribution. (1927) A generation-skipping
transfer from a trust to the beneficiary (Le., the skip
person) that is neither a direct skip nor a taxable ter
mination. See GENERATION-SKIPPING TRANSFER;
generation-skipping tramfer tax under TAX; genera
tion-skipping trust under TRUST; SKIP PERSON. [Cases:
Internal Revenue C:::04224.j
taxable estate. See ESTATE (3).
taxable gift. See GIFT.
taxable income. See INCOME.
taxable termination. (1988) A taxable event that occurs
when (1) an interest in a generation-skipping trust
property terminates (as on the death ofa skip person's
parent who possessed the interest), (2) no interest in the
trust is held by a nonskip person, and (3) a distribution
may be made to a skip person . Before the creation
of taxable terminations in 1976, a taxpayer could
create a trust that paid income to a child for life, then
to that child's child for lite, and so on without incur
ring an estate or gift tax liability at the death of each
generation's beneficiary. See GENERATION-SKIPPING
TRANSFER; generation-skipping transfer tax under TAX;
generation-skipping trust under TRUST; SKIP PERSON.
[Cases: Internal Revenue C=>4224.J
taxable year. See tax year under YEAR.
tax accounting. lhe accounting rules and methods used
in determining a taxpayer's liability. tax-anticipation bill. A short-term obligation issued by
the U.S. Treasury to meet the cash-flow needs of the
government . Corporations can tender these bills at
par value to make quarterly tax payments. Abbr.
TAB.
tax-anticipation note. See NOTE (1).
tax-anticipation warrant. See WARRANT (2).
tax-apportionment clause. A testamentary provision
directing how inheritance and estate taxes should be
paid. [Cases: Internal Revenue C=>4824; Taxation
3346.]
tax assessment. See ASSESSMENT (3).
tax assessor. See ASSESSOR (1).
taxation. (14c) 1. Ihe imposition or assessment of a
tax; the means by which the state obtains the revenue
required for its activities. [Cases: Internal Revenue C=>
300l-3007; Taxation C;;;-2001.]
double taxation. (18c) 1. The imposition of two taxes
on the same property during the same period and
for the same taxing purpose. [Cases: Taxation
2150-2156,3435.] 2. The imposition of two taxes on
one corporate profit; esp., the structure of taxation
employed by Subchapter C of the Internal Revenue
Code, under which corporate profits are taxed twice,
once to the corporation when earned and once to the
shareholders when the earnings are distributed as
dividends. 3. Int'llaw. The imposition ofcomparable
taxes in two or more states on the same taxpayer for
the same subject matter or identical goods. -Also
termed duplicate taxation.
duplicate taxation. See double taxation.
equal and uniform taxation. A tax system in which
no person or class of persons in the taxing district
whether it be a state, city, or county is taxed at
a different rate from others in the same district on
the same value or thing. [Cases: Taxation C=>2134,
3428,3627.]
pass-through taxation. (1998) The taxation of an
entity's owners for the entity's income without taxing
the entity itself . Partnerships and S corporations
are taxed under this method. So are limited liability
companies and limited liability partnerships unless
they elect to be taxed as corporations by "checking
the box" on their income tax returns. the election is
made on Form 8832 (Entity Classification Election).
See Treas. Reg. 301.7701-(3)(b)(1). -Also termed
conduit taxation. [Cases: Internal Revenue C=>3896,
3920-3924.]
2. TAXATION OF COSTS.
taxation ofcosts. The process offixing the amount of
litigation-related expenses that a prevailing party is
entitled to be awarded. -Sometimes shortened to
taxation. [Cases: Costs C=> 195; Federal Civil Proce
dure C=>2742.l.J
tax audit. See Al:DIT.
tax avoidance. (1927) The act of taking advantage of
legally available tax-planning opportunities in order
to minimize one's tax liability. Cf. TAX EVASION. [Cases:
Internal Revenue ~3056-3058; Taxation ~2220.1
tax base. The total property, income, or wealth subject to
taxation in a given jurisdiction; the aggregate value of
the property being taxed by a particular tax. Cf. BASIS
(2).
tax basis. See BASIS (2).
tax-benefit doctrine. See TAX-BENEFIT RULE.
tax-benefit rule. (1942) The principle that if a taxpayer
recovers a loss or expense that was deducted in a
previous year, the recovery must be included in the
current year's gross income to the extent that it was pre
viously deducted. -Also termed tax-benefit doctrine.
[Cases: Internal Revenue~3089, 3138.]
tax bracket. (1923) A categorized level ofincome subject
to a particular tax rate under federal or state law <28%
tax bracket>. [Cases: Internal Revenue ~3545-3552;
Taxation ~3525-3529.]
tax certificate. An instrument issued to the buyer of
property at a tax sale, certifying the sale and entitling
the buyer to a tax deed and possession of the property
upon the expiration of the redemption period. -Ifthe
property is redeemed, the tax certificate is voided. See
REDEMPTION PERIOD; tax sale under SALE. Cf. tax deed
under DEED. [Cases: Taxation ~2986, 3064.]
tax court. (1841) 1. TAX COURT, U.S. 2. In some states, a
court that hears appeals in nonfederal tax cases and
can modify or change any valuation, assessment, clas
sification, tax, or final order that is appealed. [Cases:
Taxation ~2691, 3548, 3695.]
Tax Court, U.S. A federal court that hears appeals by
taxpayers from adverse IRS decisions about tax defi
ciencies. _ The Tax Court was created in 1942, replac
ing the Board of Tax Appeals. -Abbr. TC. [Cases:
Internal Revenue ~4645-4655.]
tax credit. (1946) An amount subtracted directly from
one's total tax liability, dollar for dollar, as opposed to
a deduction from gross income. - Often shortened to
credit. ct DEDUCTION (2). [Cases: Internal Revenue~
3520-3537; Taxation (;;)3517.]
child-and dependent-care tax credit. (2001) A tax
credit available to a person who is employed full-time
and who maintains a household for a dependent child
or a disabled spouse or dependent. [Cases: Internal
Revenue ~3520, 3534; Taxation ~3517.1
earned-income credit. (1927) A refundable federal tax
credit on the earned income of a low-income worker
with dependent children. _ The credit is paid to the
taxpayer even if it exceeds the total tax liability. See
IRC (26 USCA) 32. -Abbr. Ere. [Cases: Internal
Revenue ~3532.]
foreign tax credit. (I928) A tax credit against U.S.
income taxes for a taxpayer who earns income
overseas and has paid foreign taxes on that income. See FOREIGN-EARNED-INCOME EXCLUSION. [Cases:
Internal Revenue ~4098.]
"Since direct foreign investments and business operations
of United States persons often attract foreign income taxes
along with the baseline U.S. tax, the specter of double
taxation is bound to haunt the pursuit of foreign income.
The principal accommodation of the U.S. tax system to
the possibility of source-based taxation by other countries
is the foreign tax credit. From a simple idea a dollar
for-dollar reduction of U.S. tax for income taxes paid to
foreign countries the foreign tax credit has evolved into
an elaborate statutory structure capable of |
S. tax for income taxes paid to
foreign countries the foreign tax credit has evolved into
an elaborate statutory structure capable of engulfing an
entire professional career." Joseph Isenbergh, International
Taxation 14 (2000).
investment tax credit. (1965) A tax credit intended to
stimulate business investment in capital goods by
allowing a percentage of the purchase price as a credit
against the taxpayer's income taxes. -The Tax Reform
Act of 1986 generally repealed this credit retroactively
for most property placed in service after January 1,
1986. -Abbr. ITe. [Cases: Internal Revenue (;:=>
3523; Taxation ~3517.1
unified credit. See unified estate-and-giJt tax credit.
unified estate-and-gift tax credit. (1988) A tax credit
applied against the federal unified transfer tax. IRC
(26 USCA) 2001(c)(2). -Often shortened to unified
credit. Also termed applicable exclusion credit.
[Cases: Internal Revenue ~4182.30.1
tax deduction. See DEDUCTION (2).
tax deed. See DEED.
tax-deferred, adj. (1948) Not taxable until a future date
or event <a tax-deferred retirement plan>. [Cases:
Internal Revenue ~3575-3615.]
tax-deferred account. See ACCOUNT.
tax-deferred annuity. See 403(b) plan under EMPLOYEE
BENEFIT PLAN.
tax deficiency. See DEFICIENCY (2).
tax-deficiency notice. See NLNETY-DAY LETTER.
tax denier. See TAX PROTESTER.
tax evasion. (1922) Ihe willful attempt to defeat or cir
cumvent the tax law in order to illegally reduce one's
tax liability. -Tax evasion is punishable by both civil
and criminal penalties. -Also termed tax fraud. Cf.
TAX AVOIDANCE. [Cases: Internal Revenue ~5263;
Taxation ~3232, 3563, 3712.]
tax:-exernpt, adj. (1923) 1. By law not subject to taxation
<a tax-exempt charity>. [Cases: Internal Revenue
4045-4071; Taxation (;:=2309-2356, 3518, 3664.] 2.
Bearing interest that is free from income tax <tax
exempt municipal bonds>. Also termed tax-free.
tax-exempt bond. See BOND (3).
tax ferret. A private person engaged in the business of
searching for taxable property that has somehow not
been taxed. [Cases: Internal Revenue <::='4442.]
tax foreclosure. See FORECLOSURE.
tax fraud. See TAX EVASION.
tax-free, adj. See TAX-EXEMPT.
1600 tax-free exchange
tax-free exchange. (1927) A transfer of property for
which the tax law specifically defers (or possibly
exempts) income-tax consequences. -For example, a
transfer ofproperty to a controlled corporation under
IRC (26 USCA) 351(a) and a like-kind exchange under
IRC (26 USCA) 1031(a). Also termed 1031 exchange.
Cf. 1031 EXCHANGE. [Cases: Internal Revenue ~3184;
Taxation (~3466.]
tax haven. (l8c) A jurisdiction, esp. a country, that
imposes little or no tax on the profits from transactions
carried on there or on persons resident there.
"Among the reasons for this complexity [in international
taxation] is the elusive nature of tax havens. A tax haven is
not always immediately obvious. What makes a particular
environment a tax haven is not invariably a low rate of
tax, but relations with other tax regimes that permit the
ultimate deflection of income to a lowtax environment
with which the income may have little indigenous connec
tion." Joseph Isenbergh, International Taxation 16 (2000).
taxhome. (18c) A taxpayer's principal business location,
post, or station. _ Travel expenses are tax-deductible
only if the taxpayer is traveling away from home.
[Cases: Internal Revenue ~3343.]
tax-identification number. A nine-digit tracking
number assigned by the Internal Revenue Service
to the tax accounts of businesses and also to entities
or individuals who are required to file business tax
returns. -Abbr. TIN. Often shortened to tax i.d.
Also termed employer-identification number (EIN);fed
eral-employer-identification number (FEIN).
tax incentive. (l8c) A governmental enticement, through
a tax benefit, to engage in a particular activity, such as
the contribution of money or property to a qualified
charity.
tax-increment financing. A technique used by a munici
pality to finance commercial developments usu. involv
ing issuing bonds to finance land acquisition and other
up-front costs, and then using the additional property
taxes generated from the new development to service
the debt. Abbr. TIP. [Cases: Municipal Corporations
(;=953.]
taxing district. See DISTRICT.
taxing power. See POWER (3).
tax injunction act. A federal law prohibiting a federal
court from interfering with the assessment or collec
tion of any state tax where the state affords a plain,
speedy, and efficient remedy in its own courts. 28 USCA
1341. [Cases: Federal Courts ~27.]
tax law. (l8c) 1. INTERNAL REVENUE CODE. 2. The statu
tory, regulatory, constitutional, and common -law rules
that constitute the law applicable to taxation. 3. The
area oflegal study dealing with taxation.
tax lease. See LEASE.
tax levy. See LEVY (1).
tax liability. (1932) The amount that a taxpayer legally
owes after calculating the applicable tax; the amount
of unpaid taxes.
tax lien. See LIEN. tax list. An official schedule listing the taxable items
within a jurisdiction; ROLL (2).
tax loophole. See LOOPHOLE.
tax-loss carryback. See CARRYBACK.
tax-loss carryforward. See CARRYOVER.
tax-loss carryover. See CARRYOVER.
tax negligence. See NEGLIGENCE.
tax-option corporation. See S corporation under COR
PORATION.
taxpayer. One who pays or is subject to a tax. Cf. TAX
PROTESTER. [Cases: Internal Revenue ('':::)3560;
Taxation 3480-3495.J
taxpayers' bill of rights. (1988) Federal legislation
granting taxpayers specific rights when dealing with
the Internal Revenue Service, such as the right to have
representation and the right to receive written notice
of a levy 30 days before enforcement.
taxpayers' lists. Written exhibits required of taxpayers
in some taxing districts, listing all property owned by
them and subject to taxation, used as a basis for assess
ment and valuation. Cf. ROLL (2). [Cases: Taxation
2462, 2493.]
taxpayer-standing doctrine. (1977) Constitutional law.
The principle that a taxpayer has no standing to sue the
government for allegedly misspending the public's tax
money unless the taxpayer can demonstrate a personal
stake and show some direct injury. [Cases: Constitu
tional Law ~683;Municipal Corporations
tax-preference items. (1971) Certain items that, even
though lawfully deducted in arriving at taxable income
for regular tax purposes, must be considered in cal
culating a taxpayer's alternative minimum tax. See
alternative minimum tax under TAX. [Cases: Internal
Revenue (';:~)3550.]
tax protest. A taxpayer's formal, usu. written, state
ment that he or she does not acknowledge a legal or
just basis for the tax or a duty to pay it. _ The purpose
of the protest is to make clear that any payment is
made "under protest" and to avoid waiving the right to
recover the money paid ifthe tax is later invalidated.
tax protester. 1. One who files a tax protest. 2. A person
who opposes tax laws and seeks or employs ways, often
illegal, to avoid the laws' effects; esp., a person who
refuses to pay a tax on grounds that the government has
no authority to levy the tax. -Sometimes spelled tax
protestor. Also termed tax denier. Cf. TAXPAYER.
illegal tax protester. Hist. The name once used by
the IRS to deSignate a person believed to have used
illegal means to avoid or reduce tax liability. -In the
Internal Revenue Service Restructuring and Reform
Act of 1998, Congress forbade the IRS to continue
using the labeL Today the term nonfiler is typically
used instead.
tax-protest scheme. A plan deSigned to avoid or express
dissatisfaction with tax laws, usu. by unlawful means.
The most common schemes involve illegally evading or
1601
reducing tax liabilities, or interfering with the admin
istration of the tax laws.
tax rate. (1876) A mathematical figure for calculating
a tax, usu. expressed as a percentage. [Cases: Internal
Revenue (>:;3545-3552; Taxation (;::;3525-3529, 3672,
3673.]
average tax rate. (1895) A taxpayer's tax liability
divided by the amount of taxable income. Also
called effective tax rate.
marginal tax rate. (1939) In a tax scheme, the rate
applicable to the last dollar of income earned by the
taxpayer. This concept is useful in calculating the
tax effect of receiving additional income or claiming
additional deductions. See TAX BRACKET.
tax-rate schedule. (1951) A schedule used to determine
the tax on a given level oftaxable income and based on
a taxpayer's status (for example, married filing a joint
income-tax return). Also termed tax table. [Cases:
Internal Revenue (>:;3545-3552; Taxation (;::; 3525
3529.]
tax rebate. See TAX REFUND.
tax redemption. See REDEMPTION.
tax refund. Money that a taxpayer overpaid and is thus
returned by the taxing authority. -Also termed tax
rebate. [Cases: Internal Revenue (;::-)4950; Taxation C=>
2773,3555,3699.]
tax return. (1870) An income-tax form on which a
person or entity reports income, deductions, and
exemptions, and on which tax liability is calculated.
Often shortened to return. -Also termed income-tax
return. [Cases: Internal Revenue (;::;:)4470; Taxation
(;::::' 3539, 3688.]
amended return. (1861) A return filed after the original
return, usu. to correct an error in the original.
[Cases: Internal Revenue (>;/4479; Taxation
3539,3688.]
consolidated return. A return that reflects combined
financial information for a group of affiliated cor
porations. [Cases: Internal Revenue (;::::'3865-3880;
Taxation (>~~3541.]
false return. See FALSE RETURN (2).
information return. (1920) A return, such as a W-2,
filed by an entity to report some economic informa
tion related to, but other than, tax liability.
joint return. (1930) A return filed together by spouses.
A joint return can be filed even if only one spouse
had income, but each spouse is usu. individually liable
for the tax payment. [Cases: Internal Revenue (;::::'
4481; Taxation (;::::' 3540.]
separate return. (1913) A return filed by each spouse
separately, showing income and liability. Unlike
with a joint return, each spouse is individually liable
only for taxes due on the separate return. [Cases:
Internal Revenue Cc:~'4481; Taxation (;::::'3540.J
tax-return privilege. See PRIVILEGE (3).
tax roll. See ROLL (2). teach
tax sale. See SALE.
tax shelter, n. (1952) A financial operation or investment
strategy (such as a partnership or real-estate invest
ment trust) that is created primarily for the purpose of
reducing or deferring income-tax payments. _ The Tax
Reform Act of 1986 -by restricting the deductibility
of passive losses -sharply limited the effectiveness
of tax shelters. Often shortened to shelter. tax
sheltered, adj.
tax-sheltered annuity. See 403(b) plan under EMPLOYEE
BENEFIT PLAN.
tax situs (SI-t<lS). A state or other jurisdiction that has a
substantial connection with assets that are subject to
taxation. [Cases: Taxation (;::::'2211.]
tax-straddle rule. A rule preventing undue deferral of
tax on income or conversion of ordinary income or
short-term capital gain into long-term capital gain
by disallowing the premature deduction of a loss on
sale or disposition of one leg of a straddle position
while retaining the other, offsetting leg or position. _
For example, in a straddle position a promise to sell
may be offset by a promise to buy, such as in a futures
contract. This practice has been greatly restricted by
the requirement that gains and losses on commodities
transactions must be reported based on their value at
year end. IRC (26 USCA) 165(c)(2). See STRADDLE.
[Cases: Internal Revenue C-'='3397.]
tax table. See TAX-RATE SCHEDULE.
tax title. See TITLE (2).
tax warrant. See WARRANT (1).
tax write-off. (1955) |
ITLE (2).
tax warrant. See WARRANT (1).
tax write-off. (1955) A deduction of depreciation, loss, or
expense from taxable income. [Cases: Internal Revenue
(;::::'3310-3442,3470-3505; Taxation <r'-:::)3501-3516.]
tax year. See YEAR.
TBe. abbr. Trial before the court. See bench trial under
TRIAL.
T-biIl. abbr. TREASURY BILL.
T-bond. abbr. TREASURY BOND.
T.e. abbr. See TAX COURT, u.s.
T.C.M. See T.C. MEMO.
T.e. memo. abbr. A memorandum decision of the U.S.
Tax Court. Also abbreviated T.C.M.
TDA. abbr. UNITED STATES TRADE AND DEVELOPMENT
AGENCY.
teach, vb. Patents. 1. (Of a patent specification) to
instruct (a person of ordinary skill in the art how to
make and use an invention). [Cases: Patents 2.
(Of a prior-art reference) to anticipate (the invention
being examined) by discussing, describing, or analyz
ing the invention's essential elements or technology.
In this sense, prior art that discourages an inventor
from pursuing an invention "teaches away from" that
invention. A teaching raises a statutory bar to an inven
tion's patentability. [Cases: Patents (>::-'65.]
teamwork. (1828) Work done by a team; esp., work by a
team ofanimals as a substantial part ofone's business,
such as farming, express carrying, freight hauling, or
transporting material. In some jurisdictions, animals
(such as horses) that work in teams are exempt from
execution 011 a civil judgment.
tear-me-open license. See shrink-wrap license under
LICENSE.
TEAS. abbr. TRADEMARK ELECTRONIC APPLICATION
SYSTEM.
TEe. abbr. Tariff exterior commun. See common external
tarijfunder TARIFF (2).
TECA (tee-k<l). abbr. TEMPORARY EMERGENCY COURT
OF APPEALS.
technical adjustment. A brief change in the general
upward or downward trend of stock-market prices,
such as a short rally during a bear market.
Technical Advice Memorandum. (1967) A publica
tion issued by the national office of the IRS, usu. at a
taxpayer's request, to explain some complex or novel
tax-law issue. -Abbr. TAM. [Cases: Internal Revenue
~."J'Y''''. 3051.]
technical conversion. See CONVERSION (2).
technical error. See harmless error under ERROR (2).
technical estoppel. See ESTOPPEL.
technical mark. See technical trademark under TRADE
MARK.
technical mortgage. See MORTGAGE.
technical trademark. See TRADEMARK.
technical trust. See passive trust under TRUST.
Technology Administration. A unit in the U.S.
Department of Commerce responsible for working
with industry on ways to use technology to stimulate
economic growth . The agency also carries out tech
nology programs and disseminates information about
technology. It has three offices: the Office ofTechnol
ogy Policy (OTP), the National Institute of Standards
and Technology (NIST), and the National Technical
Information Service (NTIS). It was established in 1988.
15 USCA 3704.
technology transfer. 1. lhe sale or licenSing ofintellec
tual property. 2. The field involving the sale and licens
ing ofintellectual property . Many major universities
have an office of technology transfer to control the
university's intellectual property and generate income
from it. [Cases: Copyrights and Intellectual Property
107.]
teen court. See COURT.
teind (tcend). Scots law. (usu. pl.) A tithe. teind, vb.
teindable, adj.
Teind Court. Scots law. A court that adjudicates ques
tions relating to teinds, esp. increases in the stipends of
parish ministers . It includes one ofthe judges of the
Court ofSession, sitting as Commissioner ofTeinds.
Also termed Court ofTeinds. telccopier. See FAX (2).
teleological interpretation. See purposive construction
under CONSTRUCTION.
telescam. A fraud committed by using telemarketing to
induce the victim to disclose sensitive personal infor
mation or send money to the perpetrator. Cf. BOILER
ROOM TRANSACTION; PHISHING.
teller. 1. A bank clerk who deals directly with customers
by receiving and paying out money. 2. Parliamentary
law. A member ofa tellers committee; esp., a vote-coun
ter at an election. See tellers committee under COMMIT
TEE. [Cases: Elections C-:;:, 126(3), 209.J
Teller in Parliament. One ofthe members ofthe British
House of Commons -two from government and two
from the opposition appointed by the Speaker to
count votes.
teller's check. See CHECK.
tellers committee. See COMMITTEE.
teller vote. See lobby vote under VOTE (4).
temerarium perjurium super assisam (tem-<l-rair-ee-;:Im
p<lr-juur-ee-;:Im s[y]oo-p;:lr <l-SI-z<=Jm). [Law Latin] Hist.
Rash perjury on an assize. The phrase described a
perverse verdict returned by a jury.
temere jurantes super assisam (tem-<l-ree juur-an
teez s[y]oo-p<lr <l-SI-Z<lm). [Law Latin] Hist. Persons
swearing rashly upon an assize. See TEMERARIUM PER
JURIUM SUPER ASSISAM.
temere litigare (tem-<=J-ree lit-<l-gair-ee), vb. [Latin] Hist.
To litigate rashly.
temperance. 1. Habitual moderation regarding the indul
gence ofthe natural appetites and passions; restrained
or moderate indulgence (esp. ofalcoholic beverages).
2. Abstinence.
temperate damages. See DAMAGES.
tempestive (tem-pes-tiv) adj. Scots law. Ofor relating to
the proper time; timely; timeous.
templar. A barrister who has chambers in the Temple of
the Inns ofCourt. Ihe Middle and Inner Temples are
so named because they are housed in buildings on land
that once belonged to the Knights Templars.
temporality. 1. Civil or political power, as distinguished
from ecclesiastical power. 2. (usu. pl.) The secular prop
erties or revenues of an ecclesiastic.
temporal jurisdiction. See JURISDICTION.
temporal lord. See LORD.
temporary, adj. Lasting for a time only; existing or con
tinuing for a limited (usu. short) time; transitory.
temporary administration. See ADMINISTRATION.
temporary alimony. See ALIMONY.
temporary allegiance. See ALLEGIANCE.
Temporary Assistance to Needy Families. A combined
state and federal program that provides limited finan
cial assistance to families in need. 42 USCA 601
603a. This program replaced Aid to Families with
1603
Dependent Children. TANF differs from AFDC
because families are limited to no more than five years
of assistance, and states have more control over eli
gibility requirements. Abbr. TANF. [Cases: Social
Security and Public Welfare C)194-194.21.}
temporary-cessation-of-production doctrine. Oil &
gas. The rule that an oil-and-gas lease term "for so long
thereafter as oil and gas are produced" will not termi
nate once production is attained unless the cessation of
production is for an unreasonable length of time. See
CESSATION-OP-PRODUCTION CLAUSE. [Cases: Mines and
Minerals <:.>78.1(9).]
temporary committee. See special committee under
COMMITTEE.
temporary damages. See DAMAGES.
temporary detention. See pretrial detention under
DETENTION.
temporary disability. See DISABILITY (2).
Temporary Emergency Court of Appeals. [fist. A
special U.S. court created in 1971 with exclusive
jurisdiction over appeals from federal district courts
in cases arising under the wage-and-price-control
program ofthe Economic Stabilization Act of 1970.
The court consisted of nine district and circuit judges
appointed by the ChiefJustice. This court was abolished
in 1992. -Abbr. TECA. Cf. EMERGENCY COURT OF
APPEALS. [Cases: Federal Courts (;::::0 1140.]
temporary employment. See EMPLOYMENT.
temporary executor. See acting executor under
EXECUTOR.
temporary fiduciary. See FIDUCIARY.
temporary frustration. See FRUSTRATION.
temporary injunction. See preliminary injunction under
INJUNCTION.
temporary injury. See INJURY.
temporary insanity. See INSANITY.
temporary insider. See INSIDER.
temporary judge. See visiting judge under JUDGE.
temporary nuisance. See NUISANCE.
temporary order. See ORDER (2).
temporary perfection. See PERFECTION.
temporary restraining order. (I861) 1. A court order
preserving the status quo until a litigant's applica
tion for a preliminary or permanent injunction can
be heard. _ A temporary restraining order may some
times be granted without notifying the opposing party
in advance. Cf. emergency protective order under PRO
TECTIVE ORDER. [Cases: Injunction (;::::0 150.] 2. See ex
parte injunction under INJUNCTION. -Often shortened
to restraining order. Abbr. TRO.
temporary statute. See STATUTE.
temporary taking. See TAKING (2).
temporary total disability. See DISABILITY (2).
temporary ward. See WARD. tenancy
tempus (tem-pJs), n. [Latin] Hist. Time; a speCified
duration.
tempus continuum (tem-pJs kJn-tin-yoo-Jm), n.
[l.atin] Hist. Time continuing without interruption;
a continuous period.
tempus deliberandi (tem-pJs di-lib-J-ran-dI), n.
[Latin] Rist. The period allowed for deliberation;
esp., the time during which an heir could consider
whether to accept or reject an inheritance. Cf. JUS
DELIBERANDI.
tempus lugendi (tem-pJs loo-gen-Dl). n. See LUCTUS.
tempus semestre (tem-pJs si-mes-trJ), n. [Latin] A
period of 182 days (halfa year).
tempus utile (tem-p"'s yoo-t",-lee), n. [l.atin "useful
time"] Hist. Time that one can use to exercise his or
her legal rights; the period within which an action
or proceeding must be brought. -This is the period
before prescription or limitation cuts off a right.
tenancy. (16c) 1. The possession or occupancy ofland
under a lease; a leasehold interest in real estate. 2. The
period of such possession or occupancy. See ESTATE (1).
[Cases: Landlord and Tenant (;::::020.]3. The possession
ofreal or personal property by right or title, esp. under
a conveying instrument such as a deed or will.
at-will tenancy. See tenancy at will.
common tenancy. See tenancy in common.
cotenancy. (1875) A tenancy with two or more
coowners who have unity of possession. -Examples
are a joint tenancy and tenancy in common. [Cases:
Joint Tenancy (;::::0 1; Tenancy in Common (;::::0 1.]
entire tenancy. (l7c) A tenancy possessed by one
person, as opposed to a joint or common tenancy.
See estate by entirety under ESTATE (1).
general tenancy. (18c) A tenancy that is not of fixed
duration under the parties' agreement. [Cases:
Landlord and Tenant (;::::0 114.]
holdover tenancy. See tenancy at sufferance.
joint tenancy. (I7c) A tenancy with two or more
coowners who take identical interests simultaneously
by the same instrument and with the same right of
possession. _ A joint tenancy differs from a tenancy in
common because each joint tenant has a right ofsur
vivorship to the other's share (in some states, this right
must be clearly expressed in the conveyance -other
wise, the tenancy will be presumed to be a tenancy in
common). See RIGHT OF SURVIVORSHIP. Cf. tenancy
in common. [Cases: Joint Tenancy 6.}
"The rules for creation of a joint tenancy are these: The
joint tenants must get their interests at the same time.
They must become entitled to possession at the same time.
The interests must be physically undivided interests, and
each undivided interest must be an equal fraction of the
whole -e.g., a one-third undiVided interest to each of
three jOint tenants. The joint tenants must get their inter
ests by the same instrument -e.g., the same deed or will.
The joint tenants must get the same kinds of estates
e.g., in fee simple, for life, and so on." Thomas F. Bergin
& Paul G. Haskell, Preface to Estates in Land and Future
Interests 55 (2d ed. 1984).
1604 tenancy
life tenancy. See life estate under ESTATE (1).
periodic tenancy. (1891) A tenancy that automatically
continues for successive periods -usu. month to
month or year to year unless terminated at the end |
tenancy that automatically
continues for successive periods -usu. month to
month or year to year unless terminated at the end
ofa period by notice. _ A typical example is a month
to-month apartment lease. This type oftenancy orig
inated through court rulings that, when the lessor
received a periodic rent, the lease could not be ter
minated without reasonable notice. Also termed
tenancy from period to period; periodic estate; estate
from period to period; (more specit:) month-to-month
tenancy (or estate); year-to-year tenancy (or estate).
[Cases: Landlord and Tenant C= 114, llS.]
several tenancy. (17c) A tenancy that is separate and
not held jointly with another person.
tenancy at sufferance. (18c) A tenancy arising when a
person who has been in lawful possession ofproperty
wrongfully remains as a holdover after his or her
interest has expired. -A tenancy at sufferance takes
the form of either a tenancy at will or a periodic
tenancy. Also termed holdover tenancy; estate at
sufferance. See HOLDING OVER (1). [Cases: Landlord
and Tenant C=c 117, 119.}
"A tenancy at sufferance arises where a tenant, having
entered upon land under a valid tenancy, holds over
without the landlord's assent or dissent. Such a tenant
differs from a trespasser in that his original entry was
lawful, and from a tenant at will in that his tenancy exists
without the landlord's assent. No rent, as such, is payable,
but the tenant is liable to pay compensation for his use and
occupation of the land. The tenancy may be determined
[Le., terminated] at any time, and may be converted into
a yearly or other periodic tenancy in the usual way, e.g.,
if rent is paid and accepted with reference to a year in
circumstances where the parties intended there to be a
tenancy." Robert E. Megarry & M.P. Thompson, A Manual
of the Law of Real Property 319 (6th ed. 1993).
tenancy attendant on the inheritance. A tenancy
for a term that is vested in a trustee in trust for the
owner of the inheritance. _ The tenancy is a form
of personal property to the trustee. Also termed
tenancy attendant on an inheritance; term attendant
on the inheritance.
tenancy at will. (I7c) A tenancy in which the tenant
holds possession with the landlord's consent but
without fixed terms (as for duration or rent); specif.,
a tenancy that is terminable at the will of either the
transferor or the transferee and that has no desig
nated period of duration. _ Such a tenancy may be
terminated by either party upon fair notice. Also
termed at-will tenancy; estate at will. Landlord
and TenantC"='117, 118, 120.}
tenancy by the entirety (en-tI-<lr-tee). See estate by
entirety under ESTATE (1). [Cases: Husband and Wife
(;;-:;:, 14.2-14.11.]
"Tenancy by the entireties is a form of joint tenancy. It
resembles joint tenancy in that upon the death of either
husband or wife the survivor automatically acquires title
to the share of the deceased spouse. Like ajoint tenancy,
also, it is necessary for the creation of a tenancy by the
entireties that the husband and wife acquire title by the same deed or Will." Robert Kratovil, Real Estate Law 198
(6th ed. 1974).
"Where [tenancy by the entirety] is recognized, it may exist
only between a husband and a wife. It resembles, in most
respects, the joint tenancy. The only major difference is
that a tenant by the entirety may not destroy the other
spouse's right of survivorship by transferring his or her
interest to another. Whether a tenant by the entirety may
transfer any interest to a third party -for example, the
right of present possession or the contingent right of survi
vorship -is a matter on which the states differ. Most take
the view that no interest may be transferred. The husband
and wife may, of course, together convey their estate to
a third person. If they both wish to convert their tenancy
into a tenancy in common or ajoint tenancy, they may do
so. Upon the death of a tenant by the entirety, no interest
passes, in theory, to the surviving spouse. As was true
of the joint tenancy, the survivor's ownership is thought
simply to expand to absorb the relinquished ownership of
the decedent." Thomas F. Bergin & Paul G. Haskell, Preface
to Estates in Land and Future Interests 55 (2d ed. 1984).
"A tenancy by the entireties could exist in any estate,
whether in fee, for life, for years or otherwise. The nature
of the tenancy was virtually that of an unseverable joint
tenancy; neither husband nor wife could dispose of any
interest in the land without the concurrence of the other,
nor could one of them cause a forfeiture of the land. The
unity of husband and wife was regarded as so complete
that they were said to be seised 'per tout et non per mie,'
the survivor being entitled to the whole of the land by force
of the original limitation, discharged of the other's right
to participate, and not, as in the case of joint tenancy, by
virtue of survivorship on the death of the other tenant.
Unlike joint tenants, neither tenant was regarded as having
any potential share in the land; 'between husband and wife
there are no moieties.'" Robert E. Megarry & P.V. Baker, A
Manual of the Law of Real Property 232-33 (4th ed. 1969)
(quoting Marquis of Winchester's Case, 3 Co. Rep. 1a, Sa
(l583).
tenancy by the rod. See COPYHOLD.
tenancy by the verge. See COPYHOLD.
tenancyfor a term. 07c) A tenancy whose duration
is known in years, weeks, or days from the moment
of its creation. -Also termed tenancy for a period;
tenancy for years; term for years; term ofyears; estate
for a term; estate for years; lease for years. [Cases:
Landlord and Tenant C=c70, 72,113-115.]
tenancyfrom period to period. See periodic tenancy.
tenancy in common. (17c) A tenancy by two or more
persons, in equal or unequal undivided shares, each
person having an equal right to possess the whole
property but no right of survivorship. Also termed
common tenancy; estate in common. Cf. joint tenancy.
[Cases: Tenancy in Common C=c 1.]
"The central characteristic of a tenancy in common is
simply that each tenant is deemed to own by himself, with
most of the attributes of independent ownership, a phYSi
cally undivided part of the entire parcel." Thomas F. Bergin
& Paul G. Haskell, Preface to Estates in Land and Future
Interests 54 (2d ed. 1984).
tenancy in coparcenary. See COPARCENARY.
tenancy in fee. See FEE SIMPLE.
tenancy in gross. (1860) A tenancy for a term that is
outstanding -that is, one that is unattached to or
disconnected from the estate or inheritance, such as
1605
one that is in the hands of some third party having
no interest in the inheritance.
tenancy in tail. See FEE TAIL.
tenancy par la verge. See COPYHOLD.
year-to-year tenancy. See periodic tenancy.
tenant, n. (I4c) 1. One who holds or possesses lands or
tenements by any kind of right or title. See TENANCY. i
[Cases: Landlord and Tenant C;=: 1.]
copyhold tenant. See customary tenant.
customary tenant. A tenant holding by the custom of
the manor . Over time, customary tenants became
known as copyhold tenants. See COPYHOLD.
"The lord has a court; in that court the tenant in villein
age, even though he be personally unfree, appears as no
mere tenant at will, but as holding permanently, often heri
tably, on fairly definite terms. He is a customary tenant.
customarius, consuetudinarius; he holds according to the
custom of the manor. ... Then gradually ... [d]ealings with
villein tenements are set forth upon the rolls of the lord's
court; the villein tenement is conceived to be holden 'by
roll of court: or even 'by copy of court roll,' and the mode
of conveyance serves to mark off the most beneficial of
villeinholds from the most onerous of freeholds .... In
Henry Ill's time this process which secured for the tenant
in villeinage a written, a registered title, and gave him the
name of 'copyholder,' was but beginning ...." 2 Frederick
Pollock & Frederic W. Maitland, The History of English Law
Before the Time of Edward 1361,375 (2d ed. 1899).
dominant tenant. The person who holds a dominant
estate and therefore benefits from an easement. Cf.
servient tenant. [Cases: Easements
holdover tenant. A person who remains in possession
of real property after a previous tenancy (esp. one
under a lease) expires, thus giving rise to a tenancy
at sufferance. -Sometimes shortened to holdover.
See tenancy at sufferance under TENANCY. [Cases:
Landlord and Tenant C;=:, 119(2).]
hypothetical tenant. See HYPOTHETICAL TENANT.
illusory tenant. 1. A fictitious person who, as the land
lord's alter ego, subleases an apartment to permit
the landlord to circumvent rent-law regulations.
2. A tenant whose business is to sublease rent-con
trolled apartments. [Cases: Landlord and Tenant
200.16.]
joint tenant. See joint tenancy under TENANCY.
life tenant. See LIFE TENANT.
particular tenant. A tenant of a limited estate taken out
of a fee. See particular estate under ESTATE (1).
prime tenant. A commercial or professional tenant
with an established reputation that leases substan
tial, and usu. the most preferred. space in a commer
cial development. A prime tenant is important in
securing construction financing and in attracting
other desirable tenants.
quasi-tenant. A sublessee that the new tenant or rever
sioner allows to hold over. tenant
servient tenant. The person who holds a servient
estate and is therefore burdened by an easement. Cf.
dominant tenant. [Cases: Easements <:;-~2.1
statutory tenant. A person who is legally entitled to
remain on property after the tenancy expires. [Cases:
Landlord and Tenant <:;-~200.20. 278.4(S).]
tenant at sufferance. A tenant who has been in lawful
possession of property and wrongfully remains as a
holdover after the tenant's interest has expired . The
tenant may become either a tenant at will or a periodic
tenant. -Also termed permissive tenant. See tenancy
at will; periodic tenancy. [Cases: Landlord and Tenant
C-:Y117,119.]
tenant by elegit. See ELEGIT.
tenant by the curtesy. A life tenant who receives the
estate from his deceased wife by whom he has had
legitimate children . The children hold the remain
der interest. See cu RTESY. [Cases: Descent and Distri
bution C;=:S2-67; Dower and Curtesy C;=:S, 11. 113,
114; Wills C;=:496, 778-803.]
tenant by the verge. See COPYHOLDER.
tenant for a term. A tenant whose tenancy is for a
defined number ofyears, months, weeks, or days, set
when the tenancy is created.
tenant for life. See LIFE TENANT.
tenant in chief. Hist. A person who held land directly
of the king. -Also termed tenant in capite. See IN
CAPITE.
tenant in common. One of two or more tenants who
hold the same land by unity of possession but by
separate and distinct titles, with each person having
an equal right to possess the whole property but no
right of survivorship. See tenancy in common under
TENANCY. [Cases: Tenancy in Common 1.]
tenant in demesne (di-mayn or di-meen). A feudal
tenant who holds land of, and owes services to, a
tenant in service. Cf. tenant in service.
tenant in dower. A life tenant who is entitled to hold
and use one-third of all the real property owned by
her deceased husband. See DOWER. [Cases: Dower and
Curtesy C::> 113,114.]
tenant in fee. The owner of land held in fee. -Also
termed tenant infee simple. [Cases: Estates in Property
"A tenant in fee simple is [one who owns] lands, tenements,
or hereditaments, to hold to him and his heirs forever;
generally, absolutely, and Simply, without mentioning
what heirs, but referring that to his own pleasure, Of to
the disposition of the law. An estate in fee simple is an
estate of inheritance without condition, belonging to the
owner, and alienable by him or transmissible to his heirs
absolutely and simply; it is an estate or interest in land of
one holding absolute and exclUSive control and dominion
over it, no matter how acquired." 31 c.j.S. Estates 11, at
27 (1996).
tenant in service. A feudal tenant who grants an
estate to another (a tenant in demesne) and is there
1606 tenancy by the curtesy
fore entitled to services from the latter. Cf. tenant in
demesne.
undertenant. See SUBLESSEE.
2. One who pays rent for the temporary use and occupa
tion ofanother's land under a lease or similar arrange
ment. See LESSEE. 3. Archaic. The defendant in a real
action (the plaintiff being called a demandant). See real
action under ACTION (4).
|
defendant in a real
action (the plaintiff being called a demandant). See real
action under ACTION (4).
tenancy by the curtesy. See CURTESY.
tenantable repair. (l7c) A repair that will render premises
fit for present habitation. See HABITABILITY. [Cases:
Landlord and Tenant C::=> 150(1), 152(3), 160(2).]
tenantlike, adj. In accordance with the rights and obliga
tions ofa tenant, as in matters of repairs, waste, etc.
tenant paravail. Archaic. A tenant's tenant; a sublessor.
tenant par la verge. See COPYHOLDER.
tenant-right. English law. A tenant's right, upon ter
mination of the tenancy, to payment for unexhausted
improvements made on the holding. This right is
governed by the Agricultural Holdings Act of 1986.
tenantry. A body or group of tenants.
tenant's fixture. See FIXTURE.
tend, vb. 1. To be disposed toward (something). 2. To
serve, contribute, or conduce in some degree or way;
to have a more or less direct bearing or effect. 3. To
be directed or have a tendency to (an end, object, or
purpose).
ten-day rule. The doctrine that one who sells goods on
credit and then learns that the buyer is insolvent has
ten days after the buyer receives the goods to demand
their return. The seller has even longer to demand
return if the buyer has made a written representation
of solvency to the seller within three months before
delivery. [Cases: Sales C::=>316(1).]
tender, n. (l6c) 1. A valid and sufficient offer of perfor
mance; specif., an unconditional offer ofmoney or per
formance to satisfy a debt or obligation <a tender of
delivery>. The tender may save the tendering party
from a penalty for nonpayment or nonperformance or
may, ifthe other party unjustifiably refuses the tender,
place the other party in default. Cf. OFFER OF PERFOR
MANCE; CONSIGNATION. [Cases: Contracts C::=>279; Sales
C::=> 153, 185; Vendor and Purchaser C::=> 148, 170.]
tender ofdelivery. (1821) A seller's putting and holding
conforming goods at the buyer's disposition and
giving the buyer any notification reasonably neces
sary to take delivery . The manner, time, and place
for tender are determined by the agreement and by
Article 2 of the Uniform Commercial Code. [Cases:
Sales C::=> 153.]
tender ofperformance. (l8c) An obligor's demonstra
tion of readiness, willingness, and ability to perform
the obligation; esp., a buyer's demonstration of read
iness, willingness, and ability to pay the purchase
money, or a seller's offer to deliver merchantable
title. An offer to perform is usu. necessary to hold the defaulting party to a contract liable for breach.
[Cases: Contracts C::=>279.]
2. Something unconditionally offered to satisfy a debt
or obligation. [Cases: Tender C::=> 1, 10.] 3. Contracts.
Attempted performance that is frustrated by the act of
the party for whose benefit it is to take place . The per
formance may take the form ofeither a tender ofgoods
or services, or a tender ofpayment. Although this sense
is quite similar to sense 1, it differs in making the other
party's refusal part of the definition itself.
perfect tender. (l8c) A seller's tender that meets the
contractual terms entered into with the buyer con
cerning the quality and specifications of the goods
sold. See PERFECT-TENDER RULE. [Cases: Sales C::=>
153, 177.]
4. An offer or bid put forward for acceptance <a tender
for the construction contract>. [Cases: Public Contracts
C::=>8.] 5. Something that serves as a means ofpayment,
such as coin, banknotes, or other circulating medium;
money <legal tender>. [Cases: Payment C::=> 10; United
States C::=>34.] -tender, vb.
tender, plea of. See PLEA OF TENDER.
tender offer. A public offer to buy a minimum number
ofshares directly from a corporation's shareholders at
a fixed price, usu. at a substantial premium over the
market price, in an effort to take control of the corpo
ration. -Also termed takeover offer; takeover bid. Cf.
public-exchange offer under OFFER. [Cases: Securities
Regulation C::=>52.30-52.50.]
"Broadly speaking, a direct solicitation of a corporation's
stockholders to sell their shares to an acquirer is known as
a tender offer (because the acquirer is asking the existing
stockholders to tender their shares for sale)." Franklin A.
Gevurtz, Corporation Law 7.3, at 673 (2000).
cash tender offer. A tender offer in which the bidder
offers to pay cash for the target's shares, as opposed to
offering other corporate shares in exchange. Most
tender offers involve cash. [Cases: Securities Regula
tion C::=>52.30-52.50.]
creeping tender offer. See creeping acquisition under
ACQUISITION.
tender of issue. (1811) Common-law pleading. A form
attached to a traverse, by which the traversing party
refers the issue to the proper mode of trial. [Cases:
Pleading C::=> 100, 112.]
"[Ilt is the object of all pleadings to bring the parties, in
the course of their mutual altercations, to an issue that is
a single entire point, affirmed on the one side and denied
on the other; and it is to effect this object that the above
rule was established. There can be no arrival at this point
until one or the other of the parties, by the conclusion
of his pleading, offers an issue for the acceptance of his
opponent, and this offer is called the 'tender of issue.'''
Benjamin j. Shipman, Handbook ofCommon-Law Pleading
254, at 446 (Henry Winthrop Ballantine ed., 3d ed.
1923).
tender-years doctrine. (1954) Family law. The doctrine
holding that custody of very young children (usu. five
years ofage and younger) should generally be awarded
to the mother in a divorce unless she is found to be
1607
unfit. This doctrine has been rejected in most states
and replaced by a presumption ofjoint custody. See
MATERNAL-PREFERENCE DOCTRINE; PRIMARY-CARE
GIVER DOCTRINE. [Cases: Child Custody C=::o457.]
tender-years hearsay exception. See HEARSAY EXCEP
TION.
tenement. (14c) 1. Property (esp.land) held by freehold;
an estate or holding ofland.
dominant tenement. See dominant estate under ESTATE
(4).
servient tenement (silr-vee-;mt). See servient estate
under ESTATE (4).
2. A house or other building used as a residence. 3. An
apartment. 4. TENEMENT HOUSE.
tenement house. (1858) A low-rent apartment building,
usu. in poor condition and at best meeting only
minimal safety and sanitary conditions. -Sometimes
shortened to tenement.
tenendas (ta-nen-das), n. [Law Latin "to be held"] Hist.
The charter clause stating the nature of the tenure, so
called because ofthe fi rst word ofthe clause.
tenendum (ti}-nen-di}m). [Latin "to be held"] (17c)
A clause in a deed designating the kind of tenure
by which the things granted are to be held. -Also
termed tenendum clause; (in Scots law) tenendas. See
HABENDUM ET TENENDUM. Cf. HABENDUM CLAUSE
(1).
lO-K. A financial report filed annually with the SEC by a
registered corporation . The report typically includes
an audited financial statement, a description ofthe cor
poration's business and financial condition, and sum
maries of other financial data. -Also termed Form
1O-K. Cf. 8-K; lO-Q. (Cases: Securities Regulation
60.27(6).]
Tennessee Valley Authority. A government-owned
corporation, created in 1933, that conducts a unified
program ofresource development to advance economic
growth in the Tennessee Valley region . The Author
ity's activities include flood control, navigation
development, electric-power production, fertilizer
development, recreation improvement, and forestry
and-wildlife development. Though its power program
is financially self-supporting, the Authority's other
programs are financed primarily by congressional
appropriations. -Abbr. TVA. [Cases: United States
(;::~ 53(6.1).]
tenor, n. 1. An exact copy ofan instrument. 2. The exact
words ofa legal document, esp. as cited in a pleading.
3. The meaning ofa legal document.
ten-percent bond. See BOND (2).
IO-Q. An unaudited financial report filed quarterly with
the SEC by a registered corporation . The IO-Q is less
detailed than the lO-K. -Also termed Form 1O-Q. Cf.
lO-K.[Cases: Securities Regulation C=::o60.27(6).]
tentative agenda. See proposed agenda under AGENDA.
tentative trust. See Totten trust under TRUST. tenure
Tenth Amendment. The constitutional amendment,
ratified as part ofthe Bill ofRights in 1791, providing
that any powers not constitutionally delegated to the
federal government, nor prohibited to the states, are
reserved for the states or the people. -Also termed
Reserved Power Clause. [Cases: States C-'-:c4.16.j
1031 exchange (ten-thi}r-tee-wiln). (1972) 1. An exchange
oflike-kind property that is exempt from income-tax
consequences under IRC (26 USCA) 1031. [Cases:
Internal Revenue (;::~")3184.] Cf. TAX-FREE EXCHANGE.
2. See TAX-FREE EXCHANGE.
! tenure (ten-yar), n. (l5c) 1. A right, term, or mode of
holding lands or tenements in subordination to a
superior. In feudal times, real property was held pre
dominantly as part ofa tenure system. 2. A particular
feudal mode ofholding lands, such as socage, gavel
kind, villeinage, and frankalmoign.
"Most of the feudal incidents and consequences of socage
tenure were expressly abolished in New York by the act of
1787; and they were [later] wholly and entirely annihilated
by the New York Revised Statutes .... They were also
abolished by statute in Connecticut, 1793; and they have
never existed, or they have ceased to exist, in all essential
respects, in every other state. The only feudal fictions and
services to be retained in any part of the United States
consist of the feudal principle, that the lands are held of
some superior or lord, to whom the obligation of fealty,
and to pay a determinate rent, are due .... The lord para
mount of all socage land was none other than the people
of the state, and to them, and them only, the duty of fealty
was to be rendered ...." 3 James Kent, Commentaries on
American Law *509-1 0 (George Comstock ed., 11th ed.
1866).
base tenure. Hist. The holding of property in villein
age rather than by military service or free service.
See VILLEINAGE.
copyhold tenure. See COPYHOLD.
lay tenure. Hist. Any tenure not held through religiOUS
service, such as a base tenure or a freehold tenure .
The three historical types oflay tenures are knight
service, socage, and serjeanty. See KNIGHT-SERVICE;
SOCAGE; SERJEANTY. Cf. tenure by divine service.
military tenure, A tenure that bears some relation
to military service, such as knight-service, grand
serjeanty, and cornage. -Also termed tenure in
chivalry.
spiritual tenure. A tenure that bears some relation to
religiOUS exercises, such as frankalmoign and tenure
by divine service.
tenure ad furcam et flagellum (ad f~r-kJm et flJ
jel-i'lm). [Latin] Hist. Tenure by gallows and whip.
This was the meanest of the servile tenures -the
bondman was at the disposal ofthe lord for life and
limb.
tenure by divine service. Hist. A tenure obligating the
tenant to perform an expressly defined divine service,
such as singing a certain number of masses or distrib
uting a fixed sum ofalms. Cf. lay tenure.
tenure in chivalry. See military tenure.
villein tenure. See VILLEINAGE.
1608 tenured faculty
3. A status afforded to a teacher or professor as a pro
tection against summary dismissal without sufficient
cause . This status has long been considered a cor
nerstone of academic freedom. [Cases: Colleges and
Universities ~8.1(2); Schools ~133.6.) 4. More
generally, the legal protection of a long-term relation
ship, such as employment. [Cases: Officers and Public
Employees ~60.) -tenurial (ten-yuur-ee-Jl), adj.
tenured faculty. The members ofa school's teaching staff
who hold their positions for life or until retirement, and
who may not be discharged except for cause. [Cases:
Colleges and Universities ~8.1(2).)
tenure in capite. See IN CAPITE.
tenure in chivalry. See military tenure under TENURE.
tepid bench. See lukewarm bench under BENCH.
teratogen (tJ-rat-J-jJn), n. An agent, usu. a chemical,
that causes injury to a fetus |
(tJ-rat-J-jJn), n. An agent, usu. a chemical,
that causes injury to a fetus or causes any of various
birth defects <alcohol is a teratogen to the developing
brain ofa fetus>. -teratogenic (tJ-rat-J-jen-ik), adj.
terce. Hist. Scots law. A widow's interest in one-third
of her husband's real property, if she has not accepted
some other special provision . The couple must have
been married at least a year and a day or else have
produced a living child together. See DOWER.
terce land. Hist. Scots law. Income-producing real
property in which a widow has a pecuniary interest
because it was owned by her husband.
tercer. Hist. Scots law. A widow who has an interest
in one-third of her husband's real property. -Also
spelled tiercear.
tergiversatio (tJr-jiv-Jr-say-shee-oh), n. [Latin "being
reluctant, hanging back") Roman law. A delay tactic,
esp. an accuser's failure to pursue a criminal charge,
perhaps by not appearing at the trial. To withdraw
an accusation, it was necessary to obtain the court's
permission for an annulment (abolitio). In A.D. 61, a law
was passed by which anyone convicted of tergiversatio
was subject to a fine. See CALUMNIA. Cf. PRAEVARICA
TIO. PI. tergiversationes (tJr-jiv-Jr-say-shee-oh-neez).
term, n. (14c) 1. A word or phrase; esp., an expression
that has a fixed meaning in some field <term ofart>. 2.
A contractual stipulation <the delivery term provided
for shipment within 30 days>. See CONDITION (3).
essential term. Seefundamental term.
fundamental term. (1873) 1. A contractual provi
sion that must be included for a contract to exist;
a contractual provision that specifies an essential
purpose of the contract, so that a breach of the pro
vision through inadequate performance makes the
performance not only defective but essentially dif
ferent from what had been promised. [Cases: Con
tracts ~9(1), 15.) 2. A contractual provision that
must be included in the contract to satisfy the statute
of frauds. -Also termed essential term; vital term.
[Cases: Frauds, Statute of~ 113.)
implied term. (I8c) A provision not expressly agreed
to by the parties but instead read into the contract by a court as being implicit. An implied term should
not, in theory, contradict the contract's express terms.
[Cases: Contracts ~168.)
material term. (1839) A contractual provision dealing
with a Significant issue such as subject matter, price,
payment, quantity, quality, duration, or the work to
be done. [Cases: Contracts ~9.)
nonessential term. See nonfundamental term.
nonfundamental term. (1969) Any contractual provi
sion that is not regarded as a fundamental term.
Also termed nonessential term; nonvital term. [Cases:
Contracts ~9(1), 15.]
vital term. See fundamental term.
3. (pl.) Provisions that define an agreement's scope;
conditions or stipulations <terms of sale>. 4. A fixed
period of time; esp., the period for which an estate is
granted <term ofyears>.
attendant term. (1983) A long period (such as 1,000
years) specified as the duration ofa mortgage, created
to protect the mortgagor's heirs' interest in the land by
not taking back title to the land once it is paid for, but
rather by assigning title to a trustee who holds the title
in trust for the mortgagor and the mortgagor's heirs.
This arrangement gives the heirs another title to
the property in case the interest they inherited proves
somehow defective. These types of terms have been
largely abolished. See tenancy attendant on the inheri
tance under TENANCY. [Cases: Mortgages ~54.)
"The advantage derived from attendant terms is the
security which they afford to purchasers and mortgagees.
If the bona fide purchaser or mortgagee should happen
to take a defective conveyance or mortgage, by which
he acquires a mere equitable title, he may, by taking an
assignment of an outstanding term to a trustee for himself,
cure the defect, so far as to entitle himself to the legal
estate during the term, in preference to any creditor, of
whose incumbrance he had not notice, at or before the time
of completing his contract for the purchase or mortgage.
He may use this term to protect his possessions, or to
recover it when lost. This protection extends generally
as against all estates and incumbrances created interme
diately between the raising of the term and the time of
the purchase or mortgage; and the outstanding term, so
aSSigned to a trustee for the purchaser or mortgagee, will
prevail over the intermediate legal title to the inheritance."
4 James Kent, Commentaries on American Law *87 (George
Comstock ed., 11 th ed. 1866).
satisfied term. (18c) A term of years in land that has
satisfied the purpose for which it was created before
the term's expiration.
term for deliberating. (1843) The time given a benefi
ciary to decide whether to accept or reject an inheri
tance or other succession.
term in gross. (1852) A term that is unattached to an
estate or inheritance. See tenancy in gross under
TENANCY.
term ofyears. 1. A fixed period covering a precise
number of years. -Also termed tenancy for a term.
2. English law. A fixed period covering less than a
year, or a specified number ofyears and a fraction of
a year. This sense applies under a seminal English
1609
statute the Law of Property Act of 1925. [Cases:
Landlord and Tenant (::::'70.]
"In effect, 'term of years' seems to mean a term for any
period having a fixed and certain duration as a minimum.
Thus, in addition to a tenancy for a specified number of
years (e.g., 'to X for ninety-nine years'), such tenancies as
a yearly tenancy or a weekly tenancy are 'terms of years'
within the definition, for there is a minimum duration of
a year or a week respectively. But a lease 'for the life of
X' cannot exist as a legal estate, and the same, perhaps,
applies to tenancies at will or at sufferance (if they are
estates at all) for their duration is wholly uncertain." Robert
E. Megarry & M.P. Thompson, A Manual ofthe Law ofReal
Property 74 (6th ed. 1993).
unexpired term. The remainder ofa period prescribed
by law or by agreement.
5. The period or session during which a court conducts
judicial business <the most recent term was busy
indeed>. Also termed (in sense 5) term ofcourt. See
SESSION, [Cases: Courts (::::::63.]
additional term. A distinct, added term to a previous
term. [Cases: Courts (:::::'64.]
adjourned term. (l8c) A continuance of a previous or
regular term but not a separate term; the same term
prolonged. [Cases: Courts (:::::'66,]
appearance term. The regular judicial term in which
a party is required to appear, usu. the first one after
legal service has been made. [Cases: Courts (:::::"63.J
civil term. 1he period during which a civil court hears
cases.
criminal term. A term of court during which indict
ments are found and returned, and criminal trials are
held. [Cases: Courts (:::::'63.]
equity term. (1836) The period during which a court
tries only equity cases.
general term. A regular term of court -that is, the
period during which a court ordinarily sits. Also
termed stated term. [Cases: Courts <)::063.]
regular term. (1820) A term ofcourt begun at the time
appointed by law and continued, in the court's discre
tion, until the court lawfully adjourns. [Cases: Courts
C""::::'63.]
special term, (1803) A term ofcourt scheduled outside
the general term, usu. for conducting extraordinary
business. [Cases: Courts (:::::'64.]
stated term. See general term.
term probatory. Eccles. law. 1. The period given to the
promoter of an ecclesiastical suit to produce wit
nesses and prove the case. 2. Hist. The time assigned
for taking testimony. -Sometimes termed (in sense
2) probatory term.
term to conclude. Eccles. law. A deadline imposed
by the judge for all parties to renounce any further
exhibits and allegations.
term to propound all things. Eccles. law, A deadline
imposed by the judge for the parties to exhibit all
evidence supporting their positions. termination-for-convenience clause
6. Hist. English law. One ofthe four periods in a year
during which the courts are in session to conduct
judicial business . Terms came into use in the 13th
century, and their dates varied. The four terms -
Hilary, Easter, Trinity, and Michaelmas were abol
ished by the Tudicature Acts of 1873-1875, and the legal
year was divided into sittings and vacations. Terms
are still maintained by the Inns ofCourt to determine
various time periods and dates, such as a call to the bar
or observance ofa Grand Day.
term annuity. See annuity certain under ANNUITY.
term attendant on the inheritance. See tenancy atten
dant on the inheritance under TENANCY.
term bond. See BOND (3).
term clause. See HABENDUM CLAUSE.
term day. See quarter day under DAY.
term deposit. See time deposit under DEPOSIT.
term fee. English law. A sum that a solicitor may charge
a client, and that the client (if successful) may recover
from the losing party, payable for each term in which
any proceedings follOWing the summons take place.
term for deliberating. See TERM (4).
term for years. See tenancy for a term under TENANCY.
terminable interest. See INTEREST (2).
terminable property. See PROPERTY.
terminal disclaimer. See DISCLAIMER.
terminate, vb. 1. To put an end to; to bring to an end. 2.
To end; to conclude.
termination, n. (l5c) 1. The act of ending something;
EXTINGUISHMENT <termination of the partnership by
winding up its affairs>.
termination ofconditional contract. The act ofputting
an end to all unperformed portions of a conditional
contract. [Cases: Contracts (:::::'249.]
termination ofemployment. The complete severance
ofan employer-employee relationship. [Cases: Labor
and Employment C:~40(2), 825.]
2. The end ofsomething in time or existence; conclusion
or discontinuance <the insurance policy's termination
left the doctor without liability coverage>. -termi
nate, vb. terminable, adj.
termination clause. See CANCELLATION CLAUSE.
termination fee. A fee paid if a party voluntarily backs
out of a deal to sell or purchase a business or a busi
ness's assets . Termination fees are usu. negotiated and
agreed on as part of corporate merger or acqUisition
negotiations. The fee is deSigned to protect the pro
spective buyer and to deter the target corporation from
entertaining bids from other parties. -Also termed
break-up fee. [Cases: Corporations (:::::'310(1),582,]
termination-for-convenience clause. A contractual
provision allowing the government to terminate all
or a portion of a contract when it chooses . Among
the governmental contracts that often include a
1610 termination hearing
termination-for-convenience clause are service con
tracts, research-and-development contracts, and
fixed-price contracts. See 48 CFR 52.249-1--52.249
2. [Cases: United States C=>70(35).]
termination hearing. See termination-ofparental-rights
hearing under HEARING.
termination of parental rights. (1939) Family law.
The legal severing of a parent's rights, privileges, and
responsibilities regarding his or her child . Termina
tion ofa parent's rights frees the child to be adopted by
someone else. -Abbr. TPR. See termination-of-paren
tal-rights hearing under HEARING; PARENTAL RIGHTS.
[Cases: Infants C=> 155.]
termination-of-parental-rights hearing. See
HEARING.
termination proceeding. (1939) An administrative
action to end a person's or entity's status or relationship.
For example, the International Banking Act autho
rizes the International Banking Board to institute a ter
mination proceeding when a foreign bank or its U.S.
agency or branch is convicted of money-laundering.
12 USCA 3105(e).
terminer. See OYER AND TERMINER.
term in gross. See TERM (4).
termini habiles (t;lr-mi-nI hab-;)-leez), n. [Law Latin]
Hist. Sufficient grounds . The phrase usu. referred to
the facts necessary to establish a prescriptive right.
termini sanctorum (t;lr-mi-nI sangk-tor-;)m), n. [Law
Latin] Hist. The limits of a sanctuary. See SANCTUARY
(1).
term interest. Oil & gas. A mineral interest or royalty
interest that is not perpetual. A term interest may be
for a fixed term (e.g., for 25 years) or defeasible (e.g.,
for 25 years and so long thereafter as there is produc
tion from the premises). [Cases: Mines and Minerals
C=>55.]
terminus ad quem (t;lr-mi-n;)s ad kwem). [Law Latin]
Hist. The point to which . The phrase appeared in ref
erence to the point before which some action must be
taken. |
Hist. The point to which . The phrase appeared in ref
erence to the point before which some action must be
taken.
terminus a quo (t;lr-mi-n<:ls ay kwoh). [Law Latin] Hist.
The point from which . The phrase appeared in refer
ence to the point from which something is calculated,
or the earliest time at which some action is possible.
term life insurance. See LIFE INSURANCE.
term loan. See LOAN.
term ofart. (17c) 1. A word or phrase having a specific,
precise meaning in a given specialty, apart from its
general meaning in ordinary contexts. Examples in
law include and his heirs and res ipsa loquitur. [Cases:
Contracts C=>152; Statutes C=>192.] 2. Loosely, a jargo
nistic word or phrase. -Also termed word ofart.
term-of-art canon. (1994) In statutory construction,
the principle that ifa term has acquired a technical or
specialized meaning in a particular context, the term should be presumed to have that meaning if used in
that context. [Cases: Statutes C=> 192.]
term of court. See TERM (5).
term ofoffice. The period during which an elected officer
or appointee may hold office, perform its functions, and
enjoy its privileges and emoluments. [Cases: Officers
and Public Employees C=>50-54.]
term ofyears. 1. See TERM (4). 2. See tenancy for a term
under TENANCY.
termor (t;lr-m<:lr). (14c) A person who holds lands or ten
ements for a term ofyears or for life.
term policy. See INSURANCE POLICY.
term probatory. See TERM (5).
terms. See YEAR BOOKS.
term sheet. Securities. 1. A document setting forth all
information that is material to investors about the
offering but is not disclosed in the accompanying pro
spectus or the confirmation. 2. LETTER OF INTENT.
abbreviated term sheet. A term sheet that includes (1)
the description of the securities as required by Item
202 of SEC Regulation S-K, or a good summary of
that information; and (2) all material changes to the
issuer's affairs required to be disclosed on SEC Form
S-3 or F-3, as applicable.
termtime. The time of the year when a court is in session.
[Cases: Courts C=>63, 65.]
term to conclude. See TERM (5).
term to propound all things. See TERM (5).
terra nullius (ter-<:l n;ll-ee-<:ls), n. [Latin "the land of
no one"] A territory not belonging to any particular
country.
terre-tenant (tair ten-<:lnt). (l5c) 1. One who has actual
possession ofland; the occupant ofland. 2. One who
has an interest in a judgment debtor's land after the
judgment creditor's lien has attached to the land (such
as a subsequent purchaser). -Also spelled tertenant
(t;lr-ten-<:lnt). -Also termed land-tenant. [Cases:
Judgment C=>793, 794.]
territorial, adj. Having to do with a particular geograph-
ical area.
territorial court. See COURT.
territorialism. (1977) The traditional approach to choice
oflaw, whereby the place ofinjury or ofcontract forma
tion determines which state's law will be applied in a
case. See CHOICE OF LAW.
territoriality. Int'llaw. The principle that a nation has
the right of sovereignty within its borders. [Cases:
International Law C=>7.]
"Three maxims formulated by the seventeenth-century
Dutch scholar Ulrich Huber undergird the modern concept
of territoriality: (1) a state's laws have force only within
the state's boundaries; (2) anyone found within the state's
boundaries is subject to the state's authority; and (3)
comity will discipline sovereign exercises of authority so
that the territorial effect of each state's laws is respected."
Paul Goldstein, International Copyright: Principles, Law,
and Practice 64 (2001).
1611
territorial jurisdiction. See fURISDICTION.
territorial law. The law that applies to all persons within
a given territory regardless of their citizenship or
nationality. Cf. PERSONAL LAW.
"[Tlhe expression 'territorial law' ... is not confined to
the positive rules that regulate acts and events occurring
within the jurisdiction, but includes also rules for the
choice of law. English rules for the choice of law are part
of the law of England and when a court, for instance, tests
the substantial validity of a contract made by two foreign- I
ers in Paris by reference to French law, it applies a rule
imposed by the English sovereign and it may accurately
be described as putting into force part of the territorial
law of England." G.c. Cheshire, Private International Law
32 (6th ed. 1961).
territorial property. Land and water over which a state
has jurisdiction and control, whether the legal title is
held by the state or by a private individual or entity .
Lakes and waters wholly within a state are generally its
property, as is the marginal sea within the three-mile
limit, but bays and gulfs are not always recognized as
state property. [Cases: States (;--; 11.]
territorial sea. See territorial waters under WATER.
territorial waters. See WATER.
territory, n. (l4c) 1. A geographical area included within
a particular government's jurisdiction; the portion of
the earth's surface that is in a state's exclusive posses
sion and contro!' Cf. INSULAR AREA. [Cases: Interna
tional Law
non-self-governing territory. lnt'llaw. A territory that
is governed by another country . These types ofter
ritories are rarely allowed representation in the gov
erning country's legislature.
trust territory. lnt'llaw. A territory to which the
United Nations' international trusteeship system
formerly applied; a territory once administered by
the United Nations or a member state for the politi
cal, economic, educational, and social advancement
of its inhabitants. -All territories that were subject
to this system either became independent nations or
opted to become part of another nation.
2. A part of the United States not included within any
state but organized with a separate legislature (such
as Guam and the U.S. Virgin Islands). Cf. COMMON
WEALTH (2); DEPENDENCY (1). [Cases: Territories
7.] territorial, adj.
"The United States has had territories from its inception.
The Northwest Territory, along with the thi rteen original
states, was a part of the nation when the constitution was
ratified. The original U.S. constitution expressly granted
Congress the power to govern territories. Before the Civil
War all of the territories were on the North American conti
nent and contiguous with the states or the other territories.
After the Civil War with the purchase of Alaska in 1867
(called 'Seward's Folly' or 'Seward's Icebox' by detractors)
came the United States' first acquisition of non-contigu
ous territory. Alaska did, however, have certain basics in
common with earlier U.S. territories. Alaska was on the
North American continent and sparsely populated ....
In the latter part of the 19th century, the U.S. became tertenant
territory ofa judge. (18c) The territorial jurisdiction of a
particular court. See 1URISDICTION (3). [Cases: Courts
(:::::'29, 171; Judges C=:30.J
terrorem clause. See NO-CONTEST CLAUSE.
terrorism, n. (l8c) The use or threat of violence to intimi
date or cause panic, esp. as a means of affecting political
conduct. See 18 USCA 2331. See also terroristic threat
under THREAT; terrorism insurance under INSURANCE.
[Cases: Extortion and Threats C=>25.]- terrorist, adj.
&n.
bioterrorism. Terrorism involving the intentional
release ofharmful biological agents, such as bacteria
or viruses, into the air, tood, or water supply, esp. of
humans. Also termed biological terrorism.
cyberterrorism. Terrorism committed by using a
computer to make unlawful attacks and threats of
attack against computers, networks, and electroni
cally stored information, and actually causing the
target to fear or experience harm.
domestic terrorism. 1. Terrorism that occurs primar
ily within the territorial jurisdiction of the United
States. 18 USCA 2331(5).2. Terrorism that is carried
out against one's own government or fellow citizens.
[Cases: War and National EmergencyC:::-;50.]
ecoterrorism. Terrorism related to environmental
issues or animal rights. -Also termed enviroterror
ism; ecological terrorism; environmental terrorism;
ecosabotage; ecovandalism.
international terrorism. Terrorism that occurs pri
marily outside the territorial jurisdiction of the
United States, or that transcends national boundaries
by the means in which it is carried out, the people it is
intended to intimidate, or the place where the perpe
trators operate or seek asylum. 18 USCA 2331(1). Cf.
state-sponsored terrorism. [Cases: War and National
Emergency C=:SO.J
state-sponsored terrorism. 1. International terrorism
supported by a sovereign government to pursue stra
tegic and political objectives. 2. See state terrorism
(1). Cf. international terrorism.
state terrorism. 1. Terrorism practiced by a sovereign
government, esp. against its own people . Under
international legal principles of sovereignty, a gov
ernment's conduct that has effects only within its
borders is generally not subject to interference from
other nations. 2. See state-sponsored terrorism (1).
terrorism insurance. See INSURANCE.
terroristic threat. See THREAT.
terrorizing, n. Family law. A parent's or caregiver's act
of orally assaulting, bullying, or frightening a child, or
causing the child to believe that the world is a hostile
place.
interested in various islands around the world." Stanley Terry stop. See STOP AND FRISK. K. Laughlin Jr., The Law of United States Territories and
Affiliated Jurisdictions 3.], at 25-26 (1995). tertenant. See TERRE-TENANT.
tertia 1612
tertia (tar-shee-a), n. Hist. A third. _ A widow's terce
was usu. referred to as tertia rationabilis ("a reason
able third").
tertium quid (tar-shee-am kwid). [Latin] Scots law. A
third thing that has qualities distinct from the prior
two components.
"Thus where, by the confusion of liquids or commixture
of solids, the subject produced is of a character different
from that of either of its component parts, it is called a
tertium quid." John Trayner, Travner's Latin Maxims 598
(4th ed. 1894).
tertius gaudens (tar-shee-as gaw-denz). [Latin "a rejoic
ing third"] A third party who profits when two others
dispute.
testable, adj. (17c) 1. Capable ofbeing tested <a testable
hypothesis>. 2. Capable of being transferred by will
<today Virtually all property is considered testable>.
3. Capable of making a will <an I8-year-old person is
testable in this state>. 4. Legally qualified to testify as a
witness or give evidence <the witness is testable about
the statement>.
Test Act. Hist. An English statute that required a person
who occupied a public office or position of trust to be a
member of the Church of England, to swear the Oath
of Supremacy, and to sign a declaration against tran
substantiation. 25 Car. 2, ch. 2 (1673). _ 1be Act was
repealed in 1828.
test action. See test case (2) under CASE.
testacy. The state or condition of a person having died
with a valid will. Cf. [!IHESTACY. [Cases: Wills ~1.]
testament (tes-ta-m<lnt). (14c) l. Traditionally, a will
disposing ofpersonal property. Cf. DEVISE (4). 2. WILL
(2).
closed testament. See mystic will under WILL.
inofficious testament. Civil law. A will that does not
dispose of property to the testator's natural heirs; esp.,
a will that deprives the heirs of a portion ofthe estate
to which they are entitled by law. Also termed
inofficious will; unofficious will. Seeforced heir under
HEIR. [Cases: Wills ~82.]
military testament. See soldier's will under WILL.
mutual testament. See mutual will under WIn.
mystic testament. See mystic will under WILL.
offiCiOUS testament. Civil law. A will that disposes of
property to the testator's family; a will that reserves
the legitime for the testator's children and other
natural heirs. Also termed officious will. See
LEGITIME.
sealed testament. See mystic will under WILL.
secret testament. See mystic will under WILL.
testamentary (tes-ta-men-ta-ree or -tree), adj. (l4c) 1. Of
or relating to a will or testament <testamentary intent>.
[Cases: Wills 2. Provided for or appointed
by a will <testamentary guardian>. 3. Created by a will
<testamentary
testamentary capacity. See CAPACITY (3). testamentary class. See CLASS (3).
testamentary condition. See CONDITION (2).
testamentary disposition. See DISPOSITION (1).
testamentary gift. See GIFT.
testamentary guardian. See GUARDIAN.
testamentary heir. See HEIR.
testamentary instrument. See WILL.
testamentary intent. See INTENT (1).
testamentary |
HEIR.
testamentary instrument. See WILL.
testamentary intent. See INTENT (1).
testamentary power of appointment. See POWER OF
APPOINTMENT.
testamentary succession. See SUCCESSION (2).
testamentary transfer. See TRANSFER.
testamentary trust. See TRUST.
testamentary trustee. See TRUSTEE (1).
testamenti factio (tes-ta-men-tI fak-shee-oh). [Latin
"right to make a testament"] Roman law. 1. Broadly,
the capacity to take part in a will, as testator, heir, or
witness. 2. The capacity to make a will, open to any
citizen, male or female, sui juris, and over puberty.
This term is sometimes known as "active" testa
menti Jactio or testamenti factio activa, though the
latter phrase was not known to the Roman law. 3. The
capacity to receive property by will. Junian Latini and
peregrini did not have this capacity. It is also known as
"passive" testamenti factio or testamenti factia passiva,
though the latter phrase was (like testamenti factio
activa) unknown to the Roman law. 4. The capacity to
witness a will. -Women did not have this capacity.
Also termed factto testamenti.
"Under the civil law, this was a power ... vested only in the
Roman citizen ... The testamenti factio was necessary to
any participation whatever in a testament. Without it, no
one could make a will, or take a legacy, or even be a witness
to the execution of a will .... In Scotch law, this phrase can
only signify the power of making a will. as anyone may be
a beneficiary under another's settlement." John Trayner.
Trayner's Latin Maxims 216-17 (4th ed. 1894).
testamentum (tes-td-men-tam), n. [Latin] Roman law. A
will. In early and classical law, the mancipatory will
was standard. It was still used in the Later Empire but
the in A.D. 446, the holographic will was accepted in the
Western Empire. A will could also be made by registra
tion on the court acta. See holographiC will, mancipa
tory will under WILL.
testamentum calatis comitiis (ka-Iay-tis ka-mish
ee-is). [Latin "will made before the comitia curiata"]
Roman law. In early Rome, a will made before the
comitia curiata, having an effect comparable to
adrogation. -The comitia curjata was known as
the comitia calata when it met twice a year for the
purpose of making wills. See comitia curiata under
COMITIA.
testamentum holografum (tes-ta-men-tam hol-a
graf-am). [Latin] See holographic will under WILL.
testamentum in procinctu (in pra-singk-t[y] 00). [Latin
"will made before the army"] Roman law. A will made
1613
by a soldier before a fellow soldiers while preparing
for battle.
testamentum militum (tes-ta-men-tam mil-a-t<'lm).
[Latin] See soldier's will under WILL.
testamentum tripertitum (trI-Pdf-tl-tdm). [Latin "tri
partite will"] Roman law. A will made without inter
ruption, with seven witnesses to seal it, and signed by
the testator . This form ofwill was valid in Justinian's
law. It was called "tripartite" because the authority
for various parts ofit derived from three sources: the
civil law (requiring that the will be made at one and
the same time before witnesses); the praetor's edict
(requiring that there be seven witnesses and that they
must seal it); and imperial constitutions (requiring
that the testator must sign at the end).
testate (tes-tayt), ad}. (15c) Having left a will at death
<she died testate>. Cf. INTESTATE. [Cases: Wills
1.]
testate, n. See TESTATOR.
testate succession. See SUCCESSION (2).
testatio mentis (tes-tay-shee-oh men-tis), n. [LatinJ Hist.
An expression of a testator's mind; a testament.
testation (te-stay-shdn). 1. The disposal of property by
will; the power to dispose ofproperty by will. 2. Archaic.
Attestation; a witnessing. [Cases: Wills \;~1.]
testator (tes-tay-tdr also te-stay-tdr). (14c) A person who
has made a will; esp., a person who dies leaving a wilL
Because this term is usu. interpreted as applying to
both sexes, testatrix has become archaic. -Also termed
testate. Cf. INTESTATE. [Cases: Wills
testatrix (te-stay-triks or tes-t<'l-triks). Archaic. A female
testator. In modern usage, a person who leaves a will
is called a testator, regardless of sex. PI. testatrixes,
testatrices.
testatum (tes-tay-t<'lm). [Latin "attested"] 1. A writ issued
in a county where a defendant or a defendant's property
is located when venue lies in another county. This
writ, when issued after a ground writ, allowed the
seizure ofthe defendant or the defendant's property in
another county. -Also termed writ oftestatum fieri
facias; writ fi. fa.; testatum bill; testatum writ; latitat
(lat-a-tat). Cf. ground writ under WRIT.
"But if the defendant had removed into another county, the
next process the plaintiff might sue out against him was
a testatum bill, directed to the sheriff thereof, which soon
gained the name of a latitat, from that word being within
it." 1 George Crompton, Practice Common Placed: Rules and
Cases ofPractice in the Courts ofKing's Bench and Common
Pleas xxxv (3d ed. 1787).
2. The operative part of a deed by which the seller
acknowledges the amount and receipt of the purchase
money, whether or not the buyer has actually paid any
money to the seller. Also termed witnessing part.
testatum clause. See TESTIMONIUM CLAUSE.
testatus (tes-tay-tas), n. [Latin] Civil law. See TESTATOR.
test case. See CASE. testimony
teste (tes-tee). [Latin teste meipso "I myself being a
witness"] 1. In drafting, the clause that states the name
of a witness and evidences the act ofwitnessing. -Also
termed teste o.fprocess; teste ofwrit. 2. The final clause
in a royal writ naming the person who authorizes
the affixing of the king's seal. The clause generally
contains the place and date of the sealing. When the
monarch authenticates the sealing, the clause begins
with the phase teste meipso ("by my own witness").
Otherwise, the authenticator states his or her name
and office.
teste meipso. See TESTE (2).
testifier. One who testifies; WITNESS. Also termed
(archaically) testificator (tes-ta-fi-kay-tar).
testify, vb. (14c) 1. To give evidence as a witness <she tes
tified that the Ford Bronco was at the defendant's home
at the critical time>. [Cases: Witnesses (;::'224.J 2. (Of
a person or thing) to bear witness <the incomplete log
entries testified to his sloppiness>.
testifying expert. See EXPERT.
testimonial evidence. 1. See TESTIMONY. 2. See EVI
DENCE.
testimonial immunity. See IMMUNITY (3).
testimonial incapacity. See INCAPACITY.
testimonial privilege. See PRIVILEGE (1).
testimonial proof. See PROOF.
testimonium clause. (1823) A provision at the end of
an instrument (esp. a will) reciting the date when the
instrument was signed, by whom it was Signed, and
in what capacity. _ This clause traditionally begins
with the phrase "In witness whereof." -Also termed
testatum clause; witness clause. Cf. ATTESTATION
CLAUSE. [Cases; Wills C--, 111(2).]
testimony, n. (14c) Evidence that a competent witness
I under oath or affirmation gives at trial or in an affida
vit or deposition. -Also termed testimonial evidence;
personal evidence. [Cases; Federal Civil Procedure
2011; Trial ~33;Witnesses ~224.J -testimonial,
adj.
affirmative testimony. (1806) Testimony about whether
something occurred or did not occur, based on what
the witness saw or heard at the time and place in
question. -Also termed positive testimony; (formerly)
statement offact. See direct evidence under EVIDENCE.
[Cases: Evidence ~586.1
cumulative testimony. (1818) Identical or similar testi
mony by more t han one witness, and usu. by several,
offered by a party usu. to impress the jury with the
apparent weight of proof on that party's side . The
trial court typically limits cumulative testimony.
[Cases: Criminal Law \;=>675; Federal Civil Proce
dure ~2011; Trial e:-~'56.]
dropsy testimony. (1970) Slang. A police officer's false
testimony that a fleeing suspect dropped an illegal
substance that was then confiscated by the police and
used as probable cause for arresting the suspect.
1614 testing clause
Dropsytestimony is sometimes given when an arrest
has been made without probable cause, as when illegal
substances have been found through an improper
search.
"Before [Mapp v. Ohio, 367 U.S. 643 (1961)]. the policeman
typically testified that he had stopped the defendant for
little or no reason, searched him, and found narcotics on
his person. This had the ring of truth. It was an illegal
search (not based upon 'probable cause'), but the eVidence
was admissible because Mapp had not yet been decided.
Since it made no difference, the policeman testified truth
fully. After, the decision in Mapp it made a great deal of
difference. [~l For the first few months, New York police
men continued to tell the truth about the circumstances
of their searches, with the result that eVidence was sup
pressed. Then the police made the great discovery that if
the defendant drops the narcotics on the ground, after
which the policeman arrests him, then the search is reason
able and the evidence is admissible. Spend a few hours in
the New York City Criminal Court nowadays and you will
hear case after case in which a policeman testifies that the
defendant dropped the narcotiCS on the ground whereupon
the policeman arrested him. I'll Usually the very language
of the testimony is identical from one case to another. This
is now known among defense lawyers and prosecutors as
'dropsy' testimony. The judge has no reason to disbelieve
it in any particular case, and of course the judge must
decide each case on its own evidence, without regard to the
testimony in other cases. Surely, though, not in every case
was the defendant unlucky enough to drop his narcotics."
Irving Younger, ''The Perjury Routine," The Nation, May 3,
1967, at 596-97.
expert testimony. See expert evidence under EVIDENCE.
false testimony. (16c) Testimony that is untrue. 1his
term is broader than perjury, which has a state-of
mind element. Unlike perjury, false testimony does
not denote a crime. Also termedfalse evidence.
interpreted testimony. Testimony translated because
the witness cannot communicate in the language of
the tribunal. [Cases: Witnesses
lay opinion testimony. (I942) Evidence given by a
witness who is not qualified as an expert but who
testifies to opinions or inferences. In federal court,
the admiSSibility of this testimony is limited to
opinions or inferences that are rationally based on
the witness's perception and that will be helpful to
a clear understanding of the witness's testimony or
the determination ofa fact in issue. Fed. R. Evid. 70l.
[Cases: Criminal Law 449.1-467; Evidence (;=:.
470-503.]
mediate testimony. See secondary evidence under
EVIDENCE.
negative testimony. See negative evidence under
EVIDENCE.
nonverbal testimony. (1922) A photograph, draWing,
map, chart, or other depiction used to aid a witness in
testifying. lhe witness need not have made it, but it
must accurately represent something that the witness
saw. See demonstrative evidence under EVIDENCE.
[Cases: Criminal Law (;=:437, 438; Evidence
358,359.]
opinion testimony. (1925) Testimony based on one's
belief or idea rather than on direct knowledge of the facts at issue. Opinion testimony from either
a lay witness or an expert witness may be allowed
in evidence under certain conditions. See opinion
evidence under EVIDENCE. [Cases: Criminal
448-494; Evidence (;=>470-574.]
positive testimony. See affirmative testimony.
testimony de bene esse (dee bee-nee es-ee also day
ben-ay es-ay). (1805) Testimony taken because it is
in danger ofbeing lost before it can be given at a trial
or hearing, usu. because of the impending death or
departure of the witness. Such testimony is taken
in aid ofa pending case, while testimony taken under
a bill to perpetuate testimony is taken in anticipation
offuture litigation. See deposition de bene esse under
DEPOSITION. [Cases: Federal Civil Procedure (;=> 1291;
Pretrial Procedure
written testimony. (17c) 1. Testimony given out ofcourt
by deposition or affidavit. The recorded writing,
Signed by the witness, is considered testimony. [Cases:
Federal Civil Procedure (;::;> 1432; Pretrial Procedure
( |
. [Cases:
Federal Civil Procedure (;::;> 1432; Pretrial Procedure
(;=:201.] 2. In some administrative agencies and
courts, direct narrative testimony that is reduced to
writing, to which the witness swears at a hearing or
trial before cross-examination takes place in the tra
ditional way. [Cases: Administrative Law and Proce
dure (;=:461; Federal Civil Procedure (..'-:>2011; Trial
(;=:33.J
testing clause. Scots law. The clause at the end ofa formal
written instrument or deed by which it is authenticated
according to the forms oflaw . Traditionally, the clause
states the name and address of the writer, the number
ofpages in the instrument, any alterations or erasures,
the names and addresses ofthe witnesses, the name and
address ofthe person who penned the instrument, and
the date and place of signing.
testis. [Latin] Hist. A witness. Pi. testes.
test oath. See oath ofallegiance under OATH.
test paper. A writing that has been proved genuine and
submitted to a jury as a standard by which to deter
mine the authenticity of other writings. The court
decides the test paper's authenticity as a matter oflaw
before it is used by the jury. Direct evidence, such as a
witness to the writing's creation or an admission by the
party, is preferred, but strong circumstantial evidence
is usu. acceptable. In Pennsylvania, a paper or instru
ment shown to the jury as evidence is still called a test
paper (sometimes written test-paper).
Texas ballot. See BALLOT (4).
textbook digest. (I922) A legal text whose aim is to set
forth the law ofa subject in condensed form, with little
or no criticism or discussion of the authorities cited,
and no serious attempt to explain or reconcile appar
ently conflicting decisions.
textual citation. See CITATION (4).
textualism. See strict constructionism under CONSTRUC
TIONISM.
1615 theocracy
thalweg (tahl-vayk or -veg). (1831) 1. A line following the
lowest part ofa (usu. submerged) valley. 2. The middle
ofthe primary navigable channel of a waterway, con
stituting the boundary between states. Also spelled
talweg. Also termed midway. [Cases: States
12.1.]
live thalweg. The part of a river channel that is most
followed, usu. at the middle ofthe principal channel.
Louisiana v. Mississippi, 466 U.S. 96, 104 S.Ct. 1645
(1984).
Thayer presumption. (1958) A presumption that allows
the party against whom the presumption operates to
come forward with evidence to rebut the presumption,
but that does not shift the burden ofproofto that party.
See James B. Thayer, A Preliminary Treatise on Evidence
31-44 (1898). Most presumptions that arise in civil
trials in federal court are interpreted in this way. Fed. R.
Evid. 301. Cf. MORGAN PRESUMPTION. [Cases: Criminal
Law Evidence (;:=>85, 89.]
The Federalist. See FEDERALIST PAPERS.
theft, n. (bef. 12c) 1. The felonious taking and removing
ofanother's personal property with the intent ofdepriv
ing the true owner of it; larceny. [Cases: Larceny C::>
1.] 2. Broadly, any act or instance ofstealing, including
larceny, burglary, embezzlement, and false pretenses.
Many modern penal codes have consolidated such
property offenses under the name "theft." Also
termed (in Latin) crimen furti. See LARCENY. Cf.
ROBBERY.
"[Tlhe distinctions between larceny, embezzlement and
false pretenses serve no useful purpose in the criminal
law but are useless handicaps from the standpoint of the
administration of criminal justice. One solution has been
to combine all three in one section of the code under the
name of 'larceny.' This has one disadvantage, however,
because it frequently becomes necessary to add a modifier
to make clear whether the reference is to common-law
larceny or to statutory larceny. To avoid this difficulty
some states have employed another word to designate a
statutory offense made up of a combination of larceny,
embezzlement, and false pretenses. And the word used
for this purpose is 'theft.' 'Theft' is not the name of any
common-law offense. At times it has been employed as
a synonym of 'larceny,' but for the most part has been
regarded as broader in its general scope. Under such a
statute it is not necessary for the indictment charging theft
to specify whether the offense is larceny, embezzlement
or false pretenses." Rollin M. Perkins & Ronald N. Boyce,
Criminal Law 389-90 (3d ed. 1982).
cybertheft. See CYBERTHEFT.
identity theft. See IDENTITY THEFT.
petty theft. A theft of a small quantity of cash or of
low-value goods or services. This offense is usu. a
misdemeanor. [Cases: Larceny
theft by deception. (1930) The use oftrickery to obtain
another's property, esp. by (1) creating or reinforc
ing a false impression (as about value), (2) prevent
ing one from obtaining information that would affect
one's judgment about a transaction, or (3) failing to
disclose, in a property transfer, a known lien or other
legal impediment. Model Penal Code 223. [Cases:
False Pretenses 1.] theft by extortion. (1969) Larceny in which the perpe
trator obtains property by threatening to (1) inflict
bodily harm on anyone or commit any other criminal
offense, (2) accuse anyone of a criminal offense, (3)
expose any secret tending to subject any person to
hatred, contempt, or ridicule, or impair one's credit
or business reputation, (4) take or withhold action
as an official, or cause an official to take or withhold
action, (5) bring about or continue a strike, boycott,
or other collective unofficial action, ifthe property is
not demanded or received for the benefit ofthe group
in whose interest the actor purports to act, (6) testify
or provide information or withhold testimony or
information with respect to another's legal claim or
defense, or (7) inflict any other harm that would not
benefit the actor. Model Penal Code 223.4. Also
termed larceny by extortion. See EXTORTION. [Cases:
Extortion and Threats C::>25.1.]
theft by false pretext. The use ofa false pretext to obtain
another's property. [Cases: False Pretenses C=:> 1.)
theft ofproperty lost, mislaid, or delivered by mistake.
(1973) Larceny in which one obtains control of
property the person knows to be lost, mislaid, or
delivered by mistake (esp. in the amount ofproperty
or identity of reCipient) and fails to take reasonable
measures to restore the property to the rightful owner.
Model Penal Code 223.5. Also termed larceny of
property lost, mislaid, or delivered by mistake. [Cases:
Larceny ~-:>10.]
theft ofservices. (1946) The act of obtaining services
from another by deception, threat, coercion, stealth,
mechanical tampering, or using a false token or
device. See Model Penal Code 223.7.
theftbote. (theft-boht) See BOTE (2).
theftuous (thef-choo-Js), adj. 1. (Of an act) character
ized by theft. 2. (Of a person) given to stealing. Also
spelled theftous.
thence, adv. (Bc) 1. From that place; from that time . In
surveying, and in describing land by courses and dis
tances, this word, preceding each course given, implies
that the follOWing course is continuous with the one
before it <south 240 feet to an iron post, thence west
59 feet>. 2. On that account; therefore.
thence down the river. (16c) With the meanders of a
river. This phrase appears in the field notes ofpatent
surveyors, indicating that the survey follows a mean
dering river unless evidence shows that the meander
line as written was where the surveyor in fact ran it.
Meander lines show the general course ofthe river and
are used in estimating acreage, but are not necessarily
boundary lines. See MEANDER LINE. [Cases: Boundar
ies 12.]
theocracy (thee-ok-rJ-see). (l7c) 1. Government ofa
state by those who are believed to be or represent that
they are acting under the immediate direction ofGod
or some other divinity. 2. A state in which power is
exercised by ecclesiastics.
Theodosian Code (thee-;:l-doh-sh;:m). Roman law. A
compilation of imperial enactments prepared at the
direction of the emperor Theodosius II and published
in A.D. 438. The Theodosian Code replaced all other
imperial legislation from the time of Constantine I
(A.D. 306-337), and remained the basis of Roman law
until it was superseded by the first Justinian Code in
A.D. 529. Also termed (in Latin) Codex Theodosianus
(koh-deks thee-d-doh-shee-ay-n<ls).
"As a literary work the Theodosian Code has a dismal
reputation .... Some quaestors possessed an elegant,
powerful, or agreeably ornate style.... Against these
may be set others with literary pretensions whose prose is
ponderous or marred by excessive alliteration, assonance,
pleonasm, or fondness for technical terms, or whose com
positions are in other ways inept." Tony Honore, Law in the
Crisis of the Empire 379-455 AD 21 (1998).
theolonio. See DE THEOLONIO.
theory of law. The legal premise or set of principles on
which a case rests.
theory-of-pleading doctrine. (1956) The principle-
now outmoded -that one must prove a case exactly
as pleaded . Various modern codes and rules of civil
procedure have abolished this strict pleading-and-proof
requirement. For example, Fed. R. Civ. P. 15 allows
amendment of pleadings to conform to the evidence.
lCases: Federal Civil Procedure (;='881; Pleading
370.]
theory ofthe case. (1800) A comprehensive and orderly
mental arrangement ofprinciples and facts, conceived
and constructed for the purpose ofsecuring a judgment
or decree ofa court in favor ofa litigant; the particular
line of reasoning of either party to a suit, the purpose
being to bring together certain facts of the case in a
logical sequence and to correlate them in a way that
produces in the decision-maker's mind a definite result
or conclusion favored by the advocate. See CAUSE OF
ACTION (1).
therapeutic abortion. See ABORTION.
therapeutic jurisprudence. See JURISPRUDENCE.
therapeutic relief. See RELIEF.
therapeutics. See therapeutic relie/under RELIEF.
thereabouts, adv. (bef. 12c) Near that time or place
<Schreuer was seen in Rudolf Place or thereabouts>.
Also termed thereabout.
thereafter, adv. (bef. 12c) Afterward; later <Skurry was
thereafter arrested>.
thereat, adv. (bef. 12c) 1. At that place or time; there. 2.
Because ofthat; at that occurrence or event.
thereby, adv. (bef. 12c) By that means; in that way
<B1ofeld stepped into the embassy and thereby found
protection>.
therefor, adv. (bef. 12c) For it or them; for that thing or
action; for those things or actions <she lied to Congress
but was never punished therefor>.
therefore, adv. (l4c) 1. For that reason; on that ground or
those grounds <a quorum was not present; therefore, no vote was taken>. 2. To that end <she wanted to become
a tax lawyer, and she therefore applied for the univer
sity's renowned LL.M. program in taxation>. Also
termed thereupon.
therefrom, adv. (l3c) From that, it, or them <Hofer had
several financial obligations to Ricks, who refused to
release Hofer therefrom>.
therein, adv. (bef. 12c) l. In that place or time <the
Dallas/Fort Worth metroplex has a population ofabout
3 million, and some 20,000 lawyers practice therein>.
2. Inside or within that thing; inside or within those
things <there were 3 school buses with 108 children
therein>. 3. In that regard, circumstance, or particular
<therein lies the problem>.
thereinafter, adv. (1818) Later in that thing (such as a
speech or document) <the book's first reference was
innocuous, but the five references thereinafter were
libelous per se>.
thereof, adv. (bef. 12c) Of that, it, or them <although
the disease is spreading rapidly, the cause thereof is
unknown>.
thereon, adv. (bef. 12c) On that or them <Michaels
found the online reports of the cases and relied thereon
instead ofchecking the printed books>. Also termed
thereupon.
thereto, adv. (bef. 12c) To that place, thing, issue, or the
like <the jury awarded $750,000 in actual damages,
and it added thereto another $250,000 in punitive
damages>. -Also termed thereunto.
theretofore, adv. (14c) Until that time; before that time
<theretofore, the highest award in such a case has been
$450,000>.
thereunder, adv. (bef. 12c) Under that or them <on the
top shelf were three books, and situated thereunder was
the missing banknote> |
12c) Under that or them <on the
top shelf were three books, and situated thereunder was
the missing banknote> <section 1988 was the relevant
fee statute, and the plaintiffs were undeniably proceed
ing thereunder>.
thereunto, adv. See THERETO.
thereupon, adv. (l3c) 1. Immediately; without delay;
promptly <the writ ofexecution issued from the court,
and the sheriff thereupon sought to find the judgment
debtor>. 2. THEREON. 3. THEREFORE.
thesauri inventio (thi-sawr-I in-ven-shee-oh). [Latin
"discovery of treasure"] Roman law. The principle
according to which the finder of treasure acquires full
or partial ownership ofit.
thesaurus (thi-sawr-<ls), n. [Latin] Roman law. I.
Treasure; speciL valuables that have been hidden for
so long that the owner's identity can no longer be estab
lished. 2. A storehouse. PI. thesauri.
Thibodaux abstention (tib-;:l-doh). See ABSTENTION.
thief. (bef. 12c) One who steals, esp. without force
or violence; one who commits theft or larceny. See
THEFT.
1617
common thief. (l6c) A thief who has been convicted
of theft or larceny more than once. -Also termed
common and notorious thief.
manifest thief. See FUR MANIFESTUS.
thieve, vb. (bef. 12c) To steal; to commit theft or larceny.
See THEFT.
thievery. The act or practice of stealing.
thimblerig. See SHELL GAME.
thimbles and balls. See SHELL GAME.
thin capitalization. See CAPITALIZATION.
thin corporation. See CORPORATION.
thing. (bef. 12c) 1. The subject matter of a right, whether
it is a material object or not; any subject matter ofown
ership within the sphere of proprietary or valuable
rights . Things are divided into three categories: (1)
things real or immovable, such as land, tenements, and
hereditaments, (2) things personal or movable, such
as goods and chattels, and (3) things having both real
and personal characteristics, such as a title deed and
a tenancy for a term. 'Ibe civil law divided things into
corporeal (tangi possunt) and incorporeal (tangi non
possunt). La. Civ. Code art. 461. [Cases: Property (';=:
1.]
accessory thing. A thing that stands in a dependency
relationship with another thing (the principal thing).
An accessory thing ordinarily serves the economic
or other purpose ofthe principal thing and shares its
legal fate in case of transfer or encumbrance.
corporeal thing. (17c) The subject matter of corporeal
ownership; a material object. -Also termed res cor
porales; tangible thing.
immovable thing. See IMMOVABLE.
incorporeal thing. (17c) The subject matter ofinc or po
real ownership; any proprietary right apart from the
right offull dominion over a material object. Also
termed res incorporale; intangible thing.
movable thing. See MOVABLE (1).
real things. See REAL THINGS.
thing in action. See chose in action under CHOSE.
thing in possession. See chose in posseSSion under
CHOSE.
2. Anything that is owned by someone as part of that
person's estate or property. -Also termed res; chose.
thing in action. See chose in action under CHOSE.
thing in possession. See chose in possession under
CHOSE.
things mancipi. See RES MANCIPI.
things nee mancipi. See RES NEC MANCIP!.
things personal. See personal property (1) under
PROPERTY.
things real. See REAL THINGS.
thin market. See MARKET.
thin-skull rule. See EGGSHELL-SKULL RULE. third-party consent
Third Amendment. The constitutional amendment,
ratified as part of the Bill of Rights in 1791, prohibit
ing the quartering of soldiers in private homes except
during wartime.
third cousin. See COUSIN.
third degree, n. (1900) The process of extracting a con
fession or information from a suspect or prisoner by
prolonged questioning, the use of threats, or physical
torture <the police gave the suspect the third degree>.
third-degree instruction. See ALLEN CHARGE.
third-degree murder. See MURDER.
third estate. Property. A landowner's right to have the
land supported below the surface against subsidence
when it is undermined by tunnels, such as those made
for mining operations. _ The phrase appears most fre
quently in Pennsylvania, where the common law tra
ditionally recognizes three estates in land: the surface
(first or surface estate), the minerals (second or mineral
estate), and an estate in the support of the surface (the
third estate). The third estate originated with the com
mon-law duty of miners to support the surface estate.
[Cases: Mines and Minerals C=;:;55(6).]
third opposition. Civil law. A species of intervention,
usu. in a real-property case, in which the third party
asserts a claim of ownership or other real right to
seized property, and the claim does not depend on the
outcome of the original suit between the plaintiff and
the defendant. La. Code Civ. Proc. art. 1092. See, e.g.,
Atkins v. Smith, 15 So. 2d 855 (La. 1943). See INTER
VENTION (1).
third party, n. (1818) A person who is not a party to
a lawsuit, agreement, or other transaction but who is
usu. somehow implicated in it; someone other than the
principal parties. Also termed outside party; third
person. See PARTY. [Cases: Federal Civil Procedure
281; Parties (;:.:>49.] -third-party, adj.
third-party, vb. (1965) To bring (a person or entity) into
litigation as a third-party defendant <seeking indem
nity, the defendant third-partied the surety>. [Cases:
Federal Civil Procedure (;::::>281; Parties (';=:49.]
third-party action. See ACTION (4).
third-party beneficiary. See BENEFICIARY.
third-party-beneficiary contract. See CONTRACT.
third-party business-buyout agreement. See AGREE
MENT.
third-party check. (1904) A check that the payee indorses
to another party -for example, a customer check that
the payee indorses to a supplier. - A person who takes a
third-party check in good faith and without notice ofa
security interest can be a holder in due course.
third-party complaint. See COMPLAINT.
third-party consent. (1942) A person's agreement to
official action (such as a search of premises) that affects
another person's rights or interests . To be effective
for a search, third-party consent must be based on the
consenting person's common authority over the place
1618 third-party defendant
to be searched or the items to be inspected. See COM
MON-AUTHORITY RULE. [Cases: Searches and Seizures
third-party defendant. (1927) A party brought into a
lawsuit by the original defendant. [Cases: Federal Civil
Procedure (;=-"'281; Parties <::=49.]
third-party equity lease. See leveraged lease under
LEASE.
third-party insurance. See liability insurance under
INSURANCE.
third-party logistical service provider. See FREIGHT
FORWARDER. Abbr. TPL.
third-party plaintiff. (1857) A defendant who files a
pleading in an effort to bring a third party into the
lawsuit. See third-party complaint under COMPLAINT.
[Cases: Federal Civil Procedure <::=281; Parties
49.]
third-party practice. See IMPLEADER.
third-party record-custodian summons. See John Doe
summons under SUMMONS.
third-party standing. See STANDING.
third person. See THIRD PARTY.
third possessor. Civil law. A person who acquires mort
gaged property but is not personally bound by the obli
galion secured by the mortgage. [Cases: Mortgages
277.]
Third World. Int'llaw. l. DEVELOPING COUNTRY. 2. The
group of nations (esp. in Africa and Asia) not aligned
with major powers, whether Western democracies (Le.,
the First -or Free World) or countries that were
formerly part ofthe Soviet bloc (Le., the Second World).
Although Third World nations are often underde
veloped, the term Third World may denote only their
political rather than their economic status.
Third World country. See DEVELOPING COUNTRY.
Thirteenth Amendment. The constitutional amendment,
ratified in 1865, that abolished slaverv and involuntarv
servitude. [Cases: Constitutional La~C=~1l01.] ,
"The thirteenth amendment is fairly unique in two respects.
First, it contains an absolute bar to the existence of slavery
or involuntary servitude; there is no requirement of 'state
action.' Thus it is applicable to individuals as well as
states .... Secondly, like the fourteenth and fifteenth
amendments, it contains an enforcement clause, enabling
Congress to pass all necessary legislation." John E. Nowak
& Ronald D. Rotunda, Constitutional Law 15.6, at 918
(4th ed. 1991).
30(b)(6) deposition. See DEPOSITION.
thirty-day letter. (1929) A letter that accompanies a
revenue agent's report issued as a result of an Internal
Revenue Service audit or the rejection of a taxpayer's
claim for refund and that outlines the taxpayer's appeal
procedure before the Internal Revenue Service . Ifthe
taxpayer does not request any such procedure within
the 30-day period, the IRS will issue a statutory notice
ofdeficiency. Cf. NINETY-DAY LETTER. [Cases: Internal
Revenue (;::::c4542.1, 5044.] threat, n. (bef. 12c) 1. A communicated intent to inflict
harm or loss on another or on another's property, esp.
one that might diminish a person's freedom to act vol
untarily or with lawful consent <a kidnapper's threats
ofviolence>. [Cases: Extortion and Threats (.;::::025.1.]
terroristic threat. (1959) A threat to commit any
crime of violence with the purpose of (l) terroriz
ing another, (2) causing the evacuation ofa building,
place ofassembly, or facility ofpublic transportation,
(3) causing serious public inconvenience, or (4) reck
lessly disregarding the risk ofcausing such terror or
inconvenience. Model Penal Code 211. See TERROR
ISM. [Cases: Extortion and Threats
2. An indication ofan approaching menace <the threat
of bankruptcy>. 3. A person or thing that might well
cause harm <Mrs. Harrington testified that she had
never viewed her husband as a threat>. threaten,
vb. threatening, adj.
threatened species. See SPECIES (1).
threat of continuing harm. See CONTINUING THREAT
OF HARM.
threat of continuing injury. See CONTINUING THREAT
OF HARM.
three estates, the. See ESTATES OF THE REALM (1).
threefold ordeal. See triple ordeal under ORDEAL.
312 amendment. See amendment after allowance under
PATENT-APPLICATION AMENDMENT.
341 meeting. See creditors' meeting under MEETING.
three-judge court. See COURT.
three-mile limit. The distance ofone marine league or
three miles offshore, usu. recognized as the limit ofter
ritorial jurisdiction. [Cases: International Law:::::=:5.]
three-step test. Copyright. An analysis of an infringe
ment defense under TRIPs and the Berne Convention,
looking at whether the defendant's use of a protected
work (1) is inherently limited to special cases, (2) did
not conflict with the owner's normal exploitation ofthe
work, and (3) did not unreasonably prejudice the legiti
mate interests of the owner . The test is analogous to
the analysis under the fair-use doctrine in U.S. law.
three-strikes law. (1984) Slang. A statute prescribing
an enhanced sentence, esp. life imprisonment, for a
repeat offender's third felony conviction . About half
the states have enacted a statute of this kind. -Also
termed three-strikes-and-you're-out law. [Cases: Sen
tencing and Punishment (;::::c 1200-1219.]
three wicked sisters. Slang. The three doctrines
contributory negligence, the fellow-servant rule, and
assumption of the risk used by 19th-century courts
to deny recovery to workers injured on the job.
"These three common law defenses, contributory negli
gence, fellow servant rule, and assumption of the risk,
became known as the 'three wicked sisters,' because of
their preclusive effect on the ability of injured workers to
recover.... By precluding application of the traditional
respondeat superior concept for acts of fellow servants and
by presuming that workers assumed the risks associated
with their employment, courts made it extremely difficult
1619 tiered partnership
for employees to recover from their employers for the
increasing number of work-related injuries .... By the late
18005, courts began to recognize the harsh results gener
ated by rote application of the fellow servant, assumption
of the risk, and contributory negligence doctrines." Mark A.
Rothstein et aI., Employment Law 7.2, at 404 (1994).
threshold. Parliamentary law. The number or proportion
of votes needed for election.
threshold confession. See CONFESSION.
thrift institution. |
law. The number or proportion
of votes needed for election.
threshold confession. See CONFESSION.
thrift institution. See SAVINGS-AND-LOAN ASSOCIA
TION.
through bill oflading. See BILL OF LADING.
through lot. A lot that abuts a street at each end.
through rate. The total shipping cost when two or more
carriers are involved. _ The carriers agree in advance
on a through rate, which is typically lower than the sum
of the separate rates. [Cases: Carriers (;::::> 12(2),29.)
throwaway, n. Slang. 1. An unemancipated minor whose
parent or caregiver has forced him or her to leave home.
2. A runaway whose parent or caregiver refuses to allow
him or her to return home. Cf. RUNAWAY.
throwback rule. (1972) Tax. l. In the taxation oftrusts,
a rule requiring that an amount distributed in any tax
year that exceeds the year's distributable net income
must be treated as ifit had been distributed in the pre
ceding year. -The beneficiary is taxed in the current
year although the computation is made as ifthe excess
had been distributed in the previous year. If the trust
did not have undistributed accumulated income in the
preceding year, the amount ofthe throwback is tested
against each of the preceding years. IRC (26 USCA)
665-66S. [Cases: Internal Revenue (;::::>4019.] 2. A
taxation rule requiring a sale that would otherwise be
exempt from state income tax (because the state to
which the sale would be assigned for apportionment
purposes does not have an income tax, even though
the seller's state does) to be attributed to the seller's
state and thus subjected to a state-level tax. _ This rule
applies only if the seller's state has adopted a throw
back rule.
throw out, vb. (1817) To dismiss (a claim or lawsuit).
thrust-upon conflict. See CONFLICT OF INTEREST.
thumbprint. See FINGERPRINT.
ticket, n. 1. A certificate indicating that the person to
whom it is issued, or the holder, is entitled to some right
or privilege <she bought a bus ticket for Miami>. 2.
CITATION (2) <he got a speeding ticket last week>. 3.
BALLOT (2) <they all voted a straight-party ticket>.
ticket of leave. Archaic. The English equivalent of
parole.
ticket-of-leave man. A convict who has obtained a ticket
ofleave.
ticket speculator. A person who buys tickets and then
resells them for more than their face value; in slang, a
scalper. See SCALPER (1).
tidal, adj. Affected by or having tides. _ For a river to be
"tidal" at a given spot, the water need not necessarily be salt, but the spot must be one where the tide, in
the ordinary and regular course of things, flows and
reflows.
tide. The rising and falling of seawater that is produced
by the attraction of the sun and moon, uninfluenced
by special winds, seasons, or other circumstances that
create meteorological and atmospheric meteorological
tides; the ebb and flow of the sea. -Tides are used to
measure a shore's upland boundary.
lower low tide. The lowest point of the daily tide.
mean high tide. lhe average ofall high tides, esp. over
a period of 18.6 years. Also termed ordinary high
tide.
mean lower low tide. The average of lower low tides
over a fixed period.
mean low tide. Ihe average of all low tides both low
and lower low over a fixed period.
neap tide (neep). A tide, either high tide or low tide,
that is lower than average because it occurs during
the first or last quarter of the moon, when the sun's
attraction partly counteracts the moon's.
ordinary high tide. See mean high tide.
spring tide. A tide, either high tide or low tide, that is
higher than average because it occurs during the new
moon and full moon.
tideland. (ISc) Land between the lines of the ordinary
high and low tides, covered and uncovered successively
by the ebb and flow of those tides; land covered and
uncovered by the ordinary tides. [Cases: Navigable
Waters (;::::>36(3).]
tidesman. English law_ A customhouse officer appointed
to watch or attend upon ships until the customs are
paid. - A tidesman boards a ship at its arrival in the
mouth of the Thames and comes up with the tide. See
CUSTOMHOUSE.
tidewater. (lSc) Water that falls and rises with the ebb
and flow of the tide. -The term is not usu. applied to
the open sea, but to coves, bays, and rivers.
tideway. (ISc) Land between high-and low-water marks.
[Cases: Navigable Waters (;::::> 36(3).)
tie, n. 1. An equal number of votes for two candidates
in an election. [Cases: Elections C:::;23S.] 2. An equal
number of votes cast for and against a particular
measure by a legislative or deliberative body. -In the
U.S. Senate, the Vice President has the deciding vote
in the event of a tie. U.S. Const. art.!, 3. See tie vote
under VOTE.
tied product. See TYING ARRANGEMENT (1).
tied service. See TYING ARRANGEMENT (1).
tie-in arrangement. See TYING ARRANGEMENT.
tiempo inhabil. Hist. Louisiana law. The time at which
a person becomes insolvent.
tiercear. See TERCER.
tiered partnership. See PARTNERSHIP.
tie vote. See VOTE (3).
TIF. abbr. TAX-INCREMENT FINANCING.
tight, adj. Slang. (Of a note, bond, mortgage, lease, etc.)
characterized by summary and stringent clauses pro
viding the creditor's remedies in case ofdefault.
TILA. abbr. Truth in Lending Act. See CONSUMER CREDIT
PROTECTIO:>l ACT. [Cases: Consumer Credit
tillage (til-ij), n. (1Sc) A place tilled or cultivated; land
under cultivation as opposed to land lying fallow or
in pasture.
till-tapping. (1893) Slang. Theft of money from a cash
register.
timber easement. See EASEMENT.
timber lease. See LEASE.
timber rights. See timber easement under EASEMENT.
time. (bef. 12c) 1. A measure of duration. 2. A point in
or period ofduration at or during which something is
alleged to have occurred. 3. Slang. A convicted crimi
nal's period ofincarceration.
dead time. (1909) Time that does not count for a par
ticular purpose, such as time not included in calculat
ing an employee's wages or time not credited toward
a prisoner's sentence. -The time during which a
prisoner has escaped, for example, is not credited
toward the prisoner's sentence. Also termed nonrun
time. [Cases: Labor and Employment (::::;2311; Sen
tencing and Punishment (::::; 1155-1182.]
earned time. A credit toward a sentence reduction
awarded to a prisoner who takes part in activities
designed to lessen the chances that the prisoner will
commit a crime after release from prison. -Earned
time, which is usu. awarded for taking educational
or vocational courses, working, or participating in
certain other productive activities, is distinct from
good time, which is awarded simply for refraining
from misconduct. Cf. good time. [Cases: Prisons (::::;
243.]
flat time. (1943) A prison term that is to be served
without the benefit oftime-reduction allowances for
good behavior and the like.
good time. (1886) 'Ihe credit awarded to a prisoner for
good conduct, which can reduce the duration of the
prisoner's sentence. Cf. GOOD BEHAVIOR; earned time.
[Cases: Prisons
jail-credit time. See TAIL CREDIT.
nonrun time. See dead time.
street time. The time that a convicted person spends
on parole or on other conditional release. _ If the
person's parole is revoked, this time mayor may not
be credited toward the person's sentence, depending
on the jurisdiction and the particular conditions of
that person's parole. See dead time.
time agreement. 1. A pact made by the party leaders
in the U.S. Senate to limit the time allowed for debate on a bill or amendment. 2. See UNANIMOUS-CONSENT
AGREEMENT.
time arbitrage. See ARBITRAGE.
time-bar, n. (1881) A bar to a legal claim arising from the
lapse ofa defined length of time, esp. one contained in
a statute oflimitations. [Cases: Limitation of Actions
-time-barred, adj.
time-bargain. See FUTURES CONTRACT.
time bill. See time draft under DRAFT.
time certain. 1. A definite, specific date and time. Cf.
DATE CERTAI~. 2. Parliamentary law. A specified time
or condition for which a matter's consideration is
scheduled or to which its consideration is postponed.
See postpone definitely under POSTPONE (3); speCial
order under ORDER (4).
time charter. See CHARTER (8).
time check. See TIMESHEET.
time deposit. See DEPOSIT (2).
time draft. See DRAFT.
time immemorial. (17c) 1. A point in time so far back
that no living person has knowledge or proof contra
dicting the right or custom alleged to have existed since
then. -At common law, that time was fixed as the year
1189, the year that Henry II of England died. -Also
termed time out ofmemory; time out ofmind; time of
memory. 2. A point in time beyond which legal memory
cannot go. See LEGAL MEMORY. 3. A very long time.
time insurance. See INSURANCE.
time is of the essence. See OF THE ESSENCE.
time-is-of-the-essence clause. Contracts. A contrac
tual provision making timely performance a condi
tion. [Cases: Contracts (::::;211; Vendor and Purchaser
Cr'='78.]
time letter ofcredit. See LETTER OF CREDIT.
time loan. See term loan under LOAN.
time note. See NOTE (1).
time of memory. Archaic. See TIME IMMEMORIAL (1).
time option. See OPTION (2).
time order. See ORDER (8).
time out ofmemory. See TIME IMMEMORIAl..
time out ofmind. See TIME IMMEMORIAl..
time-place-or-manner restriction. (1974) Constitu
tionallaw. A government's limitation on when, where,
or how a public speech or assembly may occur, but not
on the content of that speech or assembly. -As long
as such restrictions are narrowly tailored to achieve a
legitimate governmental interest, they do not violate
the First Amendment. Also written time, place, or
manner restriction. Also termed time-place-and
manner restriction. See PUBLIC FORUM.
time policy. See INSURANCE POLICY.
time-price differential. 1. A figure representing the
difference between the current cash price ofan item
1621
and the total cost of purchasing it on credit. [Cases:
Consumer Credit C=>4: Usury C=32.) 2. The dif
ference between a seller's price for immediate cash
payment and a different price when payment is made
later or in installments.
time-price doctrine. The rule that ifa debt arises out of
a purchase and sale, the usury laws do not apply . If
a higher price is charged for a deferred payment than
for an immediate payment, the difference between the
time price and the cash price is deemed compensation
to the seller for the risk that the buyer will default and
for the interest that the seller could have earned on an
immediate payment. Because the buyer can usu. choose
to postpone a purchase and save up the cash price,
the buyer does not have the same status as a needy
borrower who must deal with a potentially predatory
lender. [Cases: Usury (;:::~~32.1
time-sharing, n. (1976) Joint ownership or rental of
property (such as a vacation condominium) by several
persons who take turns occupying the property. - Also
termed time-share. [Cases: Estates in Property C=>l.]
time-share, vb.
timesheet. (1970) 1. An employee's record oftime spent
on the job. 2. An attorney's daily record ofbill able and
non billable hours, used to generate clients' bills. Also
termed (formerly) time check. See BILLABLE HOUR.
time-shifting. The practice of recording a broadcast for
viewing at a later time . Time-shifting was found to
be a noninfringing fair use of videotape recorders in
Sony Corp. v. Universal Studios, Inc., 464 U.S. 417, 104
S.Ct. 774 (1984). [Cases: Copyrights and Intellectual
Property (::::>67.1.]
time unity. See unity oftime under UNITY.
time value. The price associated with the length of
time that an investor must wait until an investment
matures or the related income is earned. Cf. YIELD TO
MATURITY.
timocracy (tI-mok-ra-see). (15c) 1. An aristocracy of
property: government by propertied, relatively rich
people. 2. A government in which the rulers' primary
motive is the love ofhonor.
TIN. abbr. See TAX-IDENTIFICATION NUMBER.
tin parachute. An employment-contract provision that
grants a corporate employee (esp. one below the execu
tive level) severance benefits in the event ofa takeover.
These benefits are typically less lucrative than those
provided under a golden parachute. -Also termed
silver parachute. Cf. GOLDEN PARACHUTE. |
under a golden parachute. -Also termed
silver parachute. Cf. GOLDEN PARACHUTE.
tip, n. 1. A piece of special information; esp., in securi
ties law, advance or inside information passed from one
person to another. See INSIDE INFORMATION: INSIDER
TRADING. [Cases: Securities Regulation (;::::J60.28(2).)
2. A gratuity for service given . Tip income is taxable.
IRC (26 USCA) 6l(a). [Cases: Internal Revenue C'='
3163: Taxation C~3455.1
tippee. Securities. A person who acquires material
nonpublic information from someone in a fidUciary tithe of agistment
relationship with the company to which that infor
mation pertains. [Cases: Securities Regulation C=>
60.28(5).]
tipper. Securities. A person who is in a fiduciary relation
ship with a company that the person possesses material
inside information about, and who selectively discloses
that information for trading or other personal purposes
<the tippee traded 5,000 shares after her conversation
with the tipper>. [Cases: Securities Regulation
60.28(5).]
tippling house. See PUBLIC HOUSE.
TIPS. abbr. See TIPS bond under TREASURY BOND.
tipstaff. A court crier. The name derives from the
crier's former practice of holding a staff tipped with
silver as a badge of office. See CRIER. [Cases: Courts
C=>58.] PI. tipstaves, tipstaifs.
tip-stave. See SERVITOR OF BILLS.
tithe (Bth), n. 1. A tenth of one's income, esp. in ref
erence to a religiOUS or charitable gift or obligation.
[Cases: Religious Societies 2. Hist. A small tax
or assessment, esp. in the amount ofone-tenth. -tithe,
vb. tithable, adj.
"A tithe was the right of a rector to a tenth part of the
produce of all the land in his parish. In some cases a rector
was an individual, while in others the rectory was vested in
a monastery, which appointed a vicar to perform the neces
sary eccleSiastical duties 'vicariously' for the monastery.
On the dissolution of the monasteries in the reign of Henry
VIII many rectories passed into the royal hands and were
granted to laymen; the result was that the right to tithes in
many cases passed into lay hands. Like advowsons, tithes
were deemed to be land in which the various estates could
exist." Robert E. Megarry & P.V. Baker, A Manual of the Law
of Real Property415 (4th ed. 1969).
great tithe. (usu. pI.) A tithe paid in kind and there
fore considered more valuable than other tithes .
The great tithes often consisted of corn, peas, beans,
hay, and wood.
mixed tithes. A tithe consisting of a natural product,
such as milk or wool, obtained or cultivated by human
effort.
"A second species of incorporeal hereditaments is that of
tithes ... the first species being usually called predial, as
of corn, grass, hops, and wood; the second mixed, as of
wool, milk, pigs, etc., consisting of natural products, but
nurtured and preserved in part by the care of man; and of
these the tenth must be paid in gross; the third personal, as
of manual occupations, trades, fisheries, and the like; and
of these only the tenth part of the clear gains and profits
is due." 2 William Blackstone, Commentaries on the Laws
ofEngland 24 (1766).
personal tithe. A tithe ofprofits from manual occupa
tions or trades.
predial tithe. A tithe ofcrops (such as corn). -Also
spelled praedial tithe.
vicarial tithe (vI-kair-ee-al). A small tithe payable to
a vicar.
tithe of agistment (;:)-jist-m;:)nt). Hist. A church-levied
charge on grazing land. The tithe was paid by the
occupier ofthe land rather than the person whose cattle
grazed on the land. See AGISTMENT.
tithing. See DECENARY.
Titius heres esto (Ush-ee-as heer-eez es-toh). [Latin]
Roman law. Let Titius be my heir. The phrase was
the testamentary form for appointing an heir. Titius
was a fictitious name often used by way of example in
legal writing, esp. in forms.
title. (15c) 1. lhe union of all elements (as ownership,
possession, and custody) constituting the legal right to
control and dispose ofproperty; the legal link between
a person who owns property and the property itself
<no one has title to that land>. Cf. OWNERSHIP; pos
SESSION. 2. Legal evidence of a person's ownership
rights in property; an instrument (such as a deed) that
constitutes such evidence <record your title with the
county clerk>.
"Though employed in various ways, [title] is generally
used to describe either the manner in which a right to real
property is acquired, or the right itself. In the first sense, it
refers to the conditions necessary to acquire a valid claim
to land; in the second, it refers to the legal consequences
of such conditions. These two senses are not only inter
related, but inseparable: given the requisite conditions, the
legal consequences or rights follow as of course; given the
rights, conditions necessary for the creation of those rights
must have been satisfied. Thus, when the word 'title' is
used in one sense, the other sense is necessarily implied."
Kent McNeil, Common Law Aboriginal Title 10 (1989).
aboriginal title. 1. Land ownership, or a claim ofland
ownership, by an indigenous people in a place that has
been colonized. -Also termed native title. 2. INDIAN
TITLE. [Cases: Indians C= 151.]
absolute title. (17c) An exclusive title to land; a title
that excludes all others not compatible with it. See
fee simple absolute under FEE SIMPLE. [Cases: Estates
in Property
adverse title. (18c) A title acquired by adverse posses
sion. See ADVERSE POSSESSION. [Cases: Adverse Pos
session C=106.]
after-acqUired title. (1810) Title held by a person who
bought property from a seller who acquired title only
after purporting to sell the property to the buyer.
See AFTER-ACQUIRED-TITLE DOCTRINE. Cf. title by
estoppel. [Cases: Vendor and Purchaser C='8.]
apparent title. See COLOR OF TITLE.
bad title. 1. See defective title, 2. See unmarketable
title.
clear title. (17c) 1. A title free from any encumbrances,
burdens, or other limitations. [Cases: Vendor and
Purchaser 130(2), 133.] 2. See marketable title.
Also termed good title,
defeasible title. (17c) A title voidable on the occur
rence ofa contingency, but not void on its face, [Cases:
Estates in Property C='6.]
defective title. (17c) A title that cannot legally convey
the property to which it applies, usu. because ofsome
conflicting claim to that property. Also termed bad
title. [Cases: Vendor and Purchaser C='129.] derivative title. (l7c) 1. A title that results when an
already existing right is transferred to a new owner.
2. The general principle that a transteree of property
acquires only the rights held by the transferor and no
more. [Cases: Vendor and Purchaser C='210.J
dormant title. (17c) A title in real property held in
abeyance.
doubtful title. (l7c) A title that exposes the party
holding it to the risk of litigation with an adverse
claimant. See unmarketable title. [Cases: Vendor and
Purchaser C=' 129(1), l30(2).]
equitable title. (17c) A title that indicates a beneficial
interest in property and that gives the holder the right
to acquire formal legal title . Before the Statute of
Uses (1536), an equitable title was enforceable only in
a court ofchancery, not oflaw. Cf. legal title. [Cases:
Vendor and Purchaser
good title. (16c) 1. A title that is legally valid or effective.
[Cases: Vendor and Purchaser C::) l30(2), 133.] 2. See
clear title (1). 3. See marketable title.
imperfect title. (18c) A title that requires a further
exercise of the granting power to pass land in fee, or
that does not convey full and absolute dominion.
Indian title. See INDIAN TITLE.
just title. In a case of prescription, a title that the pos
sessor received from someone whom the possessor
honestly believed to be the real owner, provided that
the title was to transfer ownership of the property.
[Cases: Adverse Possession C=:>69.]
legal title. (l7c) A title that evidences apparent owner
ship but does not necessarily signify full and complete
title or a beneficial interest. Before the Statute of
Uses (1536), a legal title was enforceable only in a
court oflaw, not chancery. Cf. equitable title, [Cases:
Vendor and Purchaser C=:>54.]
lucrative title. Civil law. A title acquired without giving
anything in exchange for the property; title by which
a person acquires anything that comes as a clear gain,
as by gift, descent, or devise. -Because lucrative title
is usu. acquired by gift or inheritance, it is treated as
the separate property ofa married person. Cf. onerous
title.
marketable title. (ISc) A title that a reasonable buyer
would accept because it appears to lack any defect
and to cover the entire property that the seller has
purported to sell; a title that enables a purchaser to
hold property in peace during the period of owner
ship and to have it accepted by a later purchaser who
employs the same standards ofacceptability. -Also
termed good title; merchantable title; clear title. [Cases:
Vendor and Purchaser C'::> 130.]
"One definition of a marketable title which has been put
forward repeatedly is one free from all reasonable doubt.
Stated another way, a marketable title is one which does
not contain any manner of defect or outstanding interest
or claim which may conceivably operate to deieat or impair
the interest which is bargained for and is intended to be
conveyed. This negative concept of marketability has
become an implied invitation for courts to declare titles
1623
unmarketable if an examiner has entertained any doubt
whatever with respect to them. The digests attest the
painful truth that claims of a bygone era cling like bar
nacles to land titles and encumber them long after they
should have been scraped clean .... We need to replace
this negative approach by a positive one which will make
the marketability of titles depend solely upon their state
during some recent interval oftime rather than upon their
entire history." Paul E. Basye, Clearing Land Titles 371,
at 539 (1953).
native title. See aboriginal title (1).
nonmerchantable title. See unmarketable title.
onerous title (on-;Jr-<}s). 1. Civil law. A title acquired
by giving valuable consideration for the property, as
by paying money or performing services. 2. A title to
property that is acquired during marriage through a
spouse's skill or labor and is therefore treated as com
munity property. Cf.iucrative title.
original title. A title that creates a right for the first
time.
"The catching of fish is an original title of the right of own
ership, whereas the purchase of them is a derivative title.
The right acquired by the fisherman is newly created; it did
not formerly exist in anyone." John Salmond, Jurisprudence
345 (Glanville L Williams ed., 10th ed. 1947).
paper title. See record title.
paramount title. (I8c) 1. Archaic. A title that is the
source of the current title; original title. 2. A title
that is superior to another title or claim on the same
property.
particular title. Civil law. A title acquired from an
ancestor by purchase, gift, or inheritance before or
after the ancestor's death.
perfect title. 1. FEE SIMPLE. 2. A grant of land that
requires no further act from the legal authority to
constitute an absolute title to the land. 3. A title that
does not disclose a patent defect that may require a
lawsuit to defend it. 4. A title that is good both at law
and in equity. 5. A title that is good and valid beyond
all reasonable doubt.
presumptive title. (17c) A title of the lowest order,
arising out of the mere occupation or simple posses
sion of property without any apparent right, or any
pretense of right, to hold and continue that posses
sion.
record title. (18c) A title as it appears in the public
records after the deed is properly recorded. Also
termed title ofrecord; paper title. [Cases: Vendor and
Purchaser C= 132, 231(1).]
singular title. (17c) The title by which one acquires
property as a Singular successor.
tax title. (1831) A title to land purchased at a tax sale.
[Cases: Taxation C=::>3060-3082.]
title by descent. (l7c) A title that one acquires by law as
an heir ofthe deceased owner.
title by devise. (1819) A title created by will.
title by estoppel. Title acquired from a person who did
not have title at the time of a purported conveyance title
with a warranty but later acquired the title, which
then inures to the benefit of the grantee. Cf. after
acquired title.
title by prescription. (17c) A title acquired by prescrip
tion. See PRESCRIPTION (5). [Cases: Adverse Posses
sion C=:106.]
title defective in form |
RESCRIPTION (5). [Cases: Adverse Posses
sion C=:106.]
title defective in form. (1836) A title for which some
defect appears on the face of the deed, as opposed to
a defect that arises from circumstances or extrinsic
evidence. _ Title defective in form cannot be the basis
ofprescription. See PRESCRIPTION (5). [Cases: Vendor
and Purchaser C=129.]
title ofentry. (16c) The right to enter upon lands.
title ofrecord. See record title.
universal title. (17c) A title acquired by a conveyance
causa mortis of a stated portion of all the conveyor's
property interests so that on the conveyor's death the
recipient stands as a universal successor.
unmarketable title. (l8c) A title that a reasonable buyer
would refuse to accept because ofpossible contlicting
interests in or litigation over the property. - Also
termed bad title; unmerchantable title; nonmerchant
able title. [Cases: Vendor and Purchaser C=130(2).]
3. The heading of a statute or other legal document <the
title ofthe contract was "Confidentiality Agreement">.
[Cases: Contracts Statutes C;::;) 109.2.]
general title. A statute's name that broadly and com
prehenSively identifies the subject matter addressed
by the legislature. Cf. restrictive title. [Cases: Statutes
C=109.2.]
long title. The full, formal title of a statute, usu. con
taining a brief statement oflegislative purpose.
"The first Acts of Parliament did not have titles. The first
time that an Act of Parliament was given a title was about
1495. Even when the long title came to be added to each
Act of Parliament as a matter of course, as it did from
about 1513, the long title was not regarded as part of the
Act of Parliament itself. Today, however, the position is
different: the long title is part of the Act of Parliament."
D.J. Gifford & John Salter, How to Understand an Act of
Parliament 19 (1996).
"Because Parliament's clerks, rather than Parliament,
provided the titles of acts, the traditional rule has been that
the title could not be used for interpretive purposes ....
This is no longer the practice in most English-speaking
jurisdictions, for the long title, and often a short title as
well, are part of the legislative bill from the very beginning.
In the United States, most state constitutions require the
legislative enactment to have a title that gives accurate
notice of the contents of the law." William N. EskridgeJr. &
Elizabeth Garett, Legislation 831 (2001).
short title. The abbreviated title ofa statute by which it
is popularly known; a statutory nickname.
4. A subdivision ofa statute or code <Title IX>.
restrictive title. A statute's name that narrowly identi
fies the particular subject matter addressed by the leg
islature. Cf. general title. [Cases: Statutes C=::> 109.2.]
5. The name by which a court case or other legal pro
ceeding is distinguished from others; STYLE (1).6. An
appellation of office, dignity, or distinction <after the
title, abstract of 1624
election, he bore the title of mayor for the next four
years>.
title, abstract of. See ABSTRACT OF TITLE.
title, action to quiet. See action to quiet title under
ACTION (4).
title, chain of. See CHAIN OF TITLE.
title, cloud on. See CLOUD ON TITLE.
title, color of. See COLOR OF TITLE.
title, covenant for. See covenant for title under COVENANT
(4).
title, document of. See DOCUMENT OF TITLE.
title, indicia of. See INDICIA OF TITLE.
title, muniment of. See MUNIMENT OF TITLE.
title, root of. See ROOT OF TITLE.
title, warranty of. See warranty oftitle under WARRANTY
(2).
Title VII ofthe Civil Rights Act of 1964. A federal law
that prohibits employment discrimination and harass
ment on the basis of race, sex, pregnancy, religion,
and national origin, as well as prohibiting retaliation
against an employee who opposes illegal harassment or
discrimination in the workplace. -This term is often
referred to simply as Title VII. 42 USCA 2000e et
seq. [Cases: Civil Rights C=1l02.]
Title IX of the Educational Amendments of 1972. A
federal statute generally prohibiting sex discrimination
and harassment by educational facilities that receive
federal funds . This term is often referred to simply as
Title IX. 20 USCA 1681 et seq. Civil Rights
C=1067.]
title clearance. The removal ofimpediments to the mar
ketability ofland, esp. through title examinations.
title company. See COMPANY.
title deed. See DEED.
title division. Archaic. A common-law system for
dividing property acquired during marriage upon the
dissolution of the marriage, the divisions being based
on who holds legal title to the property. Under title
division, when a marriage ends in divorce, property
purchased during the marriage is awarded to the
person who holds title to the property. Cf. COMMUNITY
PROPERTY; EQUITABLE DISTRIBUTION.
title-guaranty company. See title company under
COMPANY.
title insurance. See INSURANCE.
title jurisdiction. See TITLE THEORY.
title member. See name partner under PARTNER.
title-object clause. See CLAUSE.
title ofentry. See TITLE (2).
title ofrecord. See record title under TITLE (2).
title ofright. (1917) A court-issued decree creating, trans
ferring, or extinguishing rights . Examples include a
decree ofdivorce or judicial separation, an adjudication of bankruptcy, a discharge in bankruptcy, a decree of
foreclosure against a mortgagor, an order appointing or
removing a trustee, and a grant ofletters ofadministra
tion. In all the examples listed, the judgment operates
not as a remedy but as a title ofright.
title opinion. See OPINION (2).
title registration. (1971) A system of registering title
to land with a public registry, such as a county clerk's
office. See TORRENS SYSTEM. [Cases: Records ~--:>9.]
title retention. (1936) A form oflien, in the nature ofa
chattel mortgage, to secure payment of a loan given to
purchase the secured item. [Cases: Chattel Mortgages
(;='1.]
title search. (1965) An examination of the public records
to determine whether anv defects or encumbrances
exist in a given property's ~hain oftitle. A title search
is typically conducted by a title company or a real-estate
lawyer at a prospective buyer's or mortgagee's request.
[Cases: Abstracts of Title 1-3; Vendor and Pur
chaser C~231(2).1
title standards. (1938) Criteria by which a real-estate
title can be evaluated to determine whether it is defec
tive or marketable. Many states, through associations
ofconveyancers and real-estate attorneys, still adhere
to title standards. [Cases: Abstracts of Title 1-3;
Vendor and Purchaser (;=>130(2).]
title state. See TITLE THEORY.
title theory. (1907) Property law. The idea that a mortgage
transfers legal title of the property to the mortgagee,
who retains it until the mortgage has been satisfied or
foreclosed. -Only a few American states -known
as title states, title jurisdictions, or title-theory jurisdiC
tions -have adopted this theory. Cf. LIEN THEORY.
[Cases: Mortgages (;=> 136.]
title transaction. (1939) A transaction that affects title
to an interest in land.
title unity. See unity oftitle under UNITY.
titulo lucrativo, qui titulus est post contractum debitum
(tkh-a-Ioh loo-kra-tl-voh, kWI tich-a-Ias est pohst bn
trak-tam deb-i-tam). [Law Latin] Hist. By a lucrative
title, which occurs after the contracting of debt.
titulo singular; (tich-a-loh sing-gy<l-lair-I). [Law Latin]
Hist. Bya singular title . Those acquiring property by
means other than succession held the property under
a titulus singularis.
titulo universali (tich-a-Ioh yoo-ni-v<lr-say-h). [Law
Latin] Hist. By a universal title . An heir succeeding
to an ancestor's estate held title titulo universali.
titulus transferendi (tich-a-Ias trans-fdr-en-dI). [Law
Latin] Hist. The legal title for transferring. Also
spelled titulus transferrendi. Cf. MODUS TRANSFER
ENOL
TM. abbr. TRADEMARK . Typically used as a superscript
after a mark (TM), it signals only that someone claims
ownership ofthe mark; it does not mean that the mark
is registered.
1625
TMEP. abbr. TRADEMARK MANUAL OF EXAMINING PRO-
CEDl:RE.
T-note. abbr. TREASURY NOTE.
tocher. Scots law. Dowry.
to-have-and-to-hold clause. See HABENDUM CLAUSE
(1).
token, n. (bef. 12c) 1. A sign or mark; a tangible evidence
of the existence of a fact. 2. A sign or indication ofan
intention to do something, as when a buyer places a
small order with a vendor to show good faith with a
view toward later placing a larger order. 3. A coin or
other legal tender. _ Although token most commonly
refers to a piece of metal, the term may also denote a
bill or other medium ofexchange.
false token. A counterfeit coin, bill, or the like.
toleration, n. 1. The act or practice of permitting or
enduring something not wholly approved of; the act
or practice of allowing something in a way that does
not hinder. 2. The allowance of opinions and beliefs,
esp. religious ones, that differ from prevailing norms.
3. Archaic. Legal permission or authorization; LICENSE
(1). -tolerate, vb.
toll, n. 1. A tax or due paid for the use of something;
esp., the consideration paid either to use a public road,
highway, or bridge, or to maintain a booth for the sale
of goods at a fair or market. [Cases: Bridges
Turnpikes and Toll Roads 2. A right to collect
such a tax or due. 3. The privilege of being free from
such a tax or due. 4. A charge for a long-distance tele
phone call. [Cases: Telecommunications ~'-;)9S0.]
toll, vb. (15c) 1. To annul or take away <toll a right of
entry>. 2. (Of a time period, esp. a statutory one) to stop
the running of; to abate <toll the limitations period>.
See EQUITABLE TOLLING. 3. Hist. To raise or collect a
tax or due for the use of something.
tollage (toh-lij). 1. Payment of a tolL 2. Money charged
or paid as a toll. 3. 'Ibe liberty or franchise of charging
a toll.
tolling agreement. (1934) An agreement between a
potential plaintiff and a potential defendant by which
the defendant agrees to extend the statutory limitations
period on the plaintiff's claim, usu. so that both parties
will have more time to resolve their dispute without
litigation. [Cases: Limitation ofActions C:=:'o 14.]
tolling statute. (1899) A law that interrupts the running
of a statute oflimitations in certain situations, as when
the defendant cannot be served with process in the
forum jurisdiction. [Cases: Limitation of Actions
43-138.]
toIt (tohlt). Hist. A writ for removing a case pending in
a court baron to a county court. -Also termed writ of
tolt. See COURT BARON; county court under COURT.
"Where the disputed interest in the land was not a fee held
of the king in chief but a fee held of a 'mesne lord' the writ
was directed to him bidding him do full right between the
parties in the matter of the land in question under pain
of the case being removed from his court to the sheriff's
court if he failed to do justice. This removal was effected Torrens system
(if necessary) by the process known as 'tolt' under which a
sheriff on a complaint to him in his county court of a failure
of the lord to do justice ordered his bailiff to attend the
lord's court and take away the plaint into the county court."
Geoffrey Radcliffe & Geoffrey Cross, The English Legal
System 38 (G.J. Hand & D.j. Bentley eds., 6th ed. 1977).
tombstone. Securities. An advertisement (esp. in a news
paper) for a public securities offering, describing the
security and identifying the sellers. -The term gets its
name from the ad's traditional black border and plain
print. Also termed tombstone advertisement; tomb
stone ad. Cf. PROSPECTUS.
ton. A measure of weight fixed at either 2,000 pounds
avoirdupois or 20 hundredweights, each hundred
weight being 112 pounds avoirdupois. [Cases: Weights
and Measures C:=:'o3.]
long ton. Twenty long hundredweight (2,240 pounds),
or 1.016 metric tons.
short ton. Twenty short hundredweight (2,000 pounds),
or 0.907 metric tons.
ton mile. In transportation, a measure equal to the trans
portation ofone ton offreight one mile.
tonnage (tan-ij). 1. The capacity of a vessel for carrying
freight or other loads, calculated in tons. -Also
termed net tonnage. [Cases: Shipping C:=:'o7.J2. The total
shipping t |
Also
termed net tonnage. [Cases: Shipping C:=:'o7.J2. The total
shipping tonnage of a country or port. 3. See tonnage
duty under DUTY (4).
tonnage duty. See DUTY (4).
tonnage-rent. A rent reserved by a mining lease or
similar transaction, consisting of a royalty on every
ton of minerals extracted from the mine. [Cases: Mines
and Minerals C:=:'o70.J
tonnage tax. See tonnage duty under DUTY (4).
tonsure. Hist. The shaving of a person's (usu. a cleric's)
head. -Serjeants-at-law supposedly wore coifs to
conceal their shaved heads.
tontine (ton-teen or ton-teen), n. 1. A financial arrange
ment in which a group of participants share in the
arrangement's advantages until all but one has died or
defaulted, at which time the whole goes to that survivor.
[Cases: Insurance C:=:'o2441.] 2. A financial arrange
ment in which an entire sum goes to the contributing
participants still alive and not in default at the end of
a specified period.
tontine policy. See INSURANCE POLICY.
top-hat pension plan. See PENSION PLAN.
top lease. See LEASE.
top management. See MANAGEMENT.
topographical survey. See SURVEY.
torpedo doctrine. See ATTRACTIVE-NUISANCE DOC
TRINE.
Torrens system (tor-anz or tahr-anz). (1863) A system
for establishing title to real estate in which a claimant
first acquires an abstract of title and then applies to
a court for the issuance of a title certificate, which
serves as conclusive evidence of ownership. -1his
tort 1626
system named after Sir Robert Torrens, a 19th
century reformer of Australian land laws has been
adopted in the United States by several counties with
large metropolitan areas. -Also termed Torrens title
system. See CAVEAT (3). [Cases: Records ~J9.]
tort (tort). (16c) 1. A civil wrong, other than breach of
contract, for which a remedy may be obtained, usu. in
the form of damages; a breach of a duty that the law
imposes on persons who stand in a particular relation
to one another. [Cases; Torts (;:::: 106.] 2. (pl.) The
branch oflaw dealing with such wrongs.
'To ask concerning any occurrence 'Is this a crime or is it a
tort?' is to borrow Sir James Stephen's apt illustration
no wiser than it would be to ask concerning a man 'Is he a
father or a son?' For he may well be both."J.W. Cecil Turner,
Kenny's Outlines of Criminal Law 543 (16th ed. 1952).
"We may ... define a tort as a civil wrong for which the
remedy is a common-law action for unliquidated damages,
and which is not exclusively the breach of a contract or the
breach of a trust or other merely equitable obligation."
R.F.V. Heuston, Salmond on the Law of Tons 13 (17th ed.
1977).
"It might be possible to define a tort by enumerating the
things that it is not. It is not crime, it is not breach of
contract, it is not necessarily concerned with property
rights or problems of government, but is the occupant of
a large residuary field remaining if these are taken out of
the law. But this again is illusory, and the conception of a
sort of legal garbage-can to hold what can be put nowhere
else is of no help. In the first place, tort is a field which
pervades the entire law, and is so interlocked at every point
with property, contract and other accepted classifications
that, as the student of law soon discovers, the categories
are quite arbitrary. In the second, there is a central theme,
or basis or idea, running through the cases of what are
called torts, which, although difficult to put into words,
does distinguish them in greater or less degree from other
types of cases." W. Page Keeton et aI., The Law ofTorts 1,
at 2-3 (5th ed. 1984).
business tort. A tort that impairs some aspect of an
economic interest or business relationship and causes
economic loss rather than property damage or bodily
harm. Business torts include tortious interference
with contractual relations, intentional interfer
ence with prospective economic advantage, unfair
business practices, misappropriation oftrade secrets,
and product disparagement. [Cases: Antitrust and
Trade Regulation (;::::410; Libel and Slander~) 130;
Torts G-'-:::>2 11 , 241.]
constitutional tort. (1966) A violation ofone's consti
tutional rights by a government officer, redressable
by a civil action filed directly against the officer . A
constitutional tort committed under color of state law
(such as a civil-rights violation) is actionable under 42
USCA 1983. Sometimes (informally) shortened
to contort. [Cases: Civil Rights 1304.]
dignitary tort (dig-n;:Hair-ee). (1996) A tort involv
ing injury to one's reputation or honor. In the few
jurisdictions in which courts use the phrase dignitary
tort (such as Maine), defamation is commonly cited
as an example. -Also (erroneously) termed digna
tory tort. environmental tort. A tort involving exposure to dis
agreeable or harmful environmental conditions or
harm to and degradation of an environment (e.g., the
pouring of acid on golf greens). _ An environmen
tal tort is usu. harmful to land rather than people,
though people may find it unpleasant (e.g., odors from
a landfill). By contrast, toxic torts involve exposure
to harmful substances that cause personal physical
injury or disease. Cf. toxic tort.
government tort. (1945) A tort committed by the gov
ernment through an employee, agent, or instrumen
tality under its controL -The tort mayor may not be
actionable, depending on whether the government is
entitled to sovereign immunity. A tort action against
the U.S. government is regulated by the Federal Tort
Claims Act, while a state action is governed by the
state's tort claims act. See FEDERAL TORT CLAIMS
ACT; sovereign immunity under IMMt:NITY (1). [Cases:
Municipal Corporations (;::::723.]
intentional tort. (1860) A tort committed by someone
acting with general or specific intent. -Examples
include battery, false imprisonment, and trespass to
land. Also termed willful tort. Cf. NEGI.IGENCE.
[Cases: Torts (;:::: liS.]
marital tort. A tort by one spouse against the other .
Since most jurisdictions have abolished interspousal
tort immunity, courts have had to decide which tort
claims to recognize between married persons. Among
those that some, but not all, courts have chosen to
recognize are assault and battery, including claims
for infliction of sexually transmitted disease, and
intentional and negligent infliction of emotional
distress. Also termed domestic tort. Cf. husband
wife immunity under IMMUNITY. [Cases: Husband
and Wife (;::::53, 205(2).]
maritime tort. Any tort within the admiralty jurisdic
tion. [Cases: Admiralty (;::~17.]
mass tort. (1940) A civil wrong that injures many
people. Examples include toxic emissions from a
factory, the crash of a commercial airliner, and con
tamination from an industrial-waste-disposal site.
Cf. toxic tort.
negligent tort. (1865) A tort committed by failure to
observe the standard of care required by law under
the circumstances. See NEGLIGENCE.
personal tort. (17c) A tort involving or consisting in
an injury to one's person, reputation, or feelings, as
distinguished from an injury or damage to real or
personal property. [Cases: Torts (;::::425.]
preconception tort. A tort that is committed before the
victim has been conceived.
prenatal tort, (1960) 1. A tort committed against a
fetus. -Ifborn alive, a child can sue for injuries result
ing from tortious conduct predating the child's birth.
[Cases: Death 15; Infants (;::::72(2).] 2. Loosely,
any of several torts relating to reproduction, such as
those giving rise to wrongful-birth actions, wrongful
1627
life actions, and wrongful-pregnancy actions. [Cases:
Health <>686, 687.1
prima facie tort (prI-m<l fay-shee-ee or -shee or -sh<l).
(1938) An unjustified, intentional infliction of harm
on another person, resulting in damages, by one or
more acts that would otherwise be lawful. _ Some
jurisdictions have established this tort to provide a
remedy for malicious deeds -esp. in business and
trade contexts -that are not actionable under tradi
tional tort law. [Cases: Torts C=,155.]
property tort. (1898) A tort involving damage to
property. [Cases: Torts C=:C429.]
public tort. (1949) A minor breach ofthe law (such as a
parking violation) that, although it carries a criminal
punishment, is considered a civil offense rather than
a criminal one because it is merely a prohibited act
(malum prohibitum) and not inherently reprehensible
conduct (malum in se). -Also termed civil offense. Cf.
civil wrong under WRONG; public delict under DELICT.
[Cases: Criminal Law <>26, 27.J
quasi-tort. (1809) A wrong for which a nonperpetrator
is held responsible; a tort for which one who did not
directly commit it can nonetheless be found liable,
as when an employer is held liable for a tort com
mitted by an employee. -Also spelled quasi tort.
See vicarious liability under LIABILITY; RESPONDEAT
SUPERIOR.
sanctions tort. See SANCTIONS TORT.
toxic tort. (1979) A civil wrong arising from exposure
to a toxic substance, such as asbestos, radiation, or
hazardous waste . A toxic tort can be remedied by a
civil lawsuit (usu. a class action) or by administrative
action. Cf. mass tart; environmental tort. [Cases: Neg
ligence <>306; Products Liability <>201, 217.]
willful tort. See intentional tart.
tortfeasor (tort-fee-z<lr). (I7c) One who commits a tort;
a wrongdoer.
concurrent tortfeasors. (1921) Two or more tortfea
sors whose simultaneous actions cause injury to a
third party. Such tortfeasors are jointly and sev
erally liable. [Cases: Negligence (:::-.>421, 484; Torts
<>134, 135.]
consecutive tortfeasors. (1955) Two or more tortfea
sors whose actions, while occurring at different times,
combine to cause a single injury to a third party.
Such tortfeasors are jointly and severally liable.
joint tortfeasors. (1822) Two or more tortfeasors who
contributed to the claimant's injury and who may be
joined as defendants in the same lawsuit. See jOint and
several liability under LIABILITY. [Cases: Negligence
e='484; Torts <>134, 135.J
successive tortfeasors. (1954) Two or more tortfeasors
whose negligence occurs at different times and causes
different injuries to the same third party. [Cases:
Damages (~34.]
tortious (tor-sh<ls), ad). (l6c) 1. Constituting a tort;
wrongful <tortious conduct>. [Cases: Torts total
106, 107.] 2. In the nature of a tort <tortious cause of
action>.
tortious act. See ACT (2).
tortious battery. See BATTERY (2).
tortious conduct. See CONDUCT.
tortious interference with a business advantage. See
TORTIOUS INTERFERENCE WITH PROSPECTIVE ADVAN
TAGE.
tortious interference with contractual relations. (1954)
A third party's intentional inducement of a contract
ing party to break a contract, causing damage to the
relationship between the contracting parties. Also
termed unlawful interference with contractual relations;
interference with a contractual relationship; interfer
ence with contract; inducement of breach ofcontract;
procurement of breach ofcontract. [Cases: Labor and
Employment <>903-914; Torts <>212.J
tortious interference with economic relations. See
TORTIOUS INTERFERENCE WITH PROSPECTIVE ADVAN
TAGE.
tortious interference with prospective advantage.
(1973) An intentional, damaging intrusion on another's
potential business relationship, such as the opportunity
ofobtaining customers or employment. -Also termed
interference with a business relationship; tortious inter
ference with a business advantage; tortious interference
with economic relations. [Cases: Torts (;::=>213.]
tortious liability. See LIABILITY.
tort-of-another doctrine. Torts. The principle that a
party who must bring or defend an action against a
third person based on a tort committed by another
person is entitled to seek litigation-related damages
from that other person. [Cases: Damages
tort reform. (1974) A movement to reduce the amount of
tort litigation, usu. involving legislation that restricts
tort remedies or that caps damages awards (esp. for
punitive damages) . Advocates of tort reform argue
that it lowers insurance and healthcare costs and
prevents windfalls, while opponents contend that it
denies plaintiffs the recovery they deserve for their
injuries |
prevents windfalls, while opponents contend that it
denies plaintiffs the recovery they deserve for their
injuries.
torture, Yl. (16c) The intliction ofintense pain to the body
or mind to punish, to extract a confession or informa
tion, or to obtain sadistic pleasure. -torture, vb.
"By torture I mean the Infliction of physically founded suf
fering or the threat immediately to inflict it, where such
infliction or threat is intended to elicit, or such infliction is
incidental to means adopted to elicit, matter of intelligence
or forensiC proof and the motive is one of military, civil, or
eccleSiastical interest." James Heath, Torture and English
Law3 (1982).
torture by proxy. See extraordinary rendition under
RENDITION.
torture flight. See extraordinary rendition under REN
DITION.
total, adj. (14c) 1. Whole; not divided; full; complete. 2.
Utter; absolute.
total assignment. See ASSIGNMENT (2).
total breach. See BREACH OF CONTRACT.
total disability. See DISABILITY (2).
total-disability insurance. See general-disability insur
ance under INSURANCE.
total eviction. See EVICTION.
total failure ofconsideration. See FAILURE OF CONSID
ERATION.
total incorporation. See INCORPORATION.
totality-of-the-circumstances test. (1959) Criminal pro
cedure. A standard for determining whether hearsay
(such as an informant's tip) is sufficiently reliable to
establish probable cause for an arrest or search warrant.
Under this test -which replaced Aguilar-Spinelli's
two-pronged approach -the reliability ofthe hearsay is
weighed by focusing on the entire situation as described
in the probable-cause affidavit, and not on anyone
specific factor. Illinois v. Gates, 462 U.S. 213, 103 S.Ct.
2317 (1983). Cf. AGUILAR-SPINELLI TEST. [Cases: Arrest
(;=J63.4(7); Searches and Seizures (;=J 115.1.]
total loss. See LOSS.
total-offset rule. Torts. A theory of damages holding
that the eroding effect of inflation offsets the accrual
of interest on an award and makes it unnecessary to
discount future damages to their present value. [Cases:
Damages (;=J226.]
total repudiation. See REPUDIATION.
tota re perspecta (toh-t;J ree p;Jr-spek-t;J). [Latin] Hist.
The whole matter being taken into account or consid
ered. -Also termed tota materia perspecta.
totidem verbis. [Latin] In so many words.
toties quoties (toh-shee-eez kwoh-shee-eez or toh-sheez
kwoh-sheez). [Latin] Hist. As often as.
toto caelo (toh-toh see-Ioh), adv. [Latin "by the whole
extent ofthe heavens"] As far as possible; diametrically
<the parties differ with each other toto caelo>.
toto genere (toh-toh jen-;J-ree). [Latin] Hist. In their
whole character; entirely.
Totten trust. See TRUST.
touch, vb. Marine insurance. To stop at a port, usu. for a
brief period. [Cases: Insurance (;=J3059.]
touch and stay. Marine insurance. A right, granted by
an insurer to an insured vessel, to stop and remain at
certain designated points in the course of the voyage.
A vessel that has the power to touch and stay at a
place must confine itself strictly to the terms ofthe per
mission given, and any deviation during a stay -for
example, by shipping or landing goods -will discharge
the underwriters, unless the vessel has permission to
trade as well as to touch and stay. [Cases: Insurance
(;=J3059.]
Touhy regulations. The rules governing procedures for
document production by federal agencies for purposes
of litigation. 28 C.P.R. 16.21 et seq . The term comes
from United States ex reI. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416 (1951). In that case, an FBI agent refused
to produce certain records under a subpoena duces
tecum because a departmental regulation expressly
stated that the Attorney General was the only person
with authority to produce the documents. The United
States Supreme Court upheld the regulation's validity.
[Cases: Witnesses (;=J 16.]
tout court (too koor), adv. [French "simply, without qual
ification"] Very briefly; without explanation.
tout ensemble (toot on-son-bl;J), n. [French "all together"]
The overall visual effect of a design; general effect .
The phrase denotes a way of comparing two designs,
by looking at the total impact rather than comparing
individual design elements. That is the technique used
in determining whether a design infringes someone's
trade-dress rights, or if a design-patent application
shows a novel and nonobvious change from existing
designs. Although the phrase is adverbial in French,
it is typically used as a noun in English. See ANTIDIS
SECTION RULE.
touting, n. The solicitation ofbusiness by highly recom
mending a security or product, esp. when the recom
mendation's basis is largely puffery.
tout temps prist et encore prist. [Law French] Common
law pleading. The clause in a plea of tender stating that
the pleader is and always has been ready to pay. See
PLEA OF TENDER.
towage (toh-ij), n. 1. The act or service of towing ships
and vessels, usu. by means ofa small vessel called a tug.
[Cases: Towage (;=J 1.] 2. The charge for such a service.
[Cases: Towage (;=J5.]
toward, adj. 1. In the direction of; on a course or line
leading to (some place or something). 2. Coming soon;
not long before.
to wit (too wit), adv. (14c) Archaic. That is to say; namely
<the district attorney amended the complaint to
include embezzlement, to wit, "stealing money that the
company had entrusted to the accused ">. -Sometimes
spelled to-wit; towit.
town. 1. A center of population that is larger and more
fully developed than a village, but that (traditionally
speaking) is not incorporated as a city. [Cases: Towns
(;=J 1.] 2. The territory within which this population
lives. 3. Collectively, the people who live within this
territory. Cf. CITY.
"A town is a precinct anciently containing ten families,
whereupon in some countries they are called tithings,
within one of which tithings every man must be dwelling,
and find sureties for his good behaviour, else he that taketh
him into his house is to be amerced in the leet." Sir Henry
Finch, Law, or a Discourse Thereof 80 (1759).
town-bonding act. A law authorizing a town, county,
or other municipal corporation to issue its corporate
bonds for the purpose ofaiding in construction, often
ofrailroads. -Also termed town-bonding law. [Cases:
Towns (;=J52.]
town clerk. See CLERK (1).
1629 trade deficit
town collector. A town officer charged with collecting
the taxes assessed by a town. [Cases: Towns C=>59.]
town commissioner. See COMMISSIONER.
town crier. Hist. A town officer responsible for making
proclamations related to town business.
town hall. A building that houses the offices ofa town's
government. [Cases: Towns (;::'35.]
townhouse. A dwelling unit having usu. two or three
stories and often connected to a similar structure by
a common wall and (particularly in a planned-unit
development) sharing and owning in common the sur
rounding grounds. -Also termed townhome.
town meeting. 1. A legal meeting of a town's qualified
voters for the administration of local government
or the enactment of legislation . Town meetings of
this type are common in some New England states.
[Cases: Towns 2. More generally, any assembly
ofa town's citizens for the purpose of discussing politi
cal, economic, or social issues. 3. Modernlv, a televised
event in which one or more politicians m'eet and talk
with representative citizens about current issues.
town order. An official written direction by the auditing
officers ofa town, directing the treasurer to pay a sum
ofmoney. -Also termed town warrant. [Cases: Towns
~';>50.1
town purpose. A municipal project or expenditure that
concerns the welfare and advantage of the town as a
whole. [Cases: Towns 046(1).]
township. 1. In a government survey, a square tract six
miles on each side, containing thirty-six square miles
ofland. 2. In some states, a civil and political subdivi
sion of a county. Abbr. tp. [Cases: Municipal Cor
porations (;::'6.]
township trustee. See TRUSTEE (1).
townsite. A portion of the public domain segregated by
proper authority and procedure as the site for a town.
town treasurer. An officer responsible for maintaining
and disbursing town funds. [Cases: Towns e:.Y 30.]
town warrant. See TOWN ORDER.
toxic, adj. Having the character or producing the effects
of a poison; produced by or resulting from a poison;
poisonous. -Also termed toxical. [Cases: Environ
mental Law C=:>413.]
toxicant (tok-si-bnt), n. (1879) A pOison; a toxic agent;
any substance capable of producing toxication or poi
soning.
toxic asset. See troubled asset under ASSET.
toxicate, vb. Archaic. To poison. See INTOXICATION.
toxic convert. See DEATH-SPIRAL DEAL.
toxicology (tok-si-kol-a-jee). (18c) The branch of
medicine that concerns poisons, their effects, their
recognition, their antidotes, and generally the diag
nosis and therapeutics of poisoning; the science of
poisons. -toxicological (tok-si-ka-loj-i-k.,J), adj.
toxic tort. See TORT. toxic waste. See WASTE (2).
toxin, n. (1886) 1. Broadly, any pOison or toxicant. 2. As
used in pathology and medical jurisprudence, any dif
fusible alkaloidal substance -such as the ptomaines,
abrin, brucin, or serpent venoms and esp. the poi
sonous products ofdisease-producing bacteria.
tp. abbr. TOWNSHIP.
TPL. abbr. Third-party logistical service provider. See
FREIGHT FORWARDER.
TPPM. abbr. TANGIBLE-PERSONAL-PROPERTY MEMO
RANDUM.
TPR. abbr. TERMINATION OF PARENTAL RIGHTS.
traces, n. See retrospectant evidence under EVIDENCE.
tracing, n. (16c) 1. The process of tracking property's
ownership or characteristics from the time ofits origin
to the present <tracing the vehicle's history> . Parties
in a divorce will be expected to trace the origins of
property in existence at the time ofmarital dissolution
in order to characterize each asset as separate or marital
property (or as community property in some states).
Also termed tracing offunds; tracing ofproperty. Cf.
COMMI::-<GLE. 2. 'Ihe act of discovering and follOWing
a person's actions or movements <tracing the robber's
steps>.
tract. (14c) A specified parcel ofland <a 40-acre tract>.
tract index. See INDEX (1).
tractusfuturi temporis (trak-tJs fyoo-t[y]oor-I tern-pd
ris). [Latin] Hist. A tract offuture time.
trade, n. (14c) 1. The business of buying and selling or
bartering goods or services; COMMERCE.
inland trade. Trade wholly carried on within a country,
as distinguished from foreign commerce.
precarious trade. Int'llaw. Trade by a neutral country
between two belligerent powers, allowed to exist at
the latter's sufferance.
2. A transaction or swap. 3. A business or industry
occupation; a craft or profession. -trade, vb.
trade acceptance. See ACCEPTANCE (4).
trade agreement. 1. An agreement such as the North
American Free Trade Agreement between two or
more nations concerning the buying and selling of
each nation's goods. [Cases: Customs Duties 10.]
2. COLLECTIVE-BARGAINING AGREEMENT.
trade and commerce. Every business occupation carried
on for subsistence or profit and involving the elements
of bargain and sale, barter, exchange, or traffic.
Trade and Development Program. See UNITED STATES
TRADE AND DEVELOPMENT AGENCY.
trade association. See ASSOCIATION.
trade council. A central labor union; the central orga
nization ofa local trade union. -Also termed trades
council. See UNION.
trade defamation. See DEFAMATION.
trade deficit. See DEFICIT.
1630 trade discount
trade discount. See DISCOUNT.
trade disparagement. The common-law tort ofbelittling
someone's business, goods, or services with a remark
that is false or misleading but not necessarily defama
tory. To succeed at the action, a plaintiff must prove
that (1) the defendant made the disparaging remark;
(2) the defendant either intended to injure the business,
knew the statement was false, or recklessly disregarded
whether it was true; and (3) the statement resulted in
special damages to the plaintiff, usu. by passing off.
Also termed commercial disparagement; product dis
paragement; injurious false |
to the plaintiff, usu. by passing off.
Also termed commercial disparagement; product dis
paragement; injurious falsehood. Cf. trade defamation
under DEFAMATION. [Cases: Antitrust and Trade Regu
lation C=-->25.]
trade dispute. 1. Int'llaw. A dispute between two or
more countries arising from tariff rates or other matters
related to international commerce. 2. Labor law. A
dispute between an employer and employees over pay,
working conditions, or other employment-related
matters. An employee who leaves during a trade
dispute is not entitled to benefits under the Unemploy
ment Insurance Act.
trade dollar. Hist. A United States dollar coin, made
of silver, issued from 1873 to 1878 for use in foreign
trade, esp. in eastern Asia. A trade dollar was legal
tender within the U.S. until 1876 when the coin's silver
content fell to less than one dollar. From 1878 to 1885,
trade dollars were minted only in proof sets, then dis
continued.
trade draft. See DRAFT.
trade dress. Trademarks. The overall appearance and
image in the marketplace of a product or a commer
cial enterprise . For a product, trade dress typically
comprises packaging and labeling. For an enterprise,
it typically comprises design and decor. Ifa trade dress
is distinctive and nonfunctional, it may be protected
under trademark law. -Also termed get-up; look and
feel. [Cases: Trademarks (;:::J1061.]
"The 'trade dress' of a product is essentially its total image
and overall appearance. It 'involves the total image of a
product and may include features such as size, shape, color
or color combinations, texture, graphics, or even particular
sales techniques.'" Two Pesos, Inc. v. Taco Cabana, Inc., 505
U.S. 763, 765 n.l, 1125.0.2755,2755 n.l (1992).
trade embargo. See EMBARGO (3).
trade fixture. See FIXTURE.
trade gap. See trade deficit under DEFICIT.
trade guild. See GUILD (1).
trade libel. Trade defamation that is written or recorded.
See LIBEL; trade defamation under DEFAMATION; DIS
PARAGEMENT (3). Cf. trade slander under SLANDER.
[Cases: Libel and Slander l30.)
trademark, n. (1838) 1. A word, phrase, logo, or other
graphic symbol used by a manufacturer or seller to dis
tinguish its product or products from those of others.
The main purpose of a trademark is to deSignate
the source of goods or services. In effect, the trade
mark is the commercial substitute for one's signature. To receive federal protection, a trademark must be (1)
distinctive rather than merely descriptive or generic; (2)
affixed to a product that is actually sold in the market
place; and (3) registered with the U.S. Patent and Trade
mark Office. In its broadest sense, the term trademark
includes a servicemark. Unregistered trademarks are
protected under common-law only, and distinguished
with the mark "TM." -Often shortened to mark. Cf.
SERVICEMARK. [Cases: Trademarks 1021.} 2. The
body oflaw dealing with how businesses distinctively
identify their products. Abbr. TM. See LANHAM
ACT. Cf. SERVICEMARK; registered trademark; BRAND;
TRADENAME.
"The protection of trademarks is the law's recognition
of the psychological function of symbols. If it is true that
we live by symbols, it is no less true that we purchase
goods by them. A trade-mark is a merchandising short
cut which induces a purchaser to select what he wants, or
what he has been led to believe he wants. The owner of
a mark exploits this human propensity by making every
effort to impregnate the atmosphere of the market with
the drawing power of a congenial symbol. Whatever the
means employed, the aim is the same to convey through
the mark, in the minds of potential customers, the desir
ability ofthe commodity upon which it appears. Once this
is attained, the trade-mark owner has something of value.
If another poaches upon the commercial magnetism of the
symbol he has created, the owner can obtain legal redress."
Mishawaka Rubber & Woolen Mfg. Co. v, 5.S. Kresge Co. 316
U.s. 203, 205, 62 S.Ct. 1022, 1024 (1942) (Frankfurter,j.).
"A trademark functions on three different levels: as an
indication of origin or ownership, as a guarantee of con
stancy of the quality or other characteristics of a product
or service, and as a medium of advertisement. Thus, a
trademark guarantees, identifies, and sells the product
or service to which it refers. These three facets of a
trademark -of differing importance at different times,
in different lines of business and for different products
or services ---are somewhat correlative. The classical
function, that of identification, has been primarily respon
sible for molding the development of trademark law. The
significance of the guarantee function has been somewhat
exaggerated, while the implications of the advertisement
function still await full recognition in the law." 3 Rudolf
Call mann. The Law ofUnfair Competition, Trademarks and
Monopolies 17.01, at 2 (4th ed. 1998).
abandoned trademark. A mark whose owner has dis
continued using it and has no intent to resume using
it in the ordinary course oftrade, or has allowed it to
become a generic term or otherwise to lose its dis
tinctive Significance . Under 45 of the Lanham
Act, nonuse of a mark for three consecutive years is
prima facie evidence of abandonment. The owner
ofan abandoned mark has no trademark rights to
exclude others from using it. -Also termed aban
doned mark. [Cases; Trademarks 1155.}
arbitrary trademark. A trademark containing common
words that do not describe or suggest any characteris
tic ofthe product to which the trademark is assigned.
Because arbitrary marks are neither descriptive
nor suggestive ofthe goods or services in connection
with which they are used, they are inherently distinc
tive, require no proofofsecondary meaning, and are
entitled to strong legal protection. A name that would
be generic ifused with one product may be arbitrary
ifused with another. For example, "Bicycle" may be
1631 trademark
registered to identify playing cards, but it could not
be protected as a mark to identify bicycles. Also
termed arbitrary mark; arbitrary name. [Cases: Trade
Regulation C::::; 1039.]
certification trademark. A word, symbol, or device
used on goods or services to certify the place of
origin, material, mode of manufacture, quality, or
other characteristic. See 15 USCA 1127. Also
termed certification mark. Cf. collective trademark.
[Cases: Trademarks ~~1066.]
coined trademark. See fanciful trademark.
collective trademark. (1941) A trademark or service
mark used by an association, union, or other group
either to identify the group's products or services
or to signify membership in the group. -Collec
tive marks such as "Realtor" or "American Peanut
Farmers" -can be federally registered under the
Lanham Act. Also termed collective mark. Cf. cer
tification trademark. [Cases: Trademarks (;:::: 1067.]
Community trademark. A trademark registered with
the European Union Trademark Office and recog
nized in all EU countries. Also termed Community i
mark. [Cases: Trademarks ~J1261.]
composite trademark. (bm-poz-it mahrk). A trade
mark or servicemark made up of several words that
form a distinctive whole, even if the individual words
are ordinary. _ Advertising slogans are often pro
tectable as composite marks. A trademark registrant
can establish ownership in the whole mark, but must
disclaim ownership in any unregistrable parts. .
Also termed composite mark; hybrid mark; hybrid I
trademark. (Cases: Trademarks C::::;' 1058.]
counterfeit trademark. A spurious mark that is identi
cal to, or substantially indistinguishable from, a reg
istered trademark. 15 USCA 1116(d)(l)(B). -Also
termed counterfeit mark. [Cases: Trademarks
1432, 1787.]
descriptive trademark. A trademark that is a meaning
ful word in common usage or that merely describes
or suggests a product. -This type of trademark is
entitled to protection only if it has acquired dis
tinctiveness over time. Also termed descriptive
mark; weak mark; weak trademark. See SECONDARY
MEANING. [Cases: Trademarks C~1035.]
'The bar against descriptive marks simply reflects the
requirement of distinctiveness. 15 U.S,C.A. 1052(e)(l).
It often is said that a mark should not be analyzed in a
piecemeal fashion. Instead, the mark as a whole must be
tested for descriptiveness or secondary meaning. A mark
that merely describes a product cannot possibly distin
guish one producer from another. As an obvious example,
'apple' would be a descriptive name for that frUit, and, as
a mark, would serve only to confuse the consumer, for it
would tell nothing about the different origins of a selection
of apples produced by different producers. Moreover, to
allow an owner to pre-empt the term 'apple' would afford
the owner a monopoly of something that is necessary to
describe the goods for sale." Arthur R. Miller & Michael
H. Davis, Intellectual Property: Patents, Trademarks, and
Copyright in a Nutshell 163 (2d ed. 1990). disparaging trademark. A trademark that tends to
bring a person or class ofpeople into contempt or
disrepute. -Section 2(a) of the Lanham Act prohib
its the registration of disparaging marks. 15 USCA
1052(a). -Also termed disparaging mark. See pro
hibited and reserved trademark. [Cases: Trademarks
C='1073.)
distinctive trademark. A very strong trademark, one
that consumers immediately and consistently asso
ciate with specific goods and services. -Distinctive
trademarks are usu. fanciful, arbitrary, or suggestive,
but descriptive trademarks and common names can
become distinctive if they become so well known as to
acquire a secondary meaning. Also termed distinc
tive mark. [Cases: Trademarks <::='1029.]
evocative trademark. See suggestive trademark.
famous trademark. A trademark that not only is dis
tinctive but also has been used and heavily advertised
or widely accepted in the channels of trade over a long
time, and is so well known that consumers immedi
ately associate it with one specific product or service.
Only famous marks are protected from dilution.
Eight nonexclusive statutory factors are often used in
determining whether a particular mark is famous. See
15 USCA 1125 (c)(l)(A)-(H). -Also termed famous
mark. [Cases: Trademarks C::::; 1468.]
fanciful trademark. A trademark consisting of a
made-up or coined word; a distinctive trademark
or tradename having no independent meaning.
This type of mark is considered inherently distinc
tive and thus protected at common law, and is eligible
for trademark registration from the time ofits first
use. Also termed fanciful mark; fanciful term;
coined trademark; coined mark; coined term. [Cases:
Trademarks C::::; 1039.]
"Arbitrary or fanciful marks convey nothing about the
nature of the product except through knowledge of the
market. For instance, Kodak conveys nothing about photo
graphic equipment except to those knowledgeable about
that trade." Arthur R. Miller & Michael H. Davis, Intellectual
Property in CI Nutshell 168 (2d ed. 1990).
geographically descriptive trademark. A trademark
that uses a geographic name to indicate where the
goods are grown or manufactured. _ This type of
mark is protected at common law, and can be regis
tered only on proof that it has acquired distinctiveness
over time. -Also termed geographically descriptive
mark. See SECONDARY MEANING.lCases: Trademarks
~1047.1
house trademark. A trademark that identifies a
company, a division of a company, or a company's
product line as the source ofa product or service. - A
house mark and a product mark often appear together
on a label. -Also termed house mark. Cf. product
trademark. [Cases: Trademarks (;::::c 1060.]
hybrid trademark. See composite trademark.
product trademark. A trademark that identifies a Single
good or service, rather than the producing company, a
division ofa company, or a product line. - A product
1632 Trademark Act of 1946
mark and a house mark often appear together on a
label. Also termed product mark. Cf. house trade
mark. [Cases: Trademarks (;:::::> 1022.]
prohibited and reserved trademark. A mark that is not
protected under the Lanham Act because it either fall
into an expressly excluded category or else is similar
to a mark granted by statute to another. 15 USCA
1052. Also termed prohibited and reserved mark.
[Cases: Trademarks (>1243.]
pure trademark. See technical trademark.
registered trademark. A trademark that has been filed
and recorded with the Patent and Trademark Office.
A federally registered trademark is usu. marked by
the symbol "<" or a phrase such as "Registered U.S.
Patent & Trademark Office" so that the trademark
owner can potentially collect treble damages or the
defendant's profits for an infringement. Ifthe symbol
is not used, the owner can collect these damages or
profits only by proving that the defendant actually
knew that the mark was registered. -Also termed
registered mark. Cf. |
only by proving that the defendant actually
knew that the mark was registered. -Also termed
registered mark. Cf. SERVICEMARK. [Cases: Trade
marks (;:;~\ 1240.]
strong trademark. An inherently distinctive trademark
that is used usu. by the owner only -in a ficti
tious, arbitrary, and fanciful manner, and is therefore
given greater protection than a weak mark under the
trademark laws. Also termed strong mark. [Cases:
Trademarks
suggestive trademark. A trademark that suggests
rather than describes the particular characteristics
ofa product, thus requiring a consumer to use imagi
nation to draw a conclusion about the nature of the
product. A suggestive trademark is entitled to pro
tection without proof ofsecondary meaning. -Also
termed evocative mark; suggestive mark; suggestive
name. See SECONDARY MEANING. [Cases: Trademarks
~)1038.]
technical trademark. A mark that satisfies all the
elements of a common-law trademark. The essen
tial elements ofa technical trademark are as follows:
(1) its use to designate a commercial source would not
interfere with anyone else's right to use the mark; (2)
it must primarily identify the source, rather than the
product's category or grade ofquality; (3) it must be
attached to the product, label, or collateral materi
als rather than merely used in advertising; and (4)
its use must not undermine some public policy, as by
being scandalous or deceptive. -Also termed pure
trademark; technical mark; true trademark. [Cases:
Trademarks
true trademark. See technical trademark.
weak trademark. See descriptive trademark.
Trademark Act of 1946. See LANHAM ACT.
trademark application. A mark owner's written request,
filed with the U.S. Patent and Trademark Office, for
federal registration of a mark, accompanied by a sample
of the mark to be protected and the filing fee . The application may describe either an existing mark that is
in use or a proposed mark. -Also termed servicemark
application. [Cases: Trademarks
combined application. An application to register a
mark to be used in more than one class of goods or
services. A combined application is given a single
serial number, but it is examined as ifit were a set of
distinct single applications. Separate filing fees must
be paid for each class. -Also termed multiple-class
application. [Cases: Trademarks
intent-to-use application. An application filed with the
U.S. Patent and Trademark Office to protect a trade
mark or servicemark that is not currently in commer
cial use but whose owner has a bona fide intent to use
the mark commercially in the foreseeable future .
Trademark rights have traditionally been restricted to
marks actually used in trade, but a 1988 amendment
to the Lanham Act permitted applications to be filed
before actual use begins ifthe mark otherwise quali
fies for the Principal Register. 15 USCA 1051(b). See
PRINCIPAL REGISTER. [Cases: Trademarks C==> 1284.J
multiple-class application. See combined application.
trademark-application amendment. A proposed modi
fication to a registered trademark or to an application
for trademark registration. [Cases: Trademarks
1251, 1282.]
amendment ofregistration. Trademarks. Amendment
ofan existing trademark registration to make minor
changes in the design of a mark to reflect how the
mark is actually used . The U.S. Patent and Trade
mark Office permits an amendment of registration
only ifit does not materially alter the character of the
mark. The PTO amends a registration by attaching to
the printed registration a printed certificate showing
the amendment. -Also termed amendment ofmark
in registration. [Cases: Trademarks C==> 1251.J
amendment to allege use. Trademarks. A supplement to
a trademark applicant's intent-to-use application filed
to inform the U.S. Patent and Trademark Office that a
trademark is actuallv in use in interstate commerce .
The form is titled "Allegation ofUse for Intent to Use
Application." -Abbr. AAU. Also termed state
ment of use; allegation ofuse. See DECLARATION OF
USE. [Cases; Trademarks (;:::::> 1284.]
amendment to different register. Trademarks. An
amendment to an application for registration on the
Principal Register, requesting that the mark instead
be placed on the supplemental register. [Cases: Trade
marks C==> 1283.J
trademark class. Anyone of 42 international trademark
protection categories, each comprising similar goods
or services . There are 34 goods classes and 8 services
classes. A trademark is protected in each class that is
relevant to the product's or service's business area.
[Cases: Trademarks C==> 1369.]
Trademark Cyberpiracy Prevention Act. See ANT ICY
BERSQUATTlNG CONSUMER PROTECTION ACT.
1633
Trademark Electronic Application System. A method
of applying to the U.S. Patent and Trademark Office for
a trademark over the Internet. _ The system is avail
able at http://www.uspto.gov/teas/index.html. Abbr.
TEAS.
trademark infringement. See INFRINGEMENT.
Trademark taw Treaty. A 1994 treaty that reduces
barriers to applying for and registering trademarks
internationally, and establishes a model international
trademark-registration form acceptable by all signatory
nations. _ The United States is a party to the treaty.
[Cases: Trademarks (;:::0 1236.]
Trademark Manual of Examining Procedure. Trade
marks. The u.s. Patent and Trademark Office book
containing guidelines and procedures for trademark
examiners. -Abbr. TMEP. [Cases: Trademarks
1280.]
Trademark Office. See UNITED STATES PATENT AND
TRADEMARK OFFICE.
trademark-registration notice. A notice that a mark
is protected by registration with the U.S. Patent and
Trademark Office, shown by placing a symbol next to
the mark. -In the U.S., the R-within-a-cirde symbol
(0) is common but the legend "Reg. U.S. Pat. Off." is
acceptable. Only federally registered marks may use
this notice. lCases: Trademarks ~1250.]
Trademark Trial and Appeal Board. An administra
tive body that hears and decides disputes involving
trademark ownership, conflicts between marks, and
registrability of marks. -Abbr. TTAB. [Cases: Trade
marks 1313.]
"No judicial body has administered our trademark laws
with more regularity than the Trademark Trial and Appeal
Board ... , the administrative tribunal of the U.S. Patent
and Trademark Office that decides trademark proceedings.
Established by Congress in 1958, the Board has seen its
caseload increase dramatically over time, reflecting the
growing importance oftrademarks in our competitive mar
ketplace," 1 Jeffery A. Handelman, Guide to TTAB Practice
1.01, at 1-3 (2008).
trade meaning. See SECONDARY MEANING.
tradename. Intellectual property. 1. A name, style, or
symbol used to distinguish a company, partnership,
or business (as opposed to a product or service); the
name under which a business operates. _ A tradename
is a means of identifying a business -or its products
or services to establish goodwill. It symbolizes the
business's reputation. Cf. BRAND; D/B/A; TRADEMARK.
[Cases: Trademarks (....-::1026.]2. A trademark that was
not originally susceptible to exclusive appropriation
but has acquired a secondary meaning. -Also termed
brand name; commercial name.
trade or business. Tax. Any business or professional
activity conducted by a taxpayer with the objective of
earning a profit. -If the taxpayer can show that the
primary purpose and intention is to make a profit, the
taxpayer may deduct certain expenses as trade-or
business expenses under the Internal Revenue Code.
[Cases: Internal RevenueC-~3314.1-3318.] trade secret
trade practice. A customary way of doing business;
esp., a method of using specifications for size, thick
ness, shape, or quality adopted within a given industry.
[Cases: Customs and Usages
trade price. See PRICE.
trader. 1. A merchant; a retailer; one who buys goods to
sell them at a profit. 2. One who sells goods substan
tially in the form in which they are bought; one who
has not converted them into another form ofproperty
by skill and labor. 3. One who, as a member of a stock
exchange, buys and sells securities on the exchange
floor either for brokers or on his or her own account.
4. One who buys and sells commodities and commod
ity futures for others or for his or her own account in
anticipation of a speculative profit.
Trade-Related Aspects of Intellectual Property Rights.
See TRIPS.
trader's settlement. See SETTLEMENT (1).
trades council. See TRADE COUNCIL.
trade secret. (1862) 1. A formula, process, device, or
other business information that is kept confidential
to maintain an advantage over competitors; infor
mation -including a formula, pattern, compilation,
program, device, method, technique, or process
that (1) derives independent economic value, actual or
potential, from not being generally known or readily
ascertainable by others who can obtain economic value
from its disclosure or use, and (2) is the subject of rea
sonable efforts, under the circumstances, to maintain
its secrecy. -This definition states the majority view,
which is found in the Uniform Trade Secrets Act.
[Cases: Antitrust and Trade Regulation ~413.] 2.
Information that (1) is not generally known or ascer
tainable, (2) provides a competitive advantage, (3) has
been developed at the plaintiff's expense and is used
continuously in the plaintiff's business, and (4) is the
subject of the plaintiff's intent to keep it confidential.
This definition states the minority view, which is found
in the Restatement of Torts 757 cmt. b (1939). [Cases:
Antitrust and Trade Regulation <>.:>413.]
"So long as the owner of a secret keeps it a secret he has a
monopoly. While equity affords protection to trade secrets
against betrayal by those under contract or in confidential
relations with the owners of the secret, there is no differ
ence between contracts as to trade secrets and contracts
as to any other personal property. as far as restraint of
trade is concerned." Harry D. Nims, The Law ofUnfair Com
petition and TradeMarks 406 (1929).
"The concept of protecting trade secrets is related to the
principles of trademark and patent law. The scope of trade
secret protection, however, goes well beyond that of patent
law. Unlike patent law, protection under trade secret law is
not tied to the information's novelty; rather, the essence
of a trade secret is its relative secrecy. Additionally, unlike
patent law, trade secret law draws less from property prin
(iples, and more from the equitable principles surround
ing confidential relationships." Mark A. Rothstein et aI.,
Employment Law 8,18, at 516 (1994).
"The difficulty with defining 'trade secrets' in the abstract
is that there are so many ways to go about it_ In large part,
this is a reflection of the fact that the law of trade secrets,
unlike the law of patents or copyright, is a creature of the
1634 trade slander
common law rather than of statute. In trying to impose a
moral solution on cases of apparent breach of confidence,
judges have juggled competing policy interests while trying
to draw a line of protection that would lead to the result
that they believed was right.... In other words, the devel
opment of trade secret law has been a bit chaotic ...."
James Pooley, Trade Secrets 1.01, at 1-1 to 1-3 (l998).
trade slander. See SLANDER.
tradesman (traydz-m,m), n. 1. One who buys and sells
things for profit; esp., a shopkeeper. 2. A shopkeep
er's employee. 3. A mechanic or artisan whose liveli
hood depends on manual labor; one who is skilled in a
trade. -Also termed tradesperson.
trade surplus. See SURPLUS.
trade union. See UNION.
trade usage. See USAGE.
trading. The business ofbuying and selling, esp. ofcom
modities and securities. [Cases: Commodity Futures
Trading Regulation Securities Regulation 0
35.10-67.15.]
day trading. The act or practice of buying and selling
stock shares or other securities on the same day, esp.
over the Internet, usu. for the purpose of making a
quick profit on the difference between the buying
price and the selling
secondary trading. The buying and selling of securi
ties in the market between members of the public,
involving neither the issuer nor the underwriter of
the securities.
short-term trading. Investment in securities only to
hold them long enough to profit from market-price
fluctuations. [Cases: Securities Regulation 053.10
53.22.1
trading corporation. See CORPORATION.
trading cnrb. A temporary restriction on trading in a
particular security to curtail dramatic price move
ments. -Sometimes shortened to curb. Cf. TRADING
HALT.
trading halt. A temporary suspension oftrading in a
particular security for a specific reason, such as an
order imbalance or a pending news announcement.
Options can be exercised during a trading halt, and
open orders may be canceled. Also termed suspended
trading. Cf. TRADING CURB.
trading partnership. See PARTNERSHIP.
trading voyage. See VOYAGE.
|
CURB.
trading partnership. See PARTNERSHIP.
trading voyage. See VOYAGE.
trading with the enemy. The federal offense ofcarrying
on commerce with a nation or with a subject or ally of
a nation with which the United States is at war. [Cases:
War and National Emergency
traditio (tra-dish-ee-oh), n. [Latin] Roman law. The
simple delivery ofa piece ofproperty by one person to
another with the intention of transferring ownership .
This was the simplest form oftransfer, and ultimately
it was applied to land as well as movables. Construc
tive delivery was developed. Also termed traditio rei. See BREVI MANU; CONSITUTUM POSSESSORIUM. PI.
traditiones (tra-dish-ee-oh-neez).
traditio brevi manu (tra-dish-ee-oh bree 'VI man-yoo).
[Latin] Roman law. The surrender of the mediate pos
session ofa thing to the person who is already in imme
diate possession of it. This is a type ofconstructive
delivery in which a delivery to the mediate possessor
and redelivery to the immediate possessor are unnec
essary. See BREVI MANU. For the other two types of
constructive delivery, see ATTORNMENT; CONSTITUTUM
POSSESSORIUM.
"The first [type of constructive delivery] is that which the
Roman lawyers termed traditio brevi manu, but which has
no recognised name in the language of English law .... If,
for example, I lend a book to someone, and afterwards,
while he still retains it. I agree with him to sell it to him, or
to make him a present of it, I can effectually deliver it to
him in fulfilment of this sale or gift. by telling him that he
may keep it. It is not necessary for him to go through the
form of handing it back to me and receiving it a second
time from my hands." John Salmond, Jurisprudence 306
(Glanville L. Williams ed., 10th ed. 1947).
traditio longa manu (tra-dish-ee-oh long-ga man
yoo). [Latin] Roman law. See CONSTITUTUM POSSESSO
RIUM.
tradition. (14c) 1. Past customs and usages that influence
or govern present acts or practices. [Cases: Customs
and Usages 10.] 2. The delivery of an item or an
estate.
traditional public forum. See PUBLIC FORUM.
traditional surrogacy. See SURROGACY.
traditionary evidence. See EVIDENCE.
traditio rei. See TRADITIO.
trado tibi ecclesiam (trad-oh tib-r e-klee-z[h]ee-am).
[Law Latin] Hist. Eccles. law & Scots law. I deliver this
church (or living) to you . A patron uttered this phrase
when presenting an incumbent to a vacant church. Cf.
ACCIPE ECCLESIAM.
traduce (tra-d[y]oos), vb. (16c) To slander; calumni
ate. -traducement, n.
traffic, n. (16c) 1. Commerce; trade; the sale or exchange
ofsuch things as merchandise, bills, and money. 2. The
passing or exchange ofgoods or commodities from one
person to another for an equivalent in goods or money.
3. People or things being transported along a route. 4.
The passing to and fro ofpeople, animals, vehicles, and
vessels along a transportation route.
traffic, vb. To trade or deal in (goods, esp. illicit drugs
or other contraband) <trafficking in heroin>. [Cases:
Controlled Substances 82.] -trafficking, n.
trafficker, n.
traffic balance. The balance of moneys collected in
payment for transporting passengers and freight.
traffic court. See COURT.
trafficking. The act oftransporting, trading, or dealing,
esp. in people or illegal goods. Cf. PEOPLE-SMUGGLING;
SMUGGLING.
1635 transcarceration
drug trafficking. The act ofillegally producing, import
ing, selling, or supplying significant amounts of a
controlled substance. [Cases: Controlled Substances
82.]
human trafficking. The illegal recruitment, transporta
tion, transfer, harboring, or receipt of a person, esp.
one from another country, with the intent to hold the
person captive or exploit the person for labor, services,
or body parts. _ Human-trafficking offenses include
forced prostitution, forced marriages, sweat-shop
labor, slavery, and harvesting organs from unwill
ing donors. Also termed trafficking in persons. Cf.
PEOPLE-SMUGGLING;. organ trafficking.
organ trafficking. Illegal trafficking in human body
parts, esp. transplantable organs that are offered to
the highest bidder or that have been harvested without
the consent of the donor or the donor's next of kin.
_ In international law, organ trafficking is broadly
included in the offense ofhuman trafficking. -Also
termed trafficking in persons. Cf. human trafficking.
trafficking in persons.!. See human trafficking. 2. See
organ trafficking.
trafficking in persons. See TRAFFICKING.
traffic regulation. A prescribed rule of conduct for
traffic; a rule intended to promote the orderly and safe
flow of traffic. [Cases: Automobiles (;:::::>5(5),7,335.]
trailer clause. An employee's promise to assign to the
employer the rights to all inventions developed while
employed and for a specified time afterward. -For the
covenant to be enforceable, the time restriction must
be reasonable. -Also termed holdover clause.
traitor, n. 1. A person who commits treason against his
or her country. [Cases: Treason (;:::'10.] 2. One who
betrays a person, a cause, or an obligation. -traitor
ous, adj.
tramp, n. 1. A person who roams about from place to
place, begging or living without labor or visible means
ofsupport; a vagrant. 2. TRAMP STEAMER.
tramp corporation. See CORPORATION.
tramp steamer. A ship that is not scheduled to sail
between prearranged ports of call but that stops at
those ports for which it has cargo. _ A tramp steamers
typically carries bulk cargoes such as oil, grain, coal,
steel, iron ore, or lumber, and is contracted with a char
terparty rather than a bill oflading. -Often shortened
to tramp.
tranche (transh), n. [French "slice") Securities. 1. A bond
issue derived from a pooling ofsimilar debt obligations.
A tranche usu. differs from other issues by maturity
date or rate ofreturn. 2. A block ofbonds designated for
sale in a foreign country. -Also spelled tranch; trench.
See COLLATERALIZED MORTGAGE OBLIGATION.
transact, vb. 1. To carryon or conduct (negotiations,
business, etc.) to a conclusion <transact business>.
2. Civil law. To settle (a dispute) by mutual conces
sion. See TRANSACTION (4). 3. To carryon or conduct negotiations or business <refuses to transact with the
enemy>.
transactio (tran-sak-shee-oh), n. [Latin "compromise"]
Roman law. 1he renunciation of a contested claim or
defense in litigation in consideration ofa quid pro quo.
Pl. transactiones (tran-sak-shee-oh-neez).
transaction, n. (17c) 1. The act or an instance of con
ducting business or other dealings; esp., the formation,
performance, or discharge of a contract. 2. Some
thing performed or carried out; a business agreement
or exchange. 3. Any activity involving two or more
persons. 4. Civil law. An agreement that is intended
by the parties to prevent or end a dispute and in which
they make reciprocal concessions. La. Civ. Code art.
3071. transactional, adj.
arm's-length transaction. 1. A transaction between
two unrelated and unaffiliated parties. 2. A transac
tion between two parties, however closely related they
may be, conducted as ifthe parties were strangers, so
that no cantlict of interest arises.
closed transaction. Tax. A transaction in which an
amount realized on a sale or exchange can be estab
lished for the purpose ofstating a gain or loss. [Cases:
Internal Revenue (;:::::>3393.]
colorable transaction. (18c) A sham transaction having
the appearance of authenticity; a pretended transac
tion <the court set aside the colorable transaction>.
transactional audit. See AUDIT.
transactional immunity. See IMMUNITY (3).
transactional lawyer. 1. See LAWYER. 2. See OFFICE
PRACTITIONER.
transactional takeover defense. See TAKEOVER DE
FENSE.
transaction causation. See CAUSATION.
transaction cost. See COST (1).
transaction-or-occurrence test. (1957) A test used to
determine whether, under Fed. R. Civ. P. 13(a), a par
ticular claim is a compulsory counterclaim. _ Four
different tests have been suggested: (1) Are the legal
and factual issues raised by the claim and counterclaim
largely the same? (2) Would res judicata bar a later suit
on the counterclaim in the absence ofthe compulsory
counterclaim rule? (3) Will substantially the same
evidence support or refute both the plaintiff's claim
and the counterclaim? (4) Are the claim and counter
claim logically related? See compulsory counterclaim
under COUNTERCLAIM. [Cases: Federal Civil Procedure
(;:::::>776; Set-offand Counterclaim (;::::'60.)
transaction slip. See CONFIRMATION SLIP,
transcarceration. (1987) The movement of prisoners or
institutionalized mentally ill persons from facility to
facility, rather than from a prison or an institution back
to the community, as when a prisoner is transferred to
a halfway house or to a drug-treatment facility. [Cases:
Prisons <::= 13.3, 13.5.)
1636 transcribe
transcribe, vb. (16c) To make a written or typed copy of
(spoken material, esp. testimony).
transcript, n. (14c) A handwritten, printed, or typed
copy oftestimony given orally; esp., the official record
of proceedings in a trial or hearing, as taken down by
a court reporter. -Also termed report ofproceedings;
reporter's record. [Cases: Appeal and Error C=::>593-611;
Criminal Law C=::> 1104; Federal Courts C=::>694.]
transcription. (16c) 1. The act or process oftranscribing.
2. Something transcribed; a transcript.
transcript of proceedings. A compilation of all docu
ments relating to a bond issue, typically including the
notices, affidavits ofnotices, a bond resolution (or bond
ordinance), official statement, trust indenture and loan
agreements, and minutes of meetings of all authoriz
ing bodies.
transeunt cum universitate (tran-see-;mt k::lm yoo-ni
v::lr-s::l-tay-tee). [Latin] Hist. They are transferred with
the whole estate.
transfer, n. (14c) 1. Any mode ofdisposing of or parting
with an asset or an interest in an asset, including a gift,
the payment of money, release, lease, or creation of a
lien or other encumbrance . The term embraces every
method -direct or indirect, absolute or conditional,
voluntary or involuntary -ofdisposing ofor parting
with property or with an interest in property, including
retention of title as a security interest and foreclosure
of the debtor's equity of redemption. 2. Negotiation of
an instrument according to the forms oflaw . The four
methods of transfer are by indorsement, by delivery,
by assignment, and by operation oflaw. [Cases: Bills
and Notes C=::> 176-222.] 3. A conveyance of property
or title from one person to another. [Cases: Bills and
Notes C=::> 176-222.]
colorable transfer. A sham transfer having the appear
ance of authenticity; a pretended transfer. See ILLU
SORY-TRANSFER DOCTRINE. [Cases: Fraudulent
Conveyances C=::> 109, l31.1.]
constructive transfer. (1852) A delivery of an item
esp. a controlled substance -by someone other than
the owner but at the owner's direction. [Cases: Con
trolled Substances C=::>32, 82.]
incomplete transfer. Tax. A decedent's inter vivos
transfer that is not completed for federal estate-tax
purposes because the decedent retains significant
powers over the property's possession or enjoyment.
Because the transfer is incomplete, some or all of the
property's value will be included in the transferor's
gross estate. IRC (26 USCA) 2036-2038. [Cases:
Internal Revenue C=::>4159(3).]
inter vivos transfer (in-t::lrVI-Vohs orvee-vohs). (1930)
A transfer of property made during the transferor's
lifetime.
testamentary transfer. A transfer made in a will.
The transfer may be of something less than absolute
ownership. Cf. testamentary gift under GIFT. [Cases:
Wills C=::>86.] transfer in contemplation of death. See gift causa
mortis under GIFT.
transfer in fraud ofcreditors. (1883) A conveyance of
property made in an attempt to prevent the trans
feror's creditors from making a claim to it. [Cases:
Fraudulent Conveyances C=::> 1.]
transfer, vb. (14c) 1. To conveyor remove from one place
or one person to another; to pass or hand over from one
to another, esp. to change over the possession or control
of. 2. To |
to another; to pass or hand over from one
to another, esp. to change over the possession or control
of. 2. To sell or give.
transferable (trans-f::lr-::l-b::ll), adj. (14c) Capable of being
transferred, together with all rights of the original
holder.
transferable letter ofcredit. See LETTER OF CREDIT.
transferable vote. See single transferable vote under VOTE
(1).
transfer agent. See AGENT (2).
transfer-agent-run dividend-reinvestment plan. See
DIVIDEND-REINVESTMENT PLAN.
transferee. One to whom a property interest is
conveyed.
transferee liability. (1951) Tax. The liability of a trans
feree to pay taxes owed by the transferor . This lia
bility is limited to the value of the asset transferred.
The Internal Revenue Service can, for example, force
a donee to pay the gift tax when the donor who made
the transfer cannot pay it. IRC (26 USCA) 6901
6905. [Cases: Internal Revenue C=::>4817; Taxation C=::>
3480.]
transference. Scots law. The act of substituting a repre
sentative for a deceased litigant in a pending action.
This is similar to the common law's substitution of
parties.
transfer hearing. See HEARING.
transfer in fraud ofcreditors. See TRANSFER.
transfer of a case. (1843) The removal of a case from
the jurisdiction of one court or judge to another by
lawful authority. -Also termed transfer ofa cause. See
REMOVAL (2). [Cases: Removal of Cases C=::> 16.]
transfer ofvenue. See CHANGE OF VENUE.
transferor. (1875) One who conveys an interest in
property.
transfer payment. (usu. pl.) (1945) A governmental
payment to a person who has neither provided goods
or services nor invested money in exchange for the
payment . Examples include unemployment com
pensation and welfare payments. [Cases: United States
C=::>82(1).]
transfer price. See PRICE.
transferred intent. See INTENT (1).
transferred-intent doctrine. (1957) The rule that ifone
person intends to harm a second person but instead
unintentionally harms a third, the first person's criminal
or tortious intent toward the second applies to the third
as well. Thus, the offender may be prosecuted for an
1637 translation
intent crime or sued by the third person for an inten
tional tort. See INTENT. [Cases: Assault and Battery C~:>
3,49; Homicide 702; Torts ~lIS.]
transferred malice. See MALICE.
transfer statute. A provision that allows or mandates the
trial ofa juvenile as an adult in a criminal court for a
criminal act. -Every state has some form of transfer
statute. The Supreme Court has held that a juvenile
cannot be transferred to criminal court under a discre
tionary statute "without ceremony without hearing,
without effective assistance of counsel, without a state
ment of reasons." Kent v. United States, 383 U.S.
554,86 S.Ct. 1045, 1053-54 (1966). [Cases: Infants
68.7.]
automatic-transfer statute. A law requiring the
transfer from delinquency court to criminal court
for certain statutorily enumerated offenses if certain
statutory requirements are met. [Cases: Infants ~
68.5, 6S.7(2).]
discretionary-transfer statute. A law that allows, but
does not mandate, the transfer from delinquency
court to criminal court for certain statutorily enu
merated offenses ifcertain statutory requirements
are met. -The prosecutor has discretion to request
the transfer, and the judge has discretion to order the
transfer. [Cases: Infants ~6s.7.1
reverse transfer statute. A provision that allows a
criminal court to return certain cases to juvenile
court. [Cases: Infants ~6S.6.]
Transfers to Minors Act. See UNIFORM TRANSFERS TO
MINORS ACT.
transfer tax. See generation-skipping transfer tax under
TAX.
transfer warranty. See WARRANTY (2).
transformative use. Copyright. The use of copyrighted
material in a manner, or for a purpose, that differs
from the original use in such a way that the expres
sion, meaning, or message is essentially new . The
term was coined by Judge Pierre N. Leval in a 1990
law-review article entitled Toward a Fair Use Standard,
103 Harv. L. Rev. 1105, 1111 (1990). The concept was
first applied by the U.S. Supreme Court in Campbell
v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164
(1994). The Court held that the transformative use in
that case was a fair, noninfringing use ofthe plaintiff's
copyright. [Cases: Copyrights and Intellectual Property
(;::::' 53.2.]
transgenic (tranz-jen-ik), adj. Patents. Of, relating to,
or describing a living organism that has been geneti
cally altered by introducing recombinant DNA from
another organism.
transgress, vb. 1. To exceed the limits of (a law, rule,
regulation, etc.); to break or violate. 2. To pass over
(limits, boundaries, etc.). transgressor, n.
transgression. Archaic. See MISDEMEANOR.
transgressione, ad audiendum et terminandum (trans
gres[h]-ee-oh-nee, ad aw-dee-en-d;Jm et t;Jf-m;J-nand;Jm). See DE TRANSGRESSIONE, AD AUDIENDUM ET
TERMINANDUM.
transgressive trust. See TRUST.
transient (tran-sh;Jnt), adj. (16c) Temporary; imperma
nent; passing away after a short time.
transient, n. 1. A person or thing whose presence is tem
porary or fleeting. 2. TRANSIENT PERSON.
transient foreigner. One who visits a country without
the intent to remain.
transient jurisdiction. See TCRISDICTlON.
transient merchant. A trader who sells merchandise at
a temporary location without intending to become a
permanent merchant in that place. [Cases: Licenses
~15(2).]
transient person. (18c) One who has no legal residence
within a jurisdiction for the purpose of a state venue
statute. Also termed transient. [Cases: Venue
IS.]
transit, n. (15c) 1. 1he transportation of goods or persons
from one place to another. [Cases: Insurance
2137(3).] 2. Passage; the act of passing.
transitional alimony. See rehabilitative alimony under
ALIMONY.
transition phrase. Patents. In a patent claim, the word
or phrase that relates the preamble to the body . The
transition is often the term "comprising," "having,"
"including," "consisting of," or "consisting essentially
of." Cf. PREAMBLE (2); BODY OF A CLAIM.
transitive covenant. See COVENANT (1).
transitory (tran-s;J-tor-ee ortran-za-), adj. (14c) Passing
from place to place; capable of passing or being changed
from one place to another.
transitory action. See ACTION (4).
transitory treaty. See TREATY (1).
transitory wrong. See WRONG.
transit passage. Int'llaw. The right of a vessel or airplane
to exercise freedom ofnavigation and overflight solely
for the purpose ofcontinuous and expeditious transit
between one part of the high seas or an exclusive
economic zone and another part ofthe high seas or an
exclusive economic zone. Also termed right oftransit
passage. Cf. INNOCENT PASSAGE.
transit terra cum onere (tran-sit [or tran-zit] ter-a bm
on-ar-ee). [Law l.atin] Hist. The land passes with its
burdens.
translation, n. 1. The transformation oflanguage from
one form to another; esp., the systematic rendering
of the language of a book, document, or speech into
another language.
"Generally speaking, a translation need not consist of
transferring from one language into another; it may apply
to the expression of the same thoughts in other words of
the same language." Rasmussen v. Baker, 50 P. 819, 826
(Wyo. 1897).
translative 1638
2. Archaic. The transfer ofproperty. 3. Eccles. law. The
removal ofa bishop from one diocese to another.
translative (trans-or tranz-Iay-tiv), adj. Making or
causing a transfer or conveyance.
translative fact. See FACT.
transmission. Civil law. The passing of an inheritance
to an heir.
transmit, vb. (15c) 1. To send or transfer (a thing) from
one person or place to another. 2. To communicate.
transmittal letter. (1914) A nonsubstantive letter that
establishes a record of delivery, such as a letter to a court
clerk advising that a particular pleading is enclosed for
filing. Lawyers have traditionally opened transmit
tal letters with the phrase "Enclosed please find," even
though that phrasing has been widely condemned in
business-writing handbooks since the late 19th century.
A transmittal letter may properly begin with a range
ofopeners as informal as "Here is" to the more formal
"Enclosed is." -Also termed cover letter.
transmutation. A change in the nature of something;
esp., in family law, the transformation of separate
property into marital property, or of marital property
into separate property. [Cases: Divorce C=>252.3(3);
Husband and Wife C=>249(6).J
transnational adoption. See international adoption
under ADOPTION.
transnational corporation. See multinational corpora
tion under CORPORATION.
transnational law. 1. The amalgam of common prin
ciples of domestic and international law dealing esp.
with problems arising from agreements made between
sovereign states and foreign private parties. 2. The
problems to which such principles apply. Cf. INTER
NATIONAL LAW.
transparency. Openness; clarity; lack of guile and
attempts to hide damaging information . The word
is used offinancial disclosures, organizational policies
and practices, lawmaking, and other activities where
organizations interaction with the public.
transport, vb. To carry or convey (a thing) from one
place to another.
transportation, n. (l6c) 1. The movement of goods
or persons from one place to another by a carrier. 2.
Criminal law. A type of punishment that sends the
criminal out of the country to another place (usu. a
penal colony) for a specified period. Cf. DEPORTA
TION.
Transportation Security Administration. The federal
agency charged with promoting safety and security
of air, water, rail, and highway transportation . The
agency was created in the Department ofTransporta
tion after the terrorist attacks of September 11, 2001,
and was transferred to the Department of Homeland
Security in 2002.
transracial adoption. See ADOPTION. transsexual. A person born with the physical character
istics ofone sex but who has undergone, or is preparing
to undergo, sex-change surgery. See SEX REASSIGN
MENT.
transshipment. Maritime law. The act of taking cargo
out of one ship and loading it on another. Trans
shipment may also involve transfer ofcargo to another
mode of transportation, such as rail or truck. [Cases:
Shipping C=> 112.J -transship, vb.
transvestitive fact. See FACT.
trap, n. (bef. 12c) 1. A device for capturing living crea
tures, such as a pitfall, snare, or machine that shuts
suddenly.
mantrap. A booby-trap; esp., a device to catch a tres
passer or burglar. A mantrap is not illegal if it is
designed merely to sound an alarm and not cause
bodily harm. Illegal mantraps include manufactured
devices such as spring guns, and dangerous hidden
conditions (manufactured or natural) that can injure
a person, such as pitfalls. -Also spelled man-trap.
2. Any device or contrivance by which one may be
caught unawares; stratagem; snare. 3. Torts. An ultra
hazardous hidden peril of which the property owner or
occupier, but not a licensee, has knowledge . A trap
can exist even if it was not designed or intended to catch
or entrap anything. [Cases: Negligence C=>1040(3).J
trashing. DECONSTRUCTION.
trauma-pricing. See DRAMA-PRICING.
travaux preparatoires (tra-voh pray-par-;:)-twah[r]z).
[French "preparatory works"] Materials used in prepar
ing the ultimate form of an agreement or statute, and
esp. of an international treaty; the draft or legislative
history ofa treaty. See LEGISLATIVE HISTORY.
travel-accident insurance. See INSURANCE.
Travel Act. A federal law, enacted in 1961, that prohib
its conduct intended to promote, direct, or manage
illegal business activities in interstate commerce . This
statute was enacted to create federal jurisdiction over
many criminal activities traditionally handled by state
and local governments to help those jurisdictions cope
with increasingly complex interstate criminal activity.
18 USCA 1952. [Cases: Commerce C=>82.1O.]
traveled place. (1894) A place where the public has, in
some manner, acquired the legal right to travel.
traveler, n. A person who passes from place to place, for
any reason.
traveler's check. See CHECK.
traveler's letter ofcredit. See LETTER OF CREDIT.
travel expense. See |
See CHECK.
traveler's letter ofcredit. See LETTER OF CREDIT.
travel expense. See EXPENSE.
traverse (trav-;:)rs), n. (15c) Common-law pleading.
A formal denial of a factual allegation made in the
opposing party's pleading <Smith filed a traverse to
Allen's complaint, asserting that he did not know
ingly provide false information>. See DENIAL. [Cases:
Pleading C=> 112-129.] -traverse (trav-;:)rs or tr;:)
vars), vb.
1639 Treas. Reg.
"It is said that the technical term traverse, from transverto,
to turn over, is applied to an issue taken upon an indict
ment for a misdemeanor, and means nothing more than
turning over or putting off the trial to a following session or
assize; and that thus it is that the officer of the court asks
the party whether he is ready to try then, or will traverse to
the next session; though some have referred Its meaning
originally to the denying or taking issue upon an indict
ment, without reference to the delay of trial, and which
seems more correct," I Joseph Chitty, A Practical Treatise
on the Criminal Law 486 (2d ed. 1826).
common traverse. (1841) A traverse consisting of a
tender of issue that is, a denial accompanied by a
formal offer for decision of the point denied -with
a denial that expressly contradicts the terms of the
allegation traversed. Also termed specific traverse.
[Cases: Pleading ~117.]
"The common or specific traverse is an express denial
of a particular allegation in the opposing pleading in the
terms ofthe allegation, accompanied by a tender of issue
or formal offer of the point denied for trial." Benjamin J.
Shipman, Handbook ofCommonLaw Pleading 168, at 303
(Henry Winthrop Ballantine ed., 3d ed. 1923).
cumulative traverse. (1848) A traverse that analyzes
a proposition into its constituent parts and traverses
them cumulatively. -It amounts to the same thing as
traversing the one entire proposition, since the several
parts traversed must all make up one entire proposi
tion or point.
general traverse. (l7c) A denial of all the facts in an
opponent's pleading.
special traverse. (I8c) A denial of one material fact in
an opponent's pleading; a traverse that explains or
qualifies the denial. -The essential parts ofa special
traverse are an inducement, a denial, and a verifica
tion. [Cases: Pleading ~118.]
specific traverse. See common traverse.
traverse jury. See petit jury under JURY.
traverser, rI. (14c) One who traverses or denies a
pleading.
traverse the requirement, vb. Patents. To (1) respond in
detail to a patent examiner's decision that the patent
application claims more than one invention and (2)
ask that the restriction requirement be reconsidered.
-The traverse must specifically explain why restric
tion should not be required, not merely assert that the
requirement is wrong. Failure to traverse a requirement
forfeits any rights to appeal the decision. [Cases: Patents
(;:::?104.1
treachery, n. A deliberate and willful betrayal of trust
and confidence.
treason, n. (l3c) The offense ofattempting to overthrow
the government of the state to which one owes alle
giance, either by making war against the state or by
materially supporting its enemies. -Also termed high
treason; alta proditio. Cf. SEDITION. [Cases: Treason ~
1.] -treasonable, treasonous, adj.
"The judgment of high treason was, until very lately, an
exception to the merciful tenor of our judgments. The
least offensive form which is given in the books is, that
the offender 'be carried back to the place from whence he came, and from thence to be drawn to the place of
execution, and be there hanged by the neck, and cut down
alive, and that his entrails be taken out and burned before
his face, and his head cut off, and his body divided into
four quarters, and his head and quarters disposed of at
the king's pleasure.' Some of the precedents add other
Circumstances, of still more grossness and aggravation.
But this horrible denunciation was very seldom executed
in its more terrible niceties." I Joseph Chitty, A Practical
Treatise on the Criminal Law 702 (2d ed. 1826).
"[S]everal important characteristics marked off high
treason from all other crimes. For one thing, it earned a
peculiarly ghastly punishment. For another, it was 'under
gyable,' while every felony was 'dergyable' unless some
statute had otherwise ordained. Thirdly, while the felon's
land escheated to his lord, the traitor's land was forfeited
to the king. This last distinction influenced the develop'
ment of the law." 2 Frederick Pollock 8. Frederic William
Maitland, History ofEnglish Law Before the Time ofEdward
1500 (2d ed. 1899).
'Treason against the United States, shall consist only in
levying war against them, or in adhering to their Enemies,
giving them Aid and Comfort. No Person shall be convicted
of Treason unless on the Testimony of two Witnesses to
the same overt Act, or on Confession in open Court." U.S.
Const. art. III, 3.
constructive treason. 1. Speech that manifests a desire
or intent to make war against the state or materially
support an enemy, even though the speech is unac
companied by acts that further the desire or intent.
_ There is no crime of constructive treason in U.S.
law because treason requires an affirmative act, and
intent alone cannot substitute for an act. Cf. SEDITION.
[Cases: Treason ~1.] 2. Hist. Speech that is critical
ofthe government. -This sense arose during the reign
ofHenry VIII ofEngland. Critical speech remained a
capital crime until the early 18th century.
petty treason. Archaic. Murder of one's employer or
husband. -Until 1828, this act was considered treason
under English law. Also spelled petit treason.
"The frequent reference to high treason is a carryover
from an ancient division of the offense that has long since
disappeared. In the feudal stage of history the relation
of lord to vassal was quite similar to the relation of king
to subject. The relation of husband to wife came to be
regarded in the same category, as also did the relation
of master to servant, and that of prelate to clergyman.
And just as it was high treason to kill the king, so a mali
cious homicide was petit treason if it involved a killing
of (originally, lord by vassal, and later) husband by Wife,
master by mistress or servant, or prelate by clergyman.
When the special brutality provided by the common law
for the punishment of petit treason disappeared, this crime
became merged with murder and only one crime of treason
remained." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law498-99 (3d ed. 1982).
treasonable misdemeanor. English law. An act that is
likely to endanger or alarm the monarch, or disturb
the public peace in the presence ofthe monarch. Cf.
TREASON FELONY.
treason felony. English law. An act that shows an inten
tion of committing treason, unaccompanied by any
further act to carry out that intention. -This offense
usu. results in life imprisonment rather than the death
penalty. Cf. TREASONABLE MISDEMEANOR.
Treas. Reg. abbr. TREASURY REGULATION.
1640 treasurer
treasurer. An organization's chief financial officer. The
treasurer's duties typically include prudently depos
iting (or, if authorized, investing) and safeguarding
the organization's funds and otherwise managing its
finances; monitoring compliance with any applicable
law relating to such finances and filing any required
report; disbursing money as authorized; and reporting
to the organization on the state ofthe treasury. -Also
termedfinance officer;financialsecretary; quartermas
ter. [Cases: Corporations ~30L]
city treasurer. A local officer who is responsible for
managing municipal funds.
Treasurer, Lord High. See LORD HIGH TREASURER.
Treasurer ofthe United States. The officer in the U.S.
Department ofthe Treasury responsible for overseeing
the operations of the Bureau of Engraving and Printing
and the U.S. Mint.
treasure trove. [Law French "treasure found"] (l6c)
Valuables (usu. gold or silver) found hidden in the
ground or other private place, the owner of which is
unknown. -At common law in the United States,
the finder ofa treasure trove can usu. claim good title
against all except the true owner. But until 1996, any
treasure trove found in the United Kingdom belonged
to the Crown.
"Treasure hid in the earth. not upon the earth, nor in the
sea, and coin though not hidden, being found is the king's;
we call it treasure trove." Sir Henry Finch, Law, or a Dis
course Thereof 177 (1759).
''Treasure trove consists essentially of articles of gold and
Silver, intentionally hidden for safety in the earth or in
some secret place, the owner being unknown, although it
is probable that the category might include articles made
from the required metals buried in the ground for other
purposes, for example in connection with an ancient sep
ulture. In the United States, the state has never claimed
title to lost property by virtue of its character as treasure
trove, and it has been stated that the law relating thereto
is merged with that of lost goods generally, although there
is authority for the proposition that while treasure trove
in the United States belongs to the finder, found goods
not of that character go to the owner of the locus in quo."
Ray Andrews Brown, The Law ofPersonal Property 13, at
27-28 (2d ed. 1955).
Treasuries. (1922) Debt obligations of the federal govern
ment backed by the full faith and credit of the govern
ment. See TREASuRY BILL; TREASURY BOND; TREASURY
CERTIFICATE; TREASURY NOTE. [Cases: United States
treasury. 1. A place or building in which stores ofwealth
are kept; esp., a place where public revenues are depos
ited and kept and from which money is disbursed to
defray government expenses. [Cases: United States
81.] 2. (cap.) DEPARTMENT. OF THE TREASURY.
Treasury, First Lord. See FIRST LORD OF THE TREASURY.
Treasury Bench. In the British House of Commons, the
first row of seats on the right hand of the speaker. _
lhe Treasury Bench is occupied by the First Lord of the
Treasury or principal minister of the Crown.
Treasury bill. (18c) A short-term debt security issued
by the federal government, with a maturity of 13, 26, or 52 weeks. -These bills -auctioned weekly or
quarterly -pay interest in the form of the difference
between their discounted purchase price and their par
value at maturity. Abbr. T-bill. [Cases: United States
~89.1
Treasury bond. (1858) A long-term debt security issued
by the federal government, with a maturity of 10 to
30 years. -These bonds are considered risk free, but
they usu. pay relatively little interest. -Abbr. T-bond.
[Cases: United States v91.]
TIPS bond. A treasurv bond whose face value is
adjusted to keep pace ~ith the inflation rate. _ 'lhe
acronym TIPS stands for Treasury inflation-protected
securitie$. Abbr. TIPS.
treasury certificate. An obligation of the federal gov
ernment maturing in one year and on which interest is
paid on a coupon basis. [Cases: United States ~90.1
Treasury Department. See DEPARTMENT OF THE
TREASGRY.
Treasury inflation-protected securities. See TIPS bond
under TREASURY BOND.
Treasury note. (ISc) An intermediate-term debt security
issued by the federal government, with a maturity of
two to ten years. -These notes are considered risk
free, but they usu. pay relatively little interest. Abbr.
Tnote. [Cases: United States C:~90.1
Treasury Regulation. (1860) A regulation promulgated
by the U.S. Treasury Department to explain or inter
pret a section of the Internal Revenue Code . Treasury
Regulations are binding on all taxpayers. Abbr.
Treas. Reg. [Cases: Internal Revenue 0::>3038-3042,
3045,3048.J
treasury security. See treasury stock under STOCK.
treasury share. See treasury stock under STOCK.
treasury stock. See STOCK.
treasury warrant. See WARRANT (2).
treating-physician rule. The principle that a treating
physician's diagnoses and findings about the degree of
a social-security claimant's impairment are binding
on an administrative-law judge in the absence ofsub
stantial contrary evidence. [Cases: Social Security and
Public Welfare C-::;, 143.65.]
treaty. 1. An agreement formally signed, ratified, or
adhered to between two nations or sovereigns; an
international agreement concluded between two or
more states in written form and governed by interna
tionallaw. Also termed accord; convention; covenant;
declaration; pact. Cf. EXECUTIVE AGREEMENT. [Cases:
Treaties
"[TJhe legal terminology used by the United States to
describe international agreements is markedly different
from that employed elsewhere. Under the U.S. Constitution,
the term 'treaty' has a particular meaning an agreement
made by the PreSident with the advice and consent of the
Senate." David J. Bederman, International Law Frameworks
158 (2001).
1641
commer |
David J. Bederman, International Law Frameworks
158 (2001).
1641
commercial treaty. A bilateral or multilateral treaty
concerning trade or other mercantile activities .
Such a treaty may be general in nature, as by supply
ing the framework oflong-term commercial relations.
Or it may be specific, as by detailing the conditions
of particular branches of trade or other commercial
transactions. Sometimes a treaty of this kind deals
with an individual project, such as a guaranty agree
ment. [Cases: Treaties C:=>8.]
defensive treaty. A treaty in which each party agrees to
come to the other's aid if one is attacked by another
nation. See treaty ofalliance.
"Defensive treaties, as generally understood, are made to
secure the parties to them against aggression from other
states. They may, also, aim at the maintenance of internal
quiet, or of neutrality amid the conflicts of neighboring
powers. To attempt to gain any of these objects is not nec
essarily contrary to the law of nations or to natural justice.
Mutual aid, indeed, against the disturbers of internal quiet,
may secure an absolute government against popular
revolutions in favor of liberty, but if a confederation or
alliance may secure to its members the enjoyment of free
institutions, there is no reason, as far as international law
is concerned, why institutions of an opposite kind may
not support themselves in the same way." Theodore D.
Woolsey, Introduction to the Study of International Law
107, at 171 (5th ed. 1878).
dispositive treaty (dis-poZ-;Hiv). A treaty by which a
country takes over territory by impressing a special
character on it, creating something analogous to a
servitude or easement in private law.
guarantee treaty. An agreement between countries
directly or indirectly establishing a unilateral or recip
rocal guarantee. -Also spelled guaranty treaty.
Also termed treaty ofguarantee; quasi-guarantee
treaty; pseudo-guarantee treaty.
"In many instances where the term 'guarantee' is used
in international treaties, the contracting parties merely
intend to underline their Willingness to comply with the
obligation they have entered into. Obligations of this kind
do not fall within the concept of guarantee in the proper
sense of the term. In this particular respect, the expression
'pseudo-guarantees' or 'quasiguarantee treaties' is used."
George Ress, "Guarantee Treaties," in 2 Encyclopedia of
Public International Law 634 (1995).
mixed treaty. A treaty with characteristics of different
types of treaties, esp. contrasting types (e.g., perma
nent and transitory, or personal and real).
nonaggression treaty. See NONAGGRESSION PACT.
nonproliferation treaty. A treaty forbidding the
transfer of nuclear weapons from a country with a
nuclear arsenal to one that does not have nuclear
weapons capability. -The first such treaty was con
cluded in 1968, and now more than 100 nations have
agreed to its terms. Also termed nuclear-nonpro
liferation treaty.
offensive treaty. A treaty in which the parties agree to
declare war jointly on another nation and join forces
to wage the war. See treaty ofalliance.
peace treaty. A treaty Signed by heads ofstate to end a
war. -Also termed treaty ofpeace. Cf. TRUCE. [Cases:
War and National EmergencyC:=>33.] treaty
"A peace differs not from a truce essentially in the length
of its contemplated duration, for there may be very long
armistices and a state of peace continuing only a definite
number of years. The ancients often concluded treaties
of peace which were to expire after a certain time ...."
Theodore D. Woolsey, Introduction to the Study of Interna
tional Law 158, at 268 (5th ed. 1878).
permanent treaty. A treaty that contemplates ongoing
performance (as with a treaty of neutrality).
personal treaty. Hist. A treaty relating exclusively to
the contracting sovereign as a person. -Examples
of personal treaties are family alliances and treaties
guaranteeing the throne to a particular sovereign and
his or her family. With the advent of constitutional
government in Europe, personal treaties have lost
their importance.
pseudo-guarantee treaty. See guarantee treaty.
quaSi-guarantee treaty. See guarantee treaty.
real treaty. A treaty relating solely to the subject matter
of the compact, independently of the persons of the
contracting sovereigns. _ Real treaties continue to
bind the state even when the heads of government
change.
transitory treaty. A treaty carried into effect once and
for all, so that it is complete when the act has been
performed (as with a treaty of cession).
treaty ofalliance. A treaty establishing mutual and
reciprocal support obligations . A treaty ofalliance
may be for support in defense, aggression, or both.
See defenSive treaty; offensive treaty.
"A treaty ofalliance can bind the parties to no injustice, nor
justify either of them in being accessory to an act of bad
faith on the part of another. Hence a defensive, still more
an offenSive alliance, can only contemplate, if lawful, the
warding off of intended injustice." Theodore D. Woolsey,
Introduction to the Study of!nternational Law 107, at 172
(5th ed. 1878).
treaty ofguarantee. See guarantee treaty.
treaty ofneutrality. A treaty in which the parties agree
not to engage in any aggressive action against one
another, whether indiVidually or jOintly with others,
and not to interfere with the other party's affairs.
lhere is no commitment to aid another party in
the event of war -only to refrain from becoming
involved.
"Treaties ofneutrality are reciprocal engagements to have
no part in the conflicts between other powers to remain
at peace in an apprehended or an actual war. They are
suggested by, and prevent the evils of that interference
of nations in each other's affairs, for the preservation of
the balance of power or the safety of the parties interfer
ing, which is so common in modern history." Theodore
D. Woolsey, Introduction to the Study of International Law
107, at 172 (5th ed. 1878).
treaty ofpeace. See peace treaty.
2. A contract or agreement between insurers provid
ing for treaty reinsurance. See treaty reinsurance under
REINSURANCE. [Cases: Insurance C:=>3593.] 3. A nego
tiated contract or agreement between private persons.
1642 Treaty Clause
private treaty. An agreement to convey property nego
tiated by the buyer and seller or their agents. _ This
term is esp. common in the u.K.
Treaty Clause. The constitutional provision giving the
President the power to make treaties, with the advice
and consent ofthe Senate. U.S. Canst. art. II, 2. [Cases:
Treaties
treaty-created law. See CONVENTIONAL LAW.
treaty-made law. See CONVENTIONAL LAW.
treaty ofreinsurance. See REINSURANCE TREATY.
treaty power. (1835) The President's constitutional
authority to make treaties, with the advice and consent
of the Senate. See TREATY CLAUSE. [Cases: Treaties
2.]
treaty reinsurance. See REINSURANCE.
treble damages. See DAMAGES.
trebucket (tree-b:::lk-it). See CASTIGATORY.
trend. A price pattern in the stock market generally or
in a particular stock.
major trend. A long-term trend ofthe stock market;
a general increase or decrease of stock prices over
an extended period. -Also termed fundamental
trend.
market trend. The direction of stock-market prices over
a several-month period.
trespass (tres-p:::ls or tres-pas), n. (13c) 1. An unlawful act
committed against the person or property of another;
esp., wrongful entry on another's real property. Cf.
unlawful entry under ENTRY (1). [Cases: Trespass (;=:
1-15.] 2. At common law, a legal action for injuries
resulting from an unlawful act ofthis kind. 3. Archaic.
MISDEMEANOR. -trespass, vb. trespassory (tres
p:::l-sor-ee), adj.
"The familiar legend on notice-boards, 'Trespassers will be
prosecuted,' implies that it is a crime, but this may usually
be dismissed as 'a wooden lie.' Yet in time past the idea
was correct, for trespass of any sort was punishable by
fine and imprisonment as well as redressible by an action
for damages, and actually it was not until 1694 that the
punitive element disappeared although it had faded into
obsolescence long before that date. But nowadays trespass
is never criminal except under special statutes which make
it punishable ..." P.H. Winfield, A Textbook of the Lawof
Tort 90, at 307 (5th ed. 1950).
"The term trespass has been used by lawyers and laymen
in three senses of varying degrees of generality. (1) In its
widest and original signification it includes any wrongful
act any infringement or transgression of the rule of right.
This use is common in the Authorised Version of the Bible,
and was presumably familiar when that version was first
published. But it never obtained recognition in the techni
cal language of the law, and is now archaic even in popular
speech. (2) In a second and narrower signification -its
true legal sense -the term means any legal wrong for
which the appropriate remedy was a writ of trespass -viz.
any direct and forcible injury to person, land, or chattels.
(3) The third and narrowest meaning of the term is that in
which, in accordance with popular speech, it is limited to
one particular kind of trespass in the second sense viz.
the tort of trespass to land (trespass quare clausum fregit)."
R.F.V. Heuston, Salmond on the Law of Torts 4 (] 7th ed.
1977). "Before the word 'misdemeanor' became well established
the old writers tended to use the word 'trespass' to indicate
an offense below the grade of felony. And it was used
at times by Blackstone for this purpose, as in the phrase
'treason, felony, or trespass.'" Rollin M. Perkins & Ronald
N. Boyce, Criminal Law 405 (3d ed. 1982).
cattle-trespass. Hist. Trespass by one's cattle or other
animals on another's land, as a result of which the
other might either distrain them damage feasant or
sue for trespass in the local courts. -At first (from
the early 13th century) this type of trespass applied
only to intentional trespass by the keeper ofthe cattle,
but in 1353 it was extended to beasts that had merely
escaped. This type of trespass gave rise to strict liabil
ity. [Cases: Animals (;=:89.]
"It has long been settled that liability for cattle-trespass is
independent of negligence, and it is that which constitutes
its strictness. And, in spite of some confusion in time past,
it is quite distinct from the SCienter type of liability. In Lee
v. Riley [(1865), 18 CB. (N.5.) 722] the defendant's mare
strayed through a gap in his fence, which it was his duty to
repair, to the plaintiff's land and there quarrelled with and
kicked the plaintiff's horse. The defendant was held liable
for cattle-trespass. A great deal of argument was expended
at the trial on whether the defendant had notice of the
ferocious disposition of his mare, but Erie, CJ., pointed out
that, however relevant that might have been in a scienter
action, it was beSide the mark in one for cattle-trespass."
P.H. Winfield, A Textbook of the Law of Ton 148, at 518
(5th ed. 1950).
constructive trespass. See trespass to chattels.
continuing trespass. A trespass in the nature of a per
manent invasion on another's rights, such as a sign
that overhangs another's property. [Cases: Trespass
criminal trespass. 1. A trespass on property that is
clearly marked against trespass by signs or fences.
[Cases: Trespass (;:::"81.] 2. A trespass in which
the trespasser remains on the property after being
ordered off by a person authorized to do so.
innocent trespass. A trespass committed either unin
tentionally or in good faith. [Cases: Trespass
joint trespass. A trespass that two or more persons
have united in committing, or that some have actually
committed while others commanded, encouraged, or
directed it. [Cases: Trespass (;::c:;31.]
permanent trespass. A trespass consisting ofa series of
acts, done on consecutive days, that are of the same
nature and that are renewed or continued from day
to day, so that the acts in the aggregate form one indi
visible harm.
trespass ab initio (ab i-nish-ee-oh). An entry on land
that, though begun innocently or with a privilege,
is deemed a trespass from the beginning because of
conduct that abuses the privilege. [Cases: Trespass
trespass by relation. A trespass committed when the
plaintiffhad a right to immediate possession ofland
but had not yet exercised that right. _ When the plain
tiff takes possession, a legal fiction treats the plainti ff
as having had posseSSion ever since the accrual of the
1643
right of entry. This is known as trespass by relation
because the plaintiff's possession relates back to the
time when the plaintiff first acquired a right to pos
session.
trespass de bonis asportatis (dee hoh-nis as-par-tay
tis). [Latin "trespass for carrying goods away"] 1. A
wrongful taking of chattels . This type of trespassory
taking was also an element of common-law larceny.
2. At common law, an action to recover damages for
the wrongful taking of ch |
element of common-law larceny.
2. At common law, an action to recover damages for
the wrongful taking of chattels. Abbr. trespass
d.b.a. -Often shortened to trespass de bonis. -Also
termed trespass to personal property. [Cases: Trespass
C::06.]
trespass on the case. (ISc) At common law, an action
to recover damages that are not the immediate result
of a wrongful act but rather a later consequence.
This action was the precursor to a variety of modern
day tort claims, including negligence, nuisance, and
business torts. -Often shortened to case. -Also
termed action on the case; breve de transgressione
super casum. [Cases: Trespass 1, 16, 17.]
"The most important of the writs framed under the author
ity of the statute of Westminster 2 is that of 'trespass on
the case: to meet cases analogous to trespass in delict,
but lacking the element of direct or immediate force or
violence. This writ gave a form of action in which the court
was enabled to render judgment of damages in cases of
fraud, deceit, negligence, want of skill, defamation oral or
written, and all other injurious acts or omissions resulting
in harm to person or property, but wanting the vi et armis,
the element of direct force and violence, to constitute
trespass." Edwin E. Bryant, The Law ofPleading Under the
Codes of Civil Procedure 7 (2d ed. 1899).
"Common law recognizes a distinction between the actions
of trespass vi et armis (or simply trespass) and trespass on
the case. This distinction has been expressed by stating
that a tort committed by the direct application of force is
remediable by an action for trespass, while a tort accom
plished indirectly is a matter for trespass on the case.
Other authority makes the distinction on the basis of the
defendant's intent, stating that trespass involves a willful
and deliberate act while trespass on the case contemplates
an act or omission resulting from negligence." 1 Am. Jur.
2d Actions 23, at 738 (1994).
trespass quare clausum fregit (kwair-ee-klaw-zam
free-jit). [Latin "why he broke the close"] (17c) 1.
A person's unlawful entry on another's land that is
visibly enclosed . This tort consists of doing any of
the follOWing without lawful justification: (1) entering
upon land in the possession ofanother, (2) remaining
on the land, or (3) placing or projecting any object
upon it. 2. At common law, an action to recover
damages resulting from another's unlawful entry on
one's land that is Visibly enclosed. -Abbr. trespass
q.c.f. -Also termed trespass to real property; trespass
to land; quare clausum querentis fregit. See trespass vi
et armis. [Cases: Trespass ~10, 16, 17.]
"Every unwarrantable entry on another's soil the law
entitles a trespass by breaking his close; the words of the
writ of trespass commanding the defendant to shew cause,
quare clausum querentis fregit. For every man's land is in
the eye of the law enclosed and set apart from his neigh
bour's: and that either by a visible and material fence, as
one field is divided from another by a hedge; or, by an ideal
invisible boundary, existing only in the contemplation of trespasser
law, as when one man's land adjoins to another's in the
same field. And every such entry or breach of a man's close
carries necessarily along with it some damage or other;
for, if no other special loss can be assigned, yet still the
words of the writ itself specify one general damage, viz.
the treading down and bruising his herbage." 3 William
Blackstone, Commentaries on the Laws of England 209-1 0
(1768).
trespass to chattels. (1843) The act of committing,
without lawful justification, any act ofdirect physical
interference with a chattel possessed by another .
The act must amount to a direct forcible injury.
Also termed trespass to goods; constructive trespass.
[Cases: Trespass ~5.J
"Trespass to goods is a wrongful interference with the pos
seSSion of them. It may take innumerable forms, such as
scratching the panel of a coach, removing a tire from a car,
injuring or destroying goods, or in the case of animals,
beating or killing them, or infecting them with disease.
All that is necessary is that the harm done should be
direct ...." P.H. Winfield, A Textbook of the Law of Tort
99, at 345 (5th ed. 1950).
trespass to goods. See trespass to chattels.
trespass to land. See trespass quare clausum fregit (2).
trespass to personal property. See trespass de bonis
asportatiS.
trespass to real property. See trespass quare clausum
fregit (2).
trespass to try title. (1826) 1. In some states, an action
for the recovery of property unlawfully withheld from
an owner who has the immediate right to possession.
2. A procedure under which a claim to title may be
adjudicated.
trespass vi et armis (VI et ahr-mis). [Latin "with force
and arms"] (l7c) 1. At common law, an action for
damages resulting from an intentional injury to
person or property, esp. ifby violent means; trespass
to the plaintiff's person, as in illegal assault, battery,
wounding, or imprisonment, when not under color
oflegal process, or when the battery, wounding, or
imprisonment was in the first instance lawful, but
unnecessary violence was used or the imprisonment
continued after the process had ceased to be lawful.
lhis action also lay for injury to relative rights,
such as menacing tenants or servants, beating and
wounding a spouse, criminal conversation with or
sedUcing a wife, or debauching a daughter or servant.
2. See trespass quare clausum fregit. -In this sense,
the "force" is implied by the "breaking" of the dose
(that is, an enclosed area), even ifno real force is used.
[Cases: Trespass ~17.]
trespass d.h.a. See trespass de bonis asportatis under
TRESPASS.
trespasser. (14c) One who commits a trespass; one who
intentionally and without consent or privilege enters
another's property. _ In tort law, a landholder owes
no duty to unforeseeable trespassers. Cf. INVITEE;
LICENSEE (2). [Cases: Trespass (;:::->9.J
"The word 'trespasser' has an ugly sound, but it covers
the wicked and the innocent. The burglar and the
arrogant squatter are trespassers, but so are all sorts of
1644 trespass for mesne profits
comparatively innocent and respectable persons such as
a walker in the countryside who unhindered strolls across
an open field. Perhaps much of the trouble in this area has
arisen from 'the simplistic stereotype' of the definition.
The courts are therefore beginning to recognise that the
duty of the occupier may vary according to the nature of
the trespasser." R.FV. Heuston, Salmond on the Law ofTorts
278 (17th ed. 1977).
innocent trespasser. (1888) One who enters another's
land unlawfully, but either inadvertently or believing
in a right to do so. [Cases: Trespass C=>2, 23.J
trespass for mesne profits. Hist. An action -supple
menting an action for ejectment brought against a
tenant in possession to recover the profits wrongfully
received during the tenant's occupation. [Cases: Eject
ment (;::>128.]
trespass q.c.f. See trespass quare clausum fregit under
TRESPASS.
tret (tret), n. An allowance or abatement of a certain
weight or quantity that a seller makes to a buyer because
of water or dust that may be mixed with a commodity.
Cf. TARE.
triable, adj. (15c) Subject or liable to judicial examina
tion and trial <a triable offense>.
triable either way. English law. (Of an offense) prose
cutable either in the Crown Court or in a magistrates'
court.
"The criminal courts in England and Wales are the magis
trates' courts and the Crown Court. Those offences con
sidered least serious are summary offences, triable only
in the magistrates' courts. Those offences considered
most serious are triable only on indictment, in the Crown
Court. A large number of offences, such as theft and most
burglaries, are 'triable either way,' in a magistrates' court
or the Crown Court. For these offences the defendant can
elect to be tried at the Crown Court, where there is ajudge
and jury. If the defendant does not wish a Crown Court
trial, the magistrates may decide (having heard representa
tions from the prosecutor) that the case is so serious that it
should be committed to the Crown Court for trial." Andrew
Ashworth, Principles ofCriminal Law 16 (1991).
trial. (15c) A formal judicial examination of evidence
and determination oflegal claims in an adversary pro
ceeding. [Cases: Federal Civil Procedure (;::>1951; Trial
(;::18.J
abortive trial. See MISTRIAL.
bench trial. (1954) A trial before a judge without a
jury. The judge decides questions of fact as well as
questions oflaw. -Also termed trial to the bench;
nonjury trial; court trial; trial before the court (abbr.
TBC); judge trial. [Cases: Criminal Law
260.13; Federal Civil Procedure (;::>2251; Trial
367-387.]
bifurcated trial. (1945) A trial that is divided into two
. such as for guilt and punishment or for liabil
ity and damages. -Also termed two-stage trial. Cf.
SEVERANCE (2). [Cases: Federal Civil Procedure
1954; Sentencing and Punishment C-~334; Trial
3.]
closed trial. A trial that is not open to the public, usu.
because of some overriding concern such as a need to protect a child's anonymity or for security. [Cases:
Criminal Law (;::>635; Federal Civil Procedure (;::>
1951; Trial (;::>20.]
court trial. See bench trial.
fair trial. See FAIR TRIAL.
joint trial. (18c) A trial involving two or more parties;
esp., a criminal trial of two or more persons for the
same or similar offenses. [Cases: Criminal Law
622.]
judge trial. See bench trial.
jury trial. (l8c) A trial in which the factual issues are
determined by a jury, not by the judge. -Also termed
trial by jury.
mock trial. See MOCK TRIAL.
new trial. (16c) A postjudgment retrial or reexami
nation of some or all of the issues determined in an
earlier judgment. The trial court may order a new
trial by motion ofa party or on the court's own initia
tive. Also, when an appellate court reverses the trial
court's judgment, it may remand the case to the trial
court for a new trial on some or all of the issues on
which the reversal is based. See Fed. R. Civ. P. 59; Fed.
R. Crim. P. 33. See MOTION FOR NEW TRIAL; REMAND.
[Cases: Criminal Law (;::>905-96Si Federal Civil Pro
cedure (;:J2311; New Trial (;::>0.5.}
nonbinding minUrial. See summary jury trial.
nonbinding summary jury trial. See summary jury
trial.
nonjury trial. See bench trial.
perfect trial. A trial free from all error.
political trial. (I8c) A trial (esp. a criminal prosecution)
in which either the prosecution or the defendant (or
both) uses the proceedings as a platform to espouse
a particular political belief; a trial of a person for a
political crime. See SHOW TRIAL.
public trial. A trial that anyone may attend or observe.
[Cases: Criminal Law (;:::,635; Federal Civil Proce
dure 1951; Trial
separate trial. (I8c) 1. Criminal procedure. The indi
vidual trial ofeach ofseveral persons jointly accused
ofa crime. Fed. R. Crim. P. 14. [Cases: Criminal Law
(;::>622) 2. Civil procedure. Within a single action,
a distinct trial of a separate claim or issue or of a
group ofclaims or issues ordered by the trial judge,
usu. to conserve resources or avoid prejudice. Fed. R.
Civ. P. 42(b). Cf. SEVERANCE (2). [Cases; Federal Civil
Procedure (;::> 1953 -1965; Trial (;::>3.]
short-cause trial. See short cause under CAUSE (3).
show trial. See SHOW TRIAL.
speedy trial. See SPEEDY TRIAL.
state trial. A trial for a political offense.
summary jury trial. (1984) A settlement technique in
which the parties argue before a mock jury, which
then reaches a nonbinding verdict that will assist the
parties in evaluating their positions. -Also termed
1645 tribal-exhaustion doctrine
nonbinding summary jury trial; nonbinding minitrial.
Cf. MOCK TRIAL. [Cases: Federal Civil Procedure
2252.]
trial at bar. Hist. A trial before all the judges of the
court in which the proceedings take place. Also
termed trial at the bar.
trial at nisi prius (nI-SI prJ-d8). Hist. A trial before the
justices of assize and nisi prius in the county where
the facts are alleged to have occurred, and from which
county the jurors have been summoned.
trial before the court. See bench trial.
trial by battle. See TRIAL BY COMBAT.
trial by |
trial before the court. See bench trial.
trial by battle. See TRIAL BY COMBAT.
trial by certificate. His!. A trial in which the issue is
decided on evidence in the form of witnesses' certifi
cates of what they individually know.
trial by combat. See TRIAL BY COMBAT.
trial by duel. See TRIAL BY COMBAT.
trial by inspection. Hist. A trial in which the judge
decided the dispute by individual observation and
investigation, without the benefit of a jury.
trial byjury. See jury trial.
trial by ordeal. See ORDEAL.
trial by record. Hist. A trial in which, a record having
been pleaded by one party and denied by the other,
the record is inspected in order to decide the dispute,
no other evidence being admissible. See NUL TIEL
RECORD.
trial by the country. See trial per pais.
trial by the record. A trial in which one party insists that
a record exists to support its claim and the opposing
party denies the existence of such a record . Ifthe
record can be produced, the court will consider it in
reaching a verdict otherwise, it will rule for the
opponent.
trial de novo (dee or di noh-voh). (I8c) A new trial on
the entire case that is, on both questions offact and
issues oflaw conducted as ifthere had been no trial
in the first instance. [Cases: Appeal and Error (~~'892;
Criminal Law~')260; Federal Courts C:=>776.]
trial in absentia. A trial held without the accused being
present . In the United States, a trial may be held in
absentia only ifthe accused has either voluntarily left
after the trial has started else has so disrupted the pro
ceedings that the judge orders the accused's removal
as a last resort. [Cases: Criminal Law C:=>636.]
trial on the merits. (I8c) A trial on the substantive
issues of a case, as opposed to a motion hearing or
interlocutory matter.
trial per pais (pdr payor pays). [Law French trial by
the country"] (17c) Trial by jury. -Also termed trial
by the country. Cf. CONCLUSION TO THE COUNTRY;
GOING TO THE COUNTRY; PATRIA (3).
trial to the bench. See bench trial.
trifurcated trial. (1959) A trial that is divided into
three stages, such as for liability, general damages, and special damages. [Cases: Federal Civil Procedure
C:=> 1961; Trial C:=>3(5.1).)
two-stage trial. See bifurcated trial.
trial brief. See BRIEF.
trial by combat. Hist. A trial that is decided by personal
battle between the disputants, common in Europe
and England during the Middle Ages; specif., a trial in
which the person accused fought with the accuser, the
idea being that God would give victory to the person in
the right . This method was introduced into England
by the Normans after 1066, but it was a widely detested
innovation and was little used. It became obsolete
several centuries before being formally abolished in
1818, having been replaced in practice by the grand
assize and indictment. Also termed trial by battle;
trial by wager ofbattle; trial by duel; judicial combat;
duel; duellum; wager ofbattle; ornest; vadiatio duelli;
wehading. See JUDICIUM DEL
trial by corsnaed. See ordeal of the morsel under
ORDEAL.
trial by duel. See TRIAl. BY COMBAT.
trial by oath. See COM PURGATION.
trial by ordeal. See ORDEAL.
trial by wager ofbattle. See TRIAL BY COMBAT.
trial calendar. See DOCKET (2).
trial counsel. See COUNSEL.
trial court. See COURT.
trial de novo. See TRIAL.
trial examiner. See ADMINISTRATIVE-LAW JUDGE.
trial franchise. See FRANCHISE (4).
trial judge. See JUDGE.
trial jury. See petit jury under JURY.
trial ofright ofproperty. 1. INTERVENTION (1). 2. INTER
VENTION (2).
trial per pais. See TRIAL.
trial-setting preference. See speCial setting under
SETTING.
trial-type hearing. See ADMINISTRATIVE PROCEEDING.
triangular merger. See MERGER.
Tribal Court. Under the Indian Child Welfare Act, a
court with child-custody jurisdiction that is (1) a Court
ofIndian Offenses, (2) a court established and operated
under an Indian tribe's code or custom, or (3) any other
tribal administrative body that is vested with authority
over child-custody proceedings . The Tribal Court is
composed of tribal members, is usu. situated on the
reservation, and varies in its characteristics from tribe
to tribe. It is not part of any state's judicial system,
instead operating more or less as a judicial system ofa
foreign nation. See INDIAN CHILD WELFARE ACT. [Cases:
Indians C:=> 134(3).]
tribal-exhaustion doctrine. 1he general principle that
when an Indian tribal court, original or appellate, has
personal and subject-matter jurisdiction, the parties
tribal land 1646
must pursue all remedies available under tribal law
before turning to nontribal courts. - A federal court
may review a challenge to jurisdiction only after the
tribal court has established it has jurisdiction and deter
mined the case on the merits. See National Farmer's
Union Ins. Co. v. Crow Tribe, 471 U.S. 845,856-57, 105
S.Ct. 2447, 2454 (1985).
tribal land. A part of an Indian reservation that is not
allotted to or occupied by individual Indians but is held
as the tribe's common land. Cf. INDIAN I~AND. [Cases:
Indians
tribunal (trI-byoo-n~l). (15c) 1. A court or other adjudi
catory body. 2. The seat, bench, or place where a judge
sits.
tributary (trib-ya-ter-ee), n. (14c) A stream flowing
directly or indirectly into a river.
tribute (trib-yoot), n. (14c) 1. An acknowledgment of
gratitude or respect. 2. A contribution that a sover
eign raises from its subjects to defray the expenses of
state. 3. Money paid by an inferior sovereign or state
to a superior one to secure the latter's friendship and
protection.
tributum (tri-byoo-t~m), n. [Latin] Roman law. Origi
nally, a war tax; later, a regular tax on land or persons
in the Roman provinces.
tri-chad. See CHAD.
trier offad. See FACT-FINDER.
trifurcated trial. See TRIAL.
trigamy (trig-;)-mee), n. (17c) The act of marrying a
person while legally married to someone else and biga
mously married to yet another. [Cases: Bigamy C=>1.J
"Trigamy, literally three marriages, is often used for a
special situation. 'Trigamy,' in the sense of the special
problem of the third wife, stems from the premise that
invalidity of the alleged prior marriage is a good defense
to a charge of bigamy. Thus in a bigamy prosecution a so
called common-law marriage can be relied upon to estab
lish either the first or second marriage, if it is recognized
in the jurisdiction as giving rise to the marital status, but
cannot be relied upon where it is not so recognized. A
logical result is that a charge of bigamy may be defeated
by showing that the alleged prior marriage, relied upon
to support the charge, was itself void because of an even
earlier marriage existing at the time-as was held about
1648 in Lady Madison's Case, For example, 0 marries A,
and afterward while A is alive marries B, and still later
when A is dead but B alive, marries C. The marriage to C
is not bigamy because the marriage to B was bigamous
and void." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law458 (3d ed. 1982).
triggering condition. See CONDITION (2).
Trinity House.lvfaritime law. A British corporation char
tered in 1514 to train and license pilots and officially
regulate pilotage. -Trinity House has also erected and
maintained aids to navigation, such as lighthouses and
buoys, on the coasts of Great Britain.
Trinity sittings. English law. A term of court begin
ning on May 22 ofeach year and ending on June 12. _
This was known until 1875 as Trinity term. Cf. EASTER
SITTINGS; HILARY SITTINGS; MICHAELMAS SITTINGS. tripartite (tn-pahr-tIt), adj. (15c) InvolVing, composed
of, or divided into three parts or elements <a tripartite
agreement>.
tripartite lease. See finance lease under LEASE.
tripartite test. Patents. A judicial test for determining
patent infringement by looking at whether a challenged
device or process, though outside the literal scope of the
patent claims, performs the function in substantially
the same way. See SGBSTANTIAL EQUIVALENT.
triple damages. See treble damages under DAMAGES.
triple net lease. See net-net-net lease under LEASE.
triple ordeal. See ORDEAL.
triple trigger. Insurance. (1981) A theory ofcoverage pro
viding that all insurers on a risk must cover a loss from
the day a claimant is first exposed to an injury-produc
ing product (such as asbestos) to the date of diagnosis
or death, whichever occurs first. _ This term was first
used in Keene Corp. v. Insurance Co. ofN. Am., 667 F.2d
1034 (D.C. Cir. 1981), cert denied, 445 U.S. 1007, 102
S.Ct. 1644 (1982). -Also termed continuous trigger. Cf.
ACTUAL-INJURY TRIGGER; EXPOSURE THEORY; MANI
FESTATION THEORY. [Cases: InsuranceC=>2265.]
triplicatio (trip-Ii-kay-shee-oh), n. [Latin] Roman law. A
defendant's response to a plaintiffs replicatio. PI. trip
licationes (trip-li-kay-shee-oh-neez). See REPLlCATIO.
Cf. QUADRUPLICATIO.
TRIPs. abbr. Intellectual property. The Agreement on
Trade-Related Aspects ofIntellectual Property Rights,
a treaty that harmonized and strengthened the intel
lectual-property laws of its signatories by linking the
obligation to protect the intellectual-property rights of
other members' citizens with a mechanism for settling
international trade disputes. _ TRIPs was negotiated at
the 1994 Uruguay Round ofthe General Agreement on
Tariffs and Trade (GATT). More than 150 nations are
parties to the agreement. In the field of patents, TRIPs
standardized patentable subject matter to include med
icines, required testing for nonobviousness and utility,
and protected patentees from infringing imports. In
response to the agreement Congress (1) changed patent
terms to 20 years from the date ofapplication, rather
than 17 years from the date ofissue; (2) allowed foreign
filers to prove priority by inventive efforts that preceded
filing; (3) widened the definition of infringement to
cover offering for sale and importing; and (4) permit
ted provisional applications, with brief descriptions
and no claims, to establish priority. 33 I.L.M. 1197. In
the field ofcopyrights, TRIPs incorporates most ofthe
provisions of the Berne Convention for the Protection
of Literary or Artistic Works, and sets the length of
copyright protection as the life of the author plus 50
years. In the field oftrademarks, TRIPs sets the initial
term ofa trademark registration as not less than seven
years, and makes it renewable indefinitely. Nations
subject to TRIPs may make registrability dependent
on use but may not require use as a condition for filing
an application. Also written TRIPS. -Also termed
TRIPs Agreement.
1647 trust
"Articles 1~8 of TRIPs include the basic principles of
national treatment and most-favoured-nation treatment.
That is, each Member must give to the nationals of other
Members treatment no less favourable than that given to
its own nationals, and must give to the nationals of all
Members the same privileges as are given to the nation
als of any Member. Thus, subject to certain exemptions,
bilateral agreements between Members should no longer
be permitted," Philip W, Grubb, Patents for Chemicals, Phar
maceuticals and Biotechnology 31 (3d ed. 1999),
tristis successio (tris-tis sdk-ses[h]-ee-oh). See hereditas
luctuosa under HEREDITAS.
triverbial days (tn-var-bee-dl). See dies fasti under
DIES.
trivial, adj. (I6c) Trifling; inconsiderable; ofsmall worth
or importance.
TRO (tee-ahr-oh). abbr. TEMPORARY RESTRAINING
ORDER.
troubled asset. See ASSET.
trover (troh-vdr). (16c) A common-law action for the
recovery of damages for the conversion of personal
property, the damages generally being measured by the
property's value. -Also termed trover and conversion.
Cf. DETINUE; REPLEVIN. [Cases: Trover and Conversion
43.]
"Trover may be maintained for all kinds of personal
property, including legal documents, but not where articles
are severed from land by an adverse possessor, at least
until recovery of |
property, including legal documents, but not where articles
are severed from land by an adverse possessor, at least
until recovery of possession of the land. It lies for the mis
appropriation of specific money, but not for breach of an
obligation to pay where there is no duty to return specific
money." Benjamin J Shipman, Handbook ofCommon-Law
Pleading 43, at 99 (Henry Winthrop Ballantine ed., 3d
ed. 1923).
truancy (troo-dn-see), n. (iSc) The act or state ofshirking
responsibility; esp., willful and unjustified failure to
attend school by one who is required to attend. [Cases:
Schools C=> 161.] -truant, adj. & n.
truancy officer. An official responsible for enforcing laws
mandating school attendance for minors of specified
ages (usu. 16 and under). -Also termed truant officer;
attendance officer. [Cases: Schools C=> 161.]
truant, n. A person who without permission is absent
from work or school or who shirks a duty. [Cases:
Schools ~J161.]
truce. Int'llaw. A suspension or temporary cessation of
hostilities by agreement between belligerent powers.
Also termed armistice; ceasefire; suspension ofarms.
Cf. peace treaty under TREATY (1). [Cases: War and
National EmergencyC=>33.1- trucial, adj.
general truce. A truce suspending hostilities in all
places.
special truce. A truce referring only to operations
before a specific fortress or in a district, or between
certain detachments ofarmies. Also termed partial
truce.
truck. Hist. Scots law, The payment ofwages in scrip or
goods. Truck systems, once common where workers
had to live in isolated areas and depended on company stores for food and clothing, were abolished in the 19th
century.
"Truck was payment not in money but in goods or tickets
which could be exchanged for goods, .. , The principle that
contractors could buy in bulk and retail to the workmen,
deducting the cost from their wages, was sound but was
open to abuse; in fact truck became a means of robbery.
Railway contractors frequently made more profit from
truck than from the contract, .. , Truck shops, frequently
called tommy shops or tally shops, might be run by the
contractor or let by him to an associate or a shopkeeper for
a rent or on the basis that part of the shop profits would go
back to the contractor. The goods were frequently inferior
and sold at excessive prices. David M, Walker, 6 A Legal
History ofScotland 820 (2001),
true admission. See judicial admission under ADMIs
SION (1).
true and correct. Authentic; accurate; unaltered <we
have forwarded a true and correct copy ofthe expert's
report>. Also termed true and exact.
true bill, n. (lSc) A grand jury's notation that a criminal
charge should go before a petty jury for trial <the grand
jury returned a true bill, and the state prepared to pros
ecute>. -Also termed billa vera, Cf. NO BILL. [Cases:
Grand JuryC=>42.]
true-bill, vb. To make or deliver a true bill on <the grand
jury true-billed the indictment>,
true copy. See COPY.
true defense. See DEFENSE (1).
true legal impossibility. See legal impossibility (1) under
IMPOSSIBILITY.
true mark. See technical trademark under TRADE
MARK.
true residue. See CLEAR RESIDUE.
true trademark. See technical trademark under TRADE
MARK.
true value. See fair market value under VALUE (2).
true-value rule. The rule requiring that one who sub
scribes for and receives corporate stock must pay par
value for it, in either money or its equivalent, so that
a corporation's real assets square with its books . If
true value is less than par value, the stock is deemed
unpaid for to the full extent ofthe difference, and the
affected shareholder is liable to creditors for the differ
ence, notwithstanding the directors' good faith. [Cases:
Corporations C=>232.]
true verdict. See VERDICT.
trust, n. (ISc) 1. The right, enforceable solely in equity, to
the beneficial enjoyment ofproperty to which another
person holds the legal title; a property interest held by
one person (the trustee) at the request of another (the
settlor) for the benefit ofa third party (the beneficiary).
For a trust to be valid, it must involve specific property,
reflect the settlor's intent, and be created for a lawful
purpose. The two primary types of trusts are private
trusts and charitable trusts (see below). [Cases: Trusts
C=> 1.] 2. A fiduciary relationship regarding property
and charging the person with title to the property with
trust 1646
equitable duties to deal with it for another's benefit;
the confidence placed in a trustee, together with the
trustee's obligations toward the property and the ben
eficiary. A trust arises as a result of a manifestation
of an intention to create it. See fiduciary relationship
under RELATIONSHIP. 3. Ihe property so held; CORPUS
(1).
"One must distinguish, ... [in] countries where English is
spoken, between a wide and a narrow sense of the word
'trust.' In the wide sense a trust exists when property is to
be held or administered by one person on behalf of another
or for some purpose other than his own benefit.... In
the narrow or strict sense a trust exists when the creator
of the trust ... hands over or is bound to hand over the
control of an asset which, or the proceeds of which, is
to be administered by another (the trustee or administra
tor) in his capacity as such for the benefit of some person
(beneficiary) other than the trustee or for some impersonal
object. A trust in this sense is a species of the genus 'trust'
in the wide sense." Tony Honore, The South African Law of
Trusts 1-2, at 1-3 (3d ed, 1985).
"Some courts and legal writers have defined a trust as a
certain kind of right that the beneficiary has against the
trustee, or a certain kind of interest that the beneficiary
has against the trustee, or a certain kind of interest that
the beneficiary has in the trust property, thus looking at
it from the point of view of the beneficiary, While it is true
that the beneficiary has the right or interest described,
the trust is something more than the right or interest of
the beneficiary. The trust is the whole juridical device: the
legal relationship between the parties with respect to the
property that is its subject matter, including not merely the
duties that the trustee owes to the beneficiary and to the
rest of the world, but also the rights, privileges, powers,
and immunities that the beneficiary has against the trustee
and against the rest of the world. It would seem proper,
therefore, to define the trust either as a relationship having
certain characteristics stated in the definition or perhaps
as a juridical device or legal institution involving such a
relationship," 1 Austin W, Scott & William F. Fratcher, The
Law of Trusts 2.4, at 42 (4th ed. 1987).
"In the strict, traditional a trust involves three
elements: (1) a trustee, who the trust property and
is subject to deal with it for the benefit of one or more
others; (2) one or more benefiCiaries, to whom and for
whose benefit the trustee owes duties with respect to the
trust property; and (3) trust property, which is held by
the trustee for the beneficiaries. In a more comprehensive
sense, the trust purpose is often included in discussions
of the elements of the trusts .... Although all of these
elements are present in a complete trust, either or both
of elements (1) and (2) above may be temporarily absent
without destroying the trust or preventing its creation,"
Restatement (Third) of Trusts 2 cmt. f (2003).
A-B-Q trust. See bypass trust.
A-B trust. See bypass trust.
accumulation trust. A trust in which the trustee must
accumulate income and gains from sales of trust
assets for ultimate disposition with the principal
when the trust terminates, Many states restrict the
time over which accumulations may be made or the
amount that may be accumulated. [Cases: Trusts (;::::'
280.]
active trust. A trust in which the trustee has some
affirmative duty of management or administration
besides the obligation to transfer the property to
the beneficiary. Also termed express active trust; special trust; operative trust, Cf. passive trust. [Cases:
Trusts C=::> 135,)
Alaska trust. See asset-protection trust (1).
alimony trust. A trust in which the payor spouse
transfers to the trustee property from which the
payee spouse, as beneficiary, will be supported after
a divorce or separation.
annuity trust. A trust from which the trustee must pay
a sum certain annually to one or more beneficiaries
for their respective lives or for a term of years, and
must then either transfer the remainder to or for the
use ofa qualified charity or retain the remainder for
such a use . The sum certain must not be less than 5%
ofthe initial fair market value of the property trans
ferred to the trust by the donor. A qualified annuity
trust must comply with the requirements of IRC (26
USCA) 664. [Cases: Trusts C=::>281.j
asset-protection trust. 1. A trust designed specifically
to insulate assets from the settlor's creditors . When
the trust is created using the law of a state, it is also
termed a domestic asset-protection trust, It may also
be referred to by the name of the specific state, e.g.,
Alaska trust, Delaware trust, or Nevada trust. If it is
created under foreign law, even though the assets are
within the United States, it is also termed an offshore
asset-protection trust. 2. See self-settled trust.
bank-account trust. See Totten trust.
blended trust. A trust in which the beneficiaries are a
group, with no member of the group having a sepa
rable individual interest. Courts rarely recognize
these trusts.
blind trust. (1969) A trust in which the settlor places
investments under the control of an independent
trustee, usu. to avoid a conflict ofinterest. The ben
eficiary has no knowledge ofthe trust's holdings and
no right to participate in the trust's management.
bond trust. A trust whose principal consists of bonds
that yield interest income.
bypass trust. (1981) A trust into which just enough of
a decedent's estate passes, so that the estate can take
advantage of the unified credit against federal estate
taxes. See 26 USCA 2010. Also termed credit
shelter trust;A-B trust; A-B-Q trust; marital life-estate
trust. See unified estate-and-gift tax credit under TAX
CREDIT.
charitable lead trust. An irrevocable trust made in
favor of a charity and allowing the charity to receive
income from the trust property for a specified
period, after which the property reverts to the set
tlor's estate,
charitable-remainder annuity trust. A charitable
remainder trust in which the beneficiaries receive
for a specified period a fixed payment of 5% or more
of the fair market value of the original principal, after
which the remaining principal passes to charity. -
Abbr. CRAT. Also termed charitable-remainder
1649 trust
trust retirement fund. (Cases: Charities Trusts
charitable-remainder trust. A trust consisting ofassets
that are designated for a charitable purpose and paid
over to the trust after the expiration ofa life estate or
intermediate estate. -Abbr. CRT. Also termed
split-interest trust. [Cases: Charities
charitable-remainder-trust retirement fund. See char
itable-remainder annuity trust.
charitable trust. (1Sc) A trust created to benefit a
specific charity, specific charities, or the general
public rather than a private individual or entity.
Charitable trusts are often eligible for favorable tax
treatment. Ifthe trust's terms do not specify a charity
or a particular charitable purpose. a court may select a
charity. See Uniform Trust Act 405. -Also termed
public trust; charitable use. See charitable deduction
under DEDUCTION; CY PRES. Cf. private trust. [Cases:
Charities Internal Revenue ('='4048; Taxation
C='2337, 3328, 3488.]
Claflin trust. See indestructible trust.
Clifford trust. (1941) An irrevocable trust, set up for
at least ten years and a day, whereby income from
the trust property is paid to the beneficiary but the
property itself reverts back to the settlor when the
trust expires. -These trusts were often used by
parents -with their children as beneficiaries -to
shelter investment income, but the Tax Reform Act
of 1986 eliminated the tax advantage by imposing
the kiddie tax and by taxing the income of settlors
with a reversionary interest that exceeds 5% of the
trust's value. This term gets its name from Helvering
v. Clifford, 309 U.S. 331, 60 S.Ct. 554 (1940). -Also
termed short-term trust. [Cases: Internal Revenue
3362.]
common-law trust. See business trust under TRUST (4).
. community trust. See COMMUNITY TRUST.
complete voluntary trllst. See executed trust.
complex trust. L A trust having elaborate provisions.
2. See discretionary trust.
constructive trust. (l8c) An equitable remedy that a
court imposes against one who has obtained property
by wrongdoing. - A constructive trust, imposed to
prevent unjust enrichment, creates no fiduciary rela
tionship. Despite its name, it is not a trust at all.
Also termed implied trust; involuntary trust; trust de
son tort; trust ex delicto; trust ex maleficio; remedial
trust; trust in invitum. See trustee de son tort under
TRUSTEE. Cf. resulting trust. [Cases |
trust; trust in invitum. See trustee de son tort under
TRUSTEE. Cf. resulting trust. [Cases: Trusts
91-111.]
"A constructive trust is the formula through which the
conscience of equity finds expression. When property has
been acquired in such circumstances that the holder of the
legal title may not in good conscience retain the benefi
cial interest, equity converts him into a trustee." Beattv v.
Guggenheim Exploration Co., 122 N.E. 378, 380 (N.Y. 1919)
(Cardozo, J.l.
"It is sometimes said that when there are sufficient grounds
for imposing a constructive trust, the court 'constructs a trust' The expression is, of course, absurd. The word 'con
structive' is derived from the verb 'construe,' not from the
verb 'construct.' ... The court construes the circumstances
in the sense that it explains or interprets them; it does not
construct them." 5 Austin W. Scott & William F. Fratcher,
The Law ofTrusts 462.4 (4th ed. 1987).
contingent trust. An express trust depending for its
operation on a future event.
credit-shelter trust. See bypass trust.
Crummey trust. A trust in which the trustee has the
power to distribute or accumulate income and to give
the beneficiary the right to withdraw an amount equal
to the annual gift exclusion (or a smaller sum) within
a reasonable time after the transfer. -This type of
trust can have multiple beneficiaries and is often
used when the beneficiaries are minors. Gifts to a
Crummey trust qualify for the annual gift exclusion
regardless of the age of the beneficiaries. The trust
assets are not required to be distributed to the ben
eficiaries at age 21. The validity of this type of trust
was established in Crummey v. Commissioner, 397
F.2d 82 (9th Cir. 1968). -Also termed discretionary
trust See CRl:MMEY POWER; annual exclusion under
EXCLUSION. Cf. 2503(c) trust.
custodial trust. A revocable trust for which a custodial
trustee is named to manage the assets for an incapaci
tated or disabled beneficiary. -The beneficiary does
not have to be disabled or incapacitated at the time
the trust is created. An adult beneficiary who is not
disabled or incapacitated may terminate the trust at
any time before his or her disability, incapacity, or
death.
declared trust. See express trust.
defective trust. A trust that is treated, for income-tax
purposes, as if it were the same entity as the grantor,
but for estate-tax purposes is treated as an entity
separate from the grantor. -Typically a trust is an
independent entity that is taxed separately from the
settlor. Because trust income is taxed at higher rates
than individual income, the settlor may intentionally
create a defect in the trust terms so that the trust's
income will be taxable to the grantor. This is achieved
by violating the grantor-trust rules ofIRC 671-677
in a way that does not affect the completeness of the
gift under IRC 2035-2042. A violation renders the
trust "defective" because the settlor must recognize
the income even if the settlor does not actually receive
it. The attribution oftax liability and payment oftaxes
on trust income do not give the grantor an ownership
in the trust, which remains separate from the set
tlor's estate and is not subject to estate taxes. [Cases:
Internal Revenue <:r'-='4023.]
Delaware trust. See asset-protection trust.
destructible trust. (1953) A trust that can be destroyed
by the happening of an event or by operation oflaw.
directory trust. 1. A trust that is not completely and
finally settled by the instrument creating it, but only
defined in its general purpose and to be carried into
detail according to later specific directions. 2. See
fixed trust.
direct trust. See express trust.
discretionary trust. (1837) l. A trust in which the settlor
has delegated nearly complete or limited discretion
to the trustee to decide when and how much income
or property is distributed to a beneficiary. -This is
perhaps the most common type oftrust used in estate
planning. [Cases: Trusts ~ISO, l77.]2. See Crummey
trust. Cf. mandatory trust; CRUMMEY POWER.
domestic asset-protection trust. See asset-protection
trust (1).
donative trust. A trust that establishes a gift ofa ben
eficial interest in property for a beneficiary . Most
trusts are donative trusts. Also termed gratuitous
trust. [Cases: Trusts ~35(1).J
donor-advised trust. A trust set up by a public charity
using cash or other assets donated by a person who
will act as a director of the trust. IRC (26 USCA)
4966(d)(2). -Also termed donor-advised fund.
dry trust. 1. A trust that merely vests legal title in
a trustee and does not require that trustee to do
anything. 2. See passive trust.
dynasty trust. A generation-skipping trust funded with
the amount that is permanently exempt from gen
eration-skipping tax and designed to last more than
two generations. -In 2000, a settlor could contribute
$1 million to a dynasty trust. Almost half the states
allow dynasty trusts, despite their potential for lasting
more than 100 years. -Also termed GST supertrust.
[Cases: Internal Revenue C-='4224.]
educational trust. 1. A trust to found, endow, or
support a school. 2. A trust to support someone's
education.
electing small-business trust. A trust of which the
beneficiaries are individuals, estates, certain chari
table organizations, or certain governmental entities,
who did not purchase an interest in the trust, and for
which the trustee has elected to be taxed under special
rules. IRC (26 USCA) 1391(e)(1). -Abbr. ESBT.
equipment trust. See EQUIPMENT TRUST.
estate trust. A trust that is established to qualify a
deceased spouse's property for the marital deduction.
The trustee may be given discretion to distribute
principal or income to the donor's spouse ifthe donor
also provides that, at the surviving spouse's death, any
accumulated income and remaining principal must
be distributed to the surviving spouse's estate. See
marital deduction under DEDUCTION.
ex delicto trust (d;}-lik-toh). A trust that is created for
an illegal purpose, esp. to prevent the settlor's creditors
from collecting their claims out ofthe trust property.
executed trust. A trust in which the estates and inter
ests in the subject matter of the trust are completely
limited and defined by the instrument creating the
trust and require no further instruments to complete them. Also termed complete voluntary trust. [Cases:
Trusts ~114.]
executory trust (eg-zek-p-tor-ee). (l8c) A trust in
which the instrument creating the trust is intended to
be provisional only, and further conveyances are con
templated by the trust instrument before the terms of
the trust can be carried out. Also termed imperfect
trust. [Cases: Trusts 114.]
express active trust. See active trust.
express private passive trust. A trust in which land is
conveyed to or held by one person in trust for another,
without any power being expressly or impliedly given
to the trustee to take actual possession ofthe land or
exercise any ownership rights over it, except at the
beneficiary's direction. [Cases: Trusts ~136.]
express trust. (18c) A trust created with the settlor's
express intent, usu. declared in writing; an ordinary
trust as opposed to a resulting trust or a construc
tive trust. Also termed direct trust; declared trust.
[Cases: Trusts (;::c 1-61.5.1
family-pot trust. A trust in which all the assets are kept
in a single fund for the trustee to use for multiple ben
eficiaries (usu. children) . Family-pot trusts are typi
cally testamentary and used to administer a donor's
property until the donor's minor children have com
pleted their education.
family trust. A trust created to benefit persons who are
related to one another by blood, affinity, or law.
fixed trust. A trust in which the trustee may not
exercise any discretion over the trust's management
or distributions. Also termed directory trust; non
discretionary trust.
foreign-situs trust (SI-t;}S). A trust created under
foreign law. -This type oftrust usu. has no significant
income-tax benefits and is subject to greater reporting
requirements than a domestic trust. Because creditors
cannot easily reach the foreign trust's assets, it is fre
quently used as a means ofasset-protection. Also
termedforeign trust; offshore trust.
general trust. See passive trust.
generation-skipping trust. (1976) A trust that is
established to transfer (usu. principal) assets to a
skip person (a beneficiary more than one generation
removed from the settlor). The transfer is often
accomplished by giving some control or benefits (such
as trust income) of the assets to a nonskip person,
often a member ofthe generation between the settlor
and skip person. This type oftrust is subject to a gen
eration-skipping transfer tax. IRC (26 USCA) 2601
et seq. See DEEMED TRANSFEROR; GENERATION-SKIP
PING TRANSFER; generation-skipping transfer tax
under TAX; SKIP PERSON. Cf. dynasty trust. [Cases:
Internal Revenue
governmental trust. 1. A type ofcharitable trust estab
lished to prOVide a community with facilities ordinar
ily supplied by the government, esp. by a municipality,
and to promote purposes that are sufficiently beneficial
1651
to the community to justify permitting the property to
be perpetually devoted to those purposes . Examples
of such facilities include public buildings, bridges,
streets, parks, schools, and hospitals. 2. A type of
charitable trust established for general governmental
or municipal purposes, such as defraying the expenses
of a governmental entity or paying the public debt.
Restatement (Second) ofTrusts 373, 374 (1959).
grantor-retained annuity trust. An irrevocable
trust into which the grantor transfers property in
exchange for the right to receive fixed payments at
least annually, based on original fair market value of
the property transferred . At the end of the speci
fied time, the principal passes to a noncharitable
beneficiary such as the grantor's child or grandchild.
Essentially, the grantor makes to the remainderman
a current gift of the right to trust assets at a specified
date in the future. Abbr. GRAT.
grantor-retained income trust. A trust in which a
gift's value can be reduced by the grantor's retain
ing an income interest, for a specified time, in the
gifted property . At the end ofthe specified time, the
principal passes to a noncharitable beneficiary such
as the grantor's child or grandchild. Essentially, the
grantor makes to the remainderman a current gift
of the right to trust assets at a specified date in the
future. -Sometimes shortened to retained income
trust. Abbr. GRIT.
grantor-retained unitrust. An irrevocable trust into
which the grantor transfers property in exchange for
the right to receive annual payments, the amount of
which fluctuates based on the increase or decrease in
the value ofthe property transferred. -Abbr. GRUT.
Cf. grantor-retained annuity trust.
grantor trust. A trust in which the settlor retains
control over the trust property or its income to
such an extent that the settlor is taxed on the trust's
income . The types of controls that result in such tax
treatment are set out in IRC (26 USCA) 671-677.
An example is the revocable trust.
gratuitous trust. See donative trust.
GST supertrust. See dynasty trust.
honorary trust. (1844) A noncharitable trust that is
of doubtful validity because it lacks a beneficiary
capable of enforcing the trust. Examples include
trusts for the care and support of specific animals,
or for the care ofcertain graves. The modern trend is
to recognize the validity of such trusts, if the trustee
is willing to accept the responsibility. Ifthe trustee
fails to carry out the duties, however, a resulting trust
arises in favor of the settlor's reSiduary legatees or
next ofkin. [Cases: Trusts (;::> LJ
Illinois land trust. See land trust.
illusory trust. (1939) An arrangement that looks like
a trust but, because of powers retained in the settlor,
has no real substance and is not a completed trust.
[Cases: Trusts trust
imperfect trust. See executory trust.
implied trust. 1. See constructive trust. 2. See result
ing trust.
indestructible trust. (1909) A trust that, because of the
settlor's wishes, cannot be prematurely terminated by
the beneficiary. Also termed Claflin trust.
insurance trust. A trust whose principal consists of
insurance policies or their proceeds.
inter vivos trust (in-t<lr vI-vohs or vee-vohs). (1921c) A
trust that is created and takes effect during the set
tlor's lifetime. Also termed living trust. Cf. testa
mentary trust. [Cases: Trusts (;::::> 1,58-61.]
investment trust. See investment company under
COMPANY.
involuntary trust. See constructive trust.
irrevocable trust (i-rev-<l-k<l-b<ll). (1837) A trust that
cannot be terminated by the settlor once it is created .
In most states, a trust will be deemed irrevocable unless
the settlor specifies otherwise. [Cases: Trusts C7C'59.J
land trust. A land-ownership arrangement by which
a trustee holds both legal and equitable title to land
while the beneficiary retains the power to direct the
trustee |
a trustee holds both legal and equitable title to land
while the beneficiary retains the power to direct the
trustee, manage the property, and draw income from
the trust. -Also termed Illinois land trust; naked
land trust. [Cases: Trusts (;::::> 140(1).]
life-insurance trust. A trust consisting of one or more
life-insurance policies payable to the trust when the
insured dies. [Cases: Trusts
limited trust. A trust created for a limited period. Cf.
perpetual trust.
liquidating trust. A trust designed to be liquidated as
soon as possible . An example is a trust into which a
decedent's business is placed to safeguard the business
until it can be sold.
living trust. See inter vivos trust.
mandatory trust. A trust in which the trustee must dis
tribute all the income generated by the trust property
to one or more designated beneficiaries. Also
termed simple trust. Cf. discretionary trust.
marital-deduction trust. (1953) A testamentary trust
created to take full advantage of the marital deduc
tion; esp., a trust entitling a spouse to lifetime income
from the trust and sufficient control over the trust
to include the trust property in the spouse's estate
at death. See marital deduction under DEDUCTION.
[Cases: Internal Revenue (;::::>4169.]
marital life-estate trust. See bypass trust.
Massachusetts trust. See business trust under TRUST (4).
Medicaid-qualifying trust. (1989) A trust deemed to
have been created in an effort to reduce someone's
assets so that the person may qualify for Medicaid,
and that will be included as an asset for purposes of
determining the person's eligibility . A person who
wants to apply and qualify for Medicaid, but who
has too many assets to qualify, will sometimes set
up a trust -or have a spouse or custodian set up a
trust using the applicant's own assets, under which
the applicant may be the beneficiary of all or part of
the payments from the trust, which are distributed
by a trustee with discretion to make trust payments
to the applicant. Such a trust may be presumed to
have been established for the purpose of attempting
to qualify for Medicaid, and may be counted as an
asset ofthe applicant, resulting in a denial ofbenefits
and the imposition of a penalty period during which
the applicant cannot reapply. Nonetheless, Medicaid
rules allow three types of trusts that do not impair
Medicaid eligibility, since the trust assets are not con
sidered the beneficiary's property: Miller trust, pooled
trust, and under-65 trust. [Cases: Health (:=:47l(6).]
Miller trust. An irrevocable trust funded with the
income of an incompetent beneficiary who seeks to
qualify for Medicaid in a state with an income cap.
Funding is strictly limited to the beneficiary's
income (from any source). The assets in the trust are
not included in the beneficiary's estate for Medicaid
purposes if the trust assets will be used to reimburse
the state after the beneficiary's death. Trust distri
butions are kept below the income cap in order to
preserve the beneficiary's Medicaid eligibility. This
type of trust was first judicially sanctioned in lvIiller v.
Ibarra, 746 F.Supp. 19 (D. Colo. 1990). Also termed
Miller's trust; qualified income trust.
ministerial trust. See passive trust.
minor's trust. See 2503(c) trust.
mixed trust. A trust established to benefit both private
individuals and charities.
naked land trust. See land trust.
naked trust. See passive trust.
Nevada trust. See asset-protection trust (1).
nominal trust. See passive trust.
nominee trust. 1. A trust in which the beneficiaries
have the power to direct the trustee's actions regard
ing the trust property. 2. An arrangement for holding
title to real property under which one or more persons
or corporations, under a written declaration oftrust,
declare that they will hold any property that they
acquire as trustees for the benefit of one or more
undisclosed beneficiaries. Also termed (in sense
2) realty trust. [Cases: Trusts
nondiscretionary trust. Seefixed trust.
nongrantor-owner trust. A trust in which the benefi
ciary has an unrestricted power to vest the principal
or interest in him or herself. IRC (26 USCA) 678.
Also termed 678 trust.
offshore asset-protection trust. See asset-protection
trust (l).
offshore trust. Seeforeign-situs trust.
onerous trust. A trust that places exceptionally heavy
and time-consuming duties of responsibility and
care on the trustee, often without providing for compensation . Because ofthe burden and inequity
ofrequiring the trust to be administered voluntarily,
courts often grant a trustee a reasonable sum for the
tasks performed.
oral trust. 1. A trust created by the settlor's spoken
statements as opposed to a written agreement .
Trusts of real property must usu. be in writing
(because of the statute of frauds). Trusts of personal
property may be created orally but require clear and
convincing evidence to show that an oral trust was
created. Uniform Trust Act 8407. -Also termed
parol trust. [Cases: Trusts 2. A trust created
by operation oflaw, such as a trust or a con
structive trust.
parol trust. See oral trust (1).
passive trust. A trust in which the trustee has no duty
other than to transfer the property to the benefi
ciary. Also termed dry trust; general trust; nominal
trust; simple trust; naked trust; ministerial trust; tech
nical trust. See bare trustee under TRUSTEE. Cf. active
trust. [Cases: Trusts (;::::> 136.]
pension trust. An employer-funded pension plan;
esp., a pension plan in which the employer transfers
to trustees amounts sufficient to cover the benefits
payable to the employees. [Cases: Labor and Employ
ment (;::>400.]
perpetual trust. A trust that is to continue as long as
the need for it continues, such as for the lifetime of
a beneficiary or the term of a particular charity. Cf.
limited trust.
personal-residence trust. An irrevocable trust to which
the settlor transfers ownership of his or her personal
residence while retaining the right to live there for a
specified term ofyears. The trust cannot hold any
assets other than the residence and proceeds result
ing from damage to or destruction of the residence.
Cf. qualified personal-residence trust. [Cases: Trusts
(;:--::> 1.]
personal trust. See private trust.
pet trust. An honorary trust that is established for
the care and maintenance of a particular animal or
group of animals . Pet trusts are generally invalid
because animals are incapable of compelling a trustee
to act, and animals have no standing in law. Effec
tively, the trust has no beneficiary. But some states
(e.g., Colorado) statutorily recognize these trusts as
valid. Pet trusts are covered in the Uniform Trust
Code ( 408).
pooled-income fund. See POOLED-INCOME FUND.
pooled trust. An irrevocable, discretionary trust that
(1) is established and managed by a nonprofit asso
ciation, (2) is funded with the assets of disabled
persons, and (3) maintains a separate trust account
for each benefiCiary, but (4) pools the trust assets for
investment purposes . If the trust provides for dis
tribution of a deceased beneficiary's interest to the
state in reimbursement of Medicaid expenditures, a
1653
pooled-trust beneficiary may be eligible for Medicaid
benefits. The assets contributed to the trust for the
individual's benefit are not treated as the beneficiary's
property. -Also termed pooled-assets trust. [Cases:
Trusts 011(l).]
pourover trust. (1981) An inter vivos trust that receives
property (usu. the residual estate) from a will upon
the testator's death. Cf. pourover will under WILL.
power-oj-appointment trust. (1848) A trust in which
property is left in trust for the surviving spouse.
The trustee must distribute income to the spouse for
life, and the power of appointment is given to the
spouse or to his or her estate. A power-of-appoint
ment trust is commonly used to qualify property for
the marital deduction. See marital deduction under
DEDUCTION.
precatory trust (prek-;J-tor-ee). (1878) A trust that
the law will recognize to carry out the wishes of the
testator or grantor even though the statement in
question is in the nature of an entreaty or recom
mendation rather than a command. [Cases: Trusts
c::)29.]
presumptive trust. See resulting trust.
private trust. A trust created for the financial benefit
of one or more designated beneficiaries rather than
for the public benefit; an ordinary trust as opposed to
a charitable trust. -Three elements must be present
for a private trust: (1) the demonstrated intent of the
settlor, (2) trust property (as res), and (3) a certain
beneficiary capable of enforcing the trust. -Also
termed personal trust. Cf. charitable trust. [Cases:
Trusts 01.]
protective trust. A trust that is designed to protect the
trust property to ensure the continued support ofthe
beneficiary. [Cases: Trusts 0152.]
"In a broad sense, a spendthrift, support, or other similarly
protective trust is one created to provide a fund for the
maintenance of the beneficiary and at the same time to
secure it against the beneficiary's improvidence or incapac
ity." 76 Am. Jur. 2d Trusts 121 (1992).
public trust. See charitable trust.
purchase-money resulting trust. A resulting trust that
arises when one person buys property but directs the
seller to transfer the property and its title to another.
-Although a purchase-money resulting trust is
properly understood as a court-imposed equitable
remedy rather than as a true trust, the buyer is occa
Sionally referred to as the "beneficiary" and the title
holder as the "trustee." Abbr. PMRT. [Cases: Trusts
C:>72-83.]
QTIP trust (kyoo-tip). (1985) A trust that is estab
lished to qualify for the marital deduction. _ Under
this trust, the assets are referred to as qualified-ter
minable-interest property, or QTIP. See qualified
terminable-interest property under PROPERTY. Cf.
qualified domestic trust. [Cases: Internal Revenue
C::>4169(4).] trust
qualiJied domestic trust. A trust for a noncitizen
spouse qualifying for the marital deduction. See 26
USCA 2056(d). -Abbr. QDOT. See marital deduc
tion under DEDUCTION. Cf. QTIP trust.
qualified income trust. See Miller trust.
qualified personal-residence trust. An irrevocable
trust that is funded with cash and the personal resi
dence of the grantor, who retains the right to dwell
in the residence for a specified term of years. -The
trust may receive and hold additional cash to pay for
trust expenses, mortgage installments, and improve
ments to the residence. -Abbr. QPRT. Cf. personal
residence trust. [Cases: Trusts 01.]
qualified S-corporation trust. A trust that (1) owns
stock in one or more S corporations, (2) distributes
all income to one individual (who must be a United
States citizen or resident), (3) requires only one ben
eficiary at a time, and (4) requires the income-benefi
ciary-elect to have the trust qualify as a QSST. _ The
trust is rarely termed a qualified subchapter-S corpo
ration trust but the common abbreviation is QSST,
not QSCT.
rabbicular trust. A rabbi trust that protects the trust
assets against the claims of the employer's creditors by
converting to a secular trust ifthe employer funding
the trust becomes insolvent. _ The term is a port
manteau word from rabbi and secular. Cf. rabbi trust;
secular trust.
rabbi trust. Slang. An irrevocable grantor trust whose
assets remain subject to the claims of the grantor's
general creditors, and from which benefits are paid
to the grantor's employees if a stipulated event occurs.
- A rabbi trust is a form of nonqualified deferred
compensation plan. Because the trust can be reached
by creditors, the participants can avoid being taxed
on the constructive receipt of the benefits held in the
trust. Its name derives from the IRS letter ruling that
approved its use by a synagogue. Priv. Ltr. Rul. 81-13
107 (Dec. 31, 1980). Cf. rabbicular trust; secular trust.
[Cases: Labor and Employment (:::::'431.]
real-estate investment trust. See REAL-ESTATE INVEST
MENTTRUST.
real-estate mortgage trust. See REAL-ESTATE MORTGAGE
TRUST.
realty trust. See nominal trust (2).
reciprocal trust. A trust arrangement between two
parties in which one party is beneficiary of a trust
established by the other party, and vice versa. _ Such
trusts are common between husband and wife.
remedial trust. See constructive trust.
resulting trust. (18c) A remedy imposed by equity when
property is transferred under circumstances suggest
ing that the transferor did not intend for the transferee
to have the beneficial interest in the property. Also
termed implied trust; presumptive trust. Cf. construc
tive trust. [Cases: Trusts 062-90.]
retained income trust. See grantor-retained income
trust.
revocable trust (rev-~-b-b~I). A trust in which the
settlor reserves the right to terminate the trust and
recover the trust property and any undistributed
income. [Cases: Trusts C=>59.J
savings-account trust. |
property and any undistributed
income. [Cases: Trusts C=>59.J
savings-account trust. See Totten trust.
savings-bank trust. See Totten trust.
secret trust. An instrument, usu. a will, that appears
to give an absolute gift to another although the donee
has orally agreed with the grantor that he or she is to
use the property for the benefit of some third party.
Courts admit evidence of the promise to prevent
unjust enrichment and enforce it by imposing the
remedy of a constructive trust upon the reneging
"trustee." Cf. semi-secret trust. [Cases: Trusts C=>
35(3).]
secular trust. An irrevocable trust, funded by an
employer, that protects an employee-beneficiary's
deferred compensation from the claims of creditors
during an employer's bankruptcy or insolvency. -The
trust provides the employee-beneficiary with exclu
sive rights. The employee enjoys security since the
trust is funded and the funds are beyond the reach
of creditors and immune from forfeiture, but the
employee cannot defer income recognition. Cf. rab
bicular trust; rabbi trust.
self-settled trust. (1969) A trust in which the settlor
is also the person who is to receive the benefits from
the trust, usu. set up in an attempt to protect the trust
assets from creditors . In most states, such a trust
will not protect trust assets from the settlor's credi
tors. Restatement (Second) of Trusts 156 (1959).
Also termed asset-protection trust.
semi-secret trust. An instrument that indicates who
is to serve as a trustee but fails to identify either the
beneficiary or the terms of the trust, or both. -Tra
ditionally, this trust was deemed to fail for want ofan
ascertainable beneficiary. But the modern view is to
provide the same relief as that given for a secret trust:
to receive evidence of the donor's intent, including
the intended beneficiary, and impose a constructive
trust in his or her favor. Ct~ secret trust. [Cases: Trusts
1,64.]
shifting trust. An express trust providing that, upon a
specified contingency, it may operate in favor of an
additional or substituted beneficiary.
short-term trust. See Clifford trust.
simple trust. 1. See mandatory trust. 2. See passive
trust.
678 trust. See nongrantor-owner trust.
special-needs trust. See supplemental-needs trust.
special trust. See active trust.
spendthrift trust. (1878) 1. A trust that prohibits the
beneficiary's interest from being aSSigned and also
prevents a creditor from attaching that interest; a trust by the terms of which a valid restraint is imposed
on the voluntary or involuntary transfer of the ben
eficiary's interest. [Cases: Trusts 141, 152.] 2.
A similar trust in which the restraint on alienation
results from a statute rather than from the settlor's
words in the trust instrument.
"Origin of the term 'spendthrift trust.' The phrase 'spend
thrift trust' seems to have been first used, as might be
expected, in Pennsylvania. The earliest instance in which
a use of the phrase has been found was in 1875, when it
appeared in the syllabus of a case, though the court did
not use it in its opinion. Four years later, in Overman's
Appeal [88 Pa. 276 (1879)]. the phrase is found in the audi
tor's report (in italics), while the opinion of the court in
the same case refers to the trust in question as 'a trust for
a spendthrift as it is termed' lid. at 2781. That the phrase
had not become familiar by 1882 is indicated by Thackara
v. Mintzer [100 Pa. 151 (1882)]. where the head note refers
to a 'spendthrift son trust,' but the court does not use that
or any similar phrase. And in 1883, in the first edition of
his Restraints on Alienation, Uohn Chipman] Gray used the
phrase only rarely. and then spoke rather apologetically of
'spendthrift trusts so called.' In the second edition of this
book, published twelve years later, the use of the phrase
is frequent." Erwin N. Griswold, Spendthrift Trusts 33, at
32 (2d ed. 1947).
split-interest trust. See charitable-remainder trust.
spray trust. See sprinkle trust.
sprinkle trust. A trust in which the trustee has discre
tion to decide how much will be given to each ben
eficiary. -Also termed spray trust. See SPRINKLE
POWER.
standby trust. A trust created to manage a person's
assets while he or she is out ofthe country or disabled.
Trusts (;::::> 14.]
supplemental-needs trust. A trust established to
provide supplemental income for a disabled benefi
ciary who is receiving or may be eligible to receive
government benefits. -This type of irrevocable trust
is often used by parents ofdisabled children to ensure
the beneficiary's eligibility for government benefits by
expressly prohibiting distributions that may be used
for the beneficiary's food, shelter, or clothing. [Cases:
Trusts C=> 11(1).]
support trust. (1946) A discretionary trust in which
the settlor authorizes the trustee to pay to the ben
eficiary as much income or principal as the trustee
believes is needed for support, esp. for "comfortable
support" or "support in accordance with the benefi
ciary's standard ofliving." -The beneficiary's interest
cannot be voluntarily transferred, but creditors who
provide necessaries can usu. reach it; general creditors
cannot. [Cases: Trusts
technical trust. See passive trust.
tentative trust. See Totten trust.
testamentary trust (tes-td-men-td-ree or -tree). (1832) A
trust that is created by a will and takes effect when the
settlor (testator) dies. Also termed trust under will.
Cf. inter vivos trust. [Cases: Wills (;::::>669-694.]
Totten trust. (1931) A revocable trust created by one's
deposit of money, typically in a savings account, in
1655 trust
the depositor's name as trustee for another. - A Totten
trust is an early form of"pay on death" account, since
it creates no interest in the beneficiary unless the
account remained at the depositor's death. Its name
derives from the earliest decision in which the court
approved the concept, even though the formalities of
will execution were not satisfied: In re Totten, 71 N.E.
748 (N.Y. 1904). A Totten trust is commonly used to
indicate a successor to the account without having
to create a will, and thus it is a will substitute.
Also termed tentative trust; bank-account trust; sav
ings-account trust; saVings-bank trust; trustee bank
account. [Cases: Trusts C'=:'34(l).]
"A deposit by one person of his own money, in his own
name as trustee for another, standing alone, does not
establish an irrevocable trust during the lifetime of the
depositor. It is a tentative trust merely, revocable at will,
until the depositor dies or completes the gift in his lifetime
by some unequivocal act or declaration, such as delivery
of the pass book or notice to the beneficiary. In case the
depositor dies before the beneficiary without revocation,
or some deCisive act or declaration of disaffirmance, the
presumption arises that an absolute trust was created as
to the balance on hand at the death of the depositor." In re
Totten, 179 N.Y. 112, 125-26 (1904) (Vann,J.).
transgressive trust. A trust that violates the rule against
perpetuities. See RULE AGAINST PERPETUITIES.
trust de son tort (da sawn [or son] tor[t]). See construc
tive trust.
trust ex delicto. See constructive trust.
trust ex maleficio. See constructive trust.
trust for support. A trust that, by its terms, prOVides
that the trustee must payor apply only as much of
the income and principal as is necessary for the edu
cation and support of the beneficiary. [Cases: Trusts
280.]
trust in invitum. See constructive trust.
trust under will. See testamentary trust.
2503(b) trust. A trust that requires a distribution
of income to the benefiCiary at least annually, and
provides that gifts to the trust qualifying as gifts ofa
present interest become eligible for the annual gift-tax
exclusion. -It is named after the section of the IRS
code on which it is based. IRC (26 USCA) 2S03(b).
[Cases: Internal Revenue (;::=)4206.J
2503(c) trust. A trust with only one beneficiary, who
must be a minor and must have the power to withdraw
all assets from the trust upon attaining the age of21.
This type of trust derives its name from the require
ments set forth in IRC (26 USCA) 2S03(c). Although
the trust may continue after the beneficiary turns 21,
gifts to the trust will no longer qualify for the annual
exclusion if the beneficiary has no immediate right
to withdraw the gift. -Also termed minor's trust.
[Cases: Internal Revenue C-"---:'4206.30.]
under-65 trust. A discretionary trust established for
the sale benefit ofa Medicaid recipient who is under
the age of6S. -This type of trust may be established
by anyone except the beneficiary, who must be less than 65 years old at the time of creation. The assets
in trust will not be included in the beneficiary's estate
for purposes ofdetermining Medicaid eligibility. The
beneficiary may receive distributions from the trust
during life, but any balance remaining in the trust
must be used to reimburse the state for the benefi
ciary's Medicaid expenditures.
unit-investment trust. 1. A trust in which funds are
pooled and invested in income-producing securi
ties. _ Units of the trust are sold to investors, who
maintain an interest in the trust in proportion to their
investment. 2. An investment company that gives a
shareholder an undivided interest in a fixed pool of
securities held by the trustee. -This type ofcompany
can be organized in several ways (as by trust inden
ture, contract of custodianship or agency, or similar
instrument), but is most commonly organized with
a trust indenture. Such a company does not have a
board ofdirectors and issues only redeemable securi
ties, each of which represents an und ivided interest
in a unit ofspecified securities. IS USCA 80a-4. See
investment company under COMPANY.
unitrust. (1971) A trust from which a fixed percentage
of the fai r market value of the trust's assets, valued
annually, is paid each year to the beneficiary. [Cases:
Trusts C'=:'276.]
voluntary trust. 1. A trust that is not founded on
consideration. -One having legal title to property
may create a voluntary trust by (1) declaring that
the property is to be held in trust for another, and
(2) transferring the legal title to a third person who
acts as trustee. [Cases: Trusts (;:::J 13.] 2. An obliga
tion arising out of a personal confidence reposed in,
and voluntarily accepted by, one for the benefit of
another.
voting trust. A trust used to hold shares ofvoting stock
in a closely held corporation, usu. transferred from
a parent to a child, and empowering the trustee to
exercise the right to vote. -The trust acts as custo
dian of the shares but is not a stockholder. Cf. VOTING
GROUP. [Cases: Corporations C'=:' 198.1(1).]
"At common law there was great suspicion of voting trusts.
One commentator described a voting trust as 'little more
than a vehicle for corporate kidnapping.' This attitude has
largely disappeared. State statutes now uniformly recog
nize the validity of voting trusts and they have received a
more hospitable judicial reception." Robert W. Hamilton,
The Law of Corporations in a Nutshell 199 (3d ed. 1991).
wasting trust. A trust in which the trust property is
gradually depleted by periodic payments to the ben
eficiary.
4. A business combination that aims at monopoly. See
ANTITRUST LAW.
business trust. A form ofbusiness organization, similar
to a corporation, in which investors receive transfer
able certificates ofbeneficial interest instead ofstock
shares. -Also termed Massachusetts trust; common
law trust. lCases: Internal Revenue (;:::>4206; Joint-
Stock Companies and Business Trusts 1, 8.]
trust account 1656
'The business trust was developed in Massachusetts from
1910 to 1925 to achieve limited liability and to avoid restric
tions then existing there on a corporation's acquiring and
developing real estate, by adoption of the trust device, ' , ,"
Henry G. Henn & John R. Alexander, Laws ofCorporations
58, at 117 (3d ed. 1983).
common-law trust. See business trust.
Massachusetts trust. See business trust.
trust account. See CLIENT TRUST ACCOUNT.
trust agreement. See declaration oftrust (2) under DEC
LARATION (1).
trustbuster, n. A person esp. a federal officer -who
seeks the dissolution ofbusiness trusts under the anti
trust laws. See business trust under TRIJST (4).
trust certificate. See EQUIPMENT TRUST CERTIFICATE.
trust company. See COMPANY.
trust corporation. See trust company under COMPANY.
trust deed. 1. See declaration oftrust (2) under DECLARA
TION (1).2. See deed oftrust under DEED.
trust de son tort (da sawn [or son] tor[tD. See construc
tive trust under TRUST.
|
trust de son tort (da sawn [or son] tor[tD. See construc
tive trust under TRUST.
trust distribution. See DISTRIBUTION.
trustee (tras-tee), n. (l7c) 1. One who stands in a fidu
ciary or confidential relation to another; esp., one who,
having legal title to property, holds it in trust for the
benefit of another and owes a fiduciary duty to that
beneficiary . Generally, a trustee's duties are to convert
to cash all debts and securities that are not qualified
legal investments, to reinvest the cash in proper securi
ties, to protect and preserve the trust property, and to
ensure that it is employed solely for the beneficiary, in
accordance with the directions contained in the trust
instrument. [Cases: Trusts 171.]
bare trustee. A trustee of a passive trust. A bare
trustee has no duty other than to transfer the property
to the beneficiary. See passive trust under TRUST.
corporate trustee. (1S52) A corporation that is empow
ered by its charter to act as a trustee, such as a bank
or trust company.
indenture trustee. A trustee named in a trust inden
ture and charged with holding legal title to the trust
property; a trustee under an indenture.
joint trustee. See COTRUSTEE.
judicial trustee. (ISc) A trustee appointed by a court
to execute a trust.
quasi-trustee. (1830) One who benefits from a breach
of a trust to a great enough degree to become liable
as a trustee.
successor trustee. (1866) A trustee who succeeds an
earlier trustee, usu. as provided in the trust agree
ment. [Cases: Trusts C=>169,243.]
testamentary trustee (tes-t;J-men-t;J-ree or -tree). (1811)
A trustee appointed by or acting under a will; one
appointed to carry out a trust created by a will. [Cases:
Wills \.~681.] township trustee. One ofa board ofofficers to whom, in
some states, a township's affairs are entrusted. [Cases:
Towns C=>28.]
trustee ad litem (ad h-tem or -t;Jm). (1921) A trustee
appointed by the court.
trustee de son tort (d<'J sawn [or son) tor[t]). (1857) A
person who, without legal authority, administers
a living person's property to the detriment of the
property owner. See constructive trust under TRUST.
[Cases: Trusts
trustee ex maleficio (eks mal-a-fish-ee-oh). (1837)
A person who is guilty of wrongful or fraudulent
conduct and is held by equity to the duty ofa trustee,
in relation to the subject matter, to prevent him or her
from profiting from the wrongdOing.
2. Bankruptcy. A person appointed by the U.S. Trustee
or elected by creditors or appointed bya judge to admin
ister the bankruptcy estate during a bankruptcy case .
The trustee's duties include (1) collecting and reducing
to cash the assets ofthe estate, (2) operating the debtor's
business with court approval ifappropriate to preserve
the value ofbusiness assets, (3) examining the debtor at
a meeting ofcreditors, (4) filing inventories and making
periodic reports to the court on the financial condi
tion ofthe estate, (5) investigating the debtor's financial
affairs, (6) examining proofs ofclaims and objecting to
improper claims, (7) furnishing information relating to
the bankruptcy to interested parties, and (8) opposing
discharge through bankruptcy, if advisable. A trustee
is appointed or elected in every Chapter 7 case, and
is appointed in every Chapter 12 and Chapter 13 case
under the Bankruptcy Code. A trustee is not appointed
or elected in a Chapter 11 case unless the court finds
that a trustee is needed and appoints one. In most
Chapter 11 cases, the bankruptcy estate is administered
by the debtor in possession, rather than by a trustee.
The role ofa bankruptcy trustee varies depending on
the type ofbankruptcy case. 11 USC A 701-03,1104,
1202. -Also termed (in sense 2) bankruptcy trustee;
trustee in bankruptcy. See UNITED STATES TRUSTEE.
[Cases: Bankruptcy C=>3001-3011.J
interim trustee. A bankruptcy trustee appOinted to
perform all the functions and duties ofa trustee until
the regular trustee is selected and qualified. Before
the meeting ofcreditors, the interim trustee often pre
liminarily investigates the debtor's assets and finan
cial affairs. [Cases: Bankruptcy
3. DIRECTOR (2). 4. Parliamentary law. An officer who
audits an organization's finances.
trustee, vb. (181S) 1. To serve as trustee. 2. To place
(a person or property) in the hands of one or more
trustees. 3. To appoint (a person) as trustee, often of a
bankrupt's estate in order to restrain a creditor from
collecting moneys due. 4. To attach (the effects of a
debtor) in the hands ofa third person.
trustee, U.S. See CNITED STATES TRUSTEE.
trustee bank account. See Totten trust under TRUST.
1657 turnkey
trustee in bankruptcy. See TRUSTEE (2).
trustee process. See FACTORIZI:sTG PROCESS.
trusteeship. 1. The office, status, or function ofa trustee.
2. Int'llaw. Administration or supervision ofa territory
by one or more countries, esp. under a U.N. trusteeship
council. Cf. MANDATE (6).
trust estate. See CORPUS (1).
trust ex delicto. See constructive trust under TRUST.
trust ex maleficio. See constructive trust under TRUST.
trust fund. (I8c) The property held in a trust by a trustee;
CORPUS (1). [Cases: Trusts C~L]
common trust fund. (1852) A trust fund set up within a
trust department to combine the assets ofnumerous
small trusts to achieve greater investment diversifi
cation. -Common trust funds are regulated by state
law.
pooled-income fund. See POOLED-INCOME FU:sTD.
trust-fund doctrine. (1892) The principle that the assets
of an insolvent company, including paid and unpaid
subscriptions to the capital stock, are held as a trust
fund to which the company's creditors may look for
payment of their claims. -The creditors may follow
the property constituting this fund, and may use it to
reduce the debts, unless it has passed into the hands of
a bona fide purchaser without notice. -Also termed
trust-fund theory. [Cases: Corporations C=544(2).j
trust indenture. See INDENTURE.
Trnst Indenture Act. A federal law, enacted in 1939,
designed to protect investors ofcertain types ofbonds
by requiring that (1) the SEC approve the trust inden
ture, (2) the indenture include certain protective
clauses and exclude certain exculpatory clauses, and
(3) the trustees be independent ofthe issuing company.
15 USCA 77aaa et seq. -The Act is administered by
the U.S. Securities and Exchange Commission. [Cases:
. Securities Regulation (;"":;J29.10-29.14.J
trust indorsement. See INDORSEME:sTT.
trust in invitum (in in-vI-t;;Jm). See constructive trust
under TRUST.
trust instrument. See declaration oftrust (2) under DEC-
LARATJO:sT (1).
trust legacy. See LEGACY.
trust officer. See OFFICER (1).
trustor. (1855) One who creates a trust; SETTLOR (1).
trust ownership. See OW:sTERSHIP.
trust power. See beneficial power under POWER (5).
trust process. See PROCESS.
trust property. See CORPUS (1).
trust receipt. 1. A pre-UCC security device -now
governed by Article 9 of the Code -consisting of a
receipt stating that the wholesale buyer has possession
of the goods for the benefit of the financier. -Today
there must usu. be a security agreement coupled with
a filed financing statement. [Cases: Chattel Mortgages Sales (::'~454.1 2. A method of financing com
mercial transactions by which title passes directly from
the manufacturer or seller to a banker or lender, who as
owner delivers the goods to the dealer on whose behalf
the banker or lender is acting, and to whom title ulti
mately goes when the banker's or lender's primary right
has been satisfied.
trust relationship. See RELATIONSHIP.
trust res (reez or rays). See CORPUS (1).
trust territory. See TERRITORY.
trust under will. See testamentary trust under TRUST.
trusty, n. (1855) A convict or prisoner who is considered
trustworthy by prison authorities and therefore given
special privileges. [Cases: Prisons 113, 170.]
truth. (bef. 12c) 1. A fully accurate account of events;
factuality. 2. Defamation. An affirmative defense by
which the defendant asserts that the alleged defama
tory statement is substantially accurate. [Cases: Libel
and Slander
Truth in Lending Act. See CONSl;MER CREDIT PROTEC
TION ACT. -Abbr. TILA.
truth-seeker. One who strives to reveal the truth <the
trial lawyer should be a truth-seeker>.
truth, the whole truth, and nothing but the truth. The
words used in the common oath administered to a
witness who is about to testify <do you swear or affirm
that you shall tell the truth, the whole truth and nothing
but the truth?>. _ The purpose ofthe second part ofthe
oath is to preclude the possibility ofsupressio veri; the
purpose ofthe third part is to preclude the possibility of
suggestio falSi. See SUPPRESSIO VERI; SUGGESTIO FALSI.
[Cases: Oath Witnesses ~227.]
try, vb. (l3c) To examine judicially; to examine and
resolve (a dispute) by means ofa trial.
try title. The judicial examination ofa title. See TRESPASS
TO TRY TITLE; action to quiet title under ACTION (4).
TSCA. abbr. Toxic Substances Control Act. 42 USCA
2601 et seq. [Cases: Environmental Law (;::::>413.]
TTB. abbr. ALCOHOL AND TOBACCO TAX AND TRADE
BUREAU.
tubman (tab-m;m). Hist. A junior barrister in the Court
of Exchequer who made motions that were second in
precedence to those ofthe postman. -'The tubman was
so called because he stood by a tub anciently used as a
measure ofcapacity. Cf. POSTMAN.
Tucker Act. A federal law enacted in 1887 to amelio
rate the inadequacies of the original authority of the
Court ofClaims by extending that court's jurisdiction
to include (1) claims founded on the Constitution, a
federal statute, or a federal regulation, and (2) damage
claims in cases not arising in tort. [Cases: Federal
Courts C= 1071.]
turncoat witness. See WITNESS.
turnkey, adj. (1927) 1. (Of a product) provided in a state
of readiness for immediate use <a turnkey computer
turnkey 1658
network>. 2. Of, relating to, or involving a product
provided in this manner <a turnkey contract>.
turnkey, n. A jailer; esp., one charged with keeping the
keys to a jail or prison.
turnkey contract. See engineering, procurement, and
construction con tract under CONTRACT.
turnkey drilling contract. See DRILLING CONTRACT.
turnover duty. Maritime law. A shipowner's obligation
to provide safe working conditions and to give notice
of any nonobvious hazards regarding instruments and
areas that the shipowner turns over to the stevedore
and longshoremen while the ship is being loaded or
unloaded. Cf. ACTIVE-OPERATIONS DUTY; INTERVEN
TION DUTY. [Cases: Shipping ~84(3).1
turnover order. See ORDER (2).
turn state's evidence, vb. (1846) To cooperate with
prosecutors and testify against other criminal defen
dants <after hours of intense negotiations, the suspect
accepted a plea bargain and agreed to turn state's
evidence>.
turntable doctrine. See ATTRACTIVE-NUISANCE DOC
TRINE.
turpis causa (tar-pis kaw-za). [Latin "immoral consid
eration"] See immoral consideration under CONSIDER
ATION (1).
turpitude (tar-pa-t[y]ood). See MORAL TURPITUDE.
tutela (t[yloo-tee-Ia), n. [Latin "tutelage"] Roman law.
A type of guardianship either for those not having
reached puberty (tutela impuberum) or for women
(tutela mulierum). -The guardian was called the tutor,
the ward the pupillus. Guardians for women no longer
existed in Justinian's time. Cf. CURA.
tutelage (t[y]oo-t<l-lij), n. 1. The act of protecting or
guiding; guardianship. 2. Int'llaw. The state of being
under the care and management of an international
organization such as the League of Nations or United
!\ations. _ This term applies, for example, to the status
of a people who do not yet benefit from a fully opera
tional government of their own -such as people dis
placed by war and living in a territory that will in the
future |
fully opera
tional government of their own -such as people dis
placed by war and living in a territory that will in the
future be given its autonomy.
tutor, n. 1. One who teaches; esp., a private instructor. PI.
tutors. 2. Roman & civil law. A guardian of a minor; a
person appointed to have the care ofthe minor's person
and estate. -The guardian of a minor past the age of
puberty is called a curator and has duties somewhat
different from those of a tutor. PI. tutores. [Cases:
Guardian and Ward ~1O, 17.]
tutor dativus (t[y]oo-tor [or -dr] da-tI-vas). [Latin]
Roman law. A tutor appointed by the court upon
application. PI. tutores dativi.
tutor gerens (t[y]oo-tor [or -tdr] jeer-enz). [Latin]
Roman law. A tutor who, though not sole tutor,
actually administered the ward's affairs. PI. tutores
gerentes. tutor legitimus (tfy]oo-tor [or -ar]ld-jit-i-mas). [Latin]
Roman law. A tutor-at-law; a tutor by virtue of the
relationship with the pupil, such as a paternal uncle.
PI. tutores legitimi.
tutor testamentarius (t[y]oo-tor [or -dr] tes-td-men
tair-ee-ds). [Latin] Roman law. A tutor appointed
by will to have the guardianship over the testator's
children. PI. tutores testamentarii.
undertutor. Civil law. A person appointed by a court
to represent a minor under the care of a tutor when
the interests of the minor conflict with that of the
tutor. See TUTORSHIP. [Cases: Guardian and Ward
tutorio nomine (t[y]oo-tor-ee-oh nahm-a-nee). [Latin]
Hist. In the name and character of tutor.
tutor legitimus. See TUTOR.
tutorship. Civil law. The office and power of a tutor; the
power that an individual has, sui juris, to take care of
one who cannot care for himself or herself. _ The four
types oftutorship are (1) tutorship by nature, (2) tutor
ship by will, (3) tutorship by the effect of the law, and
(4) tutorship by judicial appointment. La. Civ. Code art.
247. [Cases: Guardian and Ward
dative tutorship. Civil law. Tutorship that arises from
a court's appointment, usu. on the advice of the
family. -Also termed dative curatorship; tutorship
by judicial appointment. [Cases: Guardian and Ward
G'=' 10.]
legal tutorship. Civil law. Tutorship that is bestowed
by statute and does not require a court's or family's
approval. For example, a spouse has the legal tutor
ship ofthe incompetent spouse. -Also termed tutor
ship by the effect of the law. [Cases: Guardian and
Ward C::> 10.]
tutorship byjudicial appointment. Civil law. See dative
tutorship.
tutorship by nature. 1. Tutorship ofa minor child that
belongs by right to a surviving parent. 2. Tutorship of
a minor child that belongs to the parent under whose
care the child has been placed following divorce or
judicia] separation. -Ifthe parents are awarded joint
custody, both have cotutorship and equal authority,
privileges, and responsibilities. La. Civ. Code art. 250.
[Cases: Child Custody C-:;) 1.]
tutorship by the effect ofthe law. Civi/law. See legal
tutorship.
tutorship by will. Tutorship that is created (1) by the
will ofthe parent who dies last, or (2) by any declara
tion of the surviving father or mother (or the parent
who is the curator of the other spouse), executed
before a notary and two witnesses. La. Civ. Code art.
257.
tutor testamentarius. See TUTOR.
tutory (t[y]oo-tdr-ee). 1. Guardianship; charge. 2.
Tutorage; tutelage. Also spelled tutry; tutoury. Cf.
TUTELAGE (1).
1659
tutrix. Archaic. A female tutor. See TUTOR (2).
tutus accessusnonfuit (t[y]oo-ta$ ak-ses-as non fyoo-it).
[Latin] Hist. There was no safe access.
TVA. abbr. TENNESSEE VALLEY AUTHORITY.
Twelfth Amendment. The constitutional amendment,
ratified in 1804, that altered the electoral-college system
by separating the balloting for presidential and vice
presidential candidates . In 1800, members of the
Electoral College could cast votes only for the office
of President, and Thomas Jefferson and his running
mate Aaron Burr each received the same number of
votes. The House of Representatives had to break the
tie. [Cases: United States
twelve-day rule. Criminal procedure. A rule in some
jurisdictions requiring that a person charged with a
felony be given a preliminary examination no later than
12 days after the arraignment on the original warrant.
[Cases: Criminal LawC=)264.]
twelve-month liquidation. See LIQUIDATION.
Twelve Tables. Roman law. 1he earliest surviving legiS
lation enacted by the Romans, written on 12 tablets in
the 5th century B.C. The Tables set out many rights
and duties of Roman citizens, including debtors' rights,
family law, wills, torts, civil procedure, and some public
law. 1hey substituted a written body oflaws, easily
accessible and binding on all citizens of Rome, for an
unwritten usage accessible to only a few. The law ofthe
Twelve Tables was also known as the Lex Duodecim
Tabularum.
"The Twelve Tables continued to be recognized for many
centuries as the fundamental law of the Romans; they did
not formally lose this character until it was taken from
them by the legislation ofJustinian:' James Hadley, Intro
duction to Roman Law 74-75 (1881).
Twentieth Amendment. The constitutional amendment
ratified in 1933, that changed the date of the presiden
tial and vice-presidential inaugurations from March 4
. to January 20, and the date for congressional conven
tion from March 4 to fanuary 3, thereby eliminating
the short session of Congress, during which a number
of members sat who had not been reelected to office.
Also termed lame-duck amendment. [Cases: United
States
Twenty-fifth Amendment. The constitutional amend
ment, ratified in 1967, that established rules of suc
cession for the presidency and vice presidency in the
event of death, resignation, or incapacity. Article II,
1 ofthe Constitution provides for the Vice President
to assume the President's powers and duties but does
not clearly state that the Vice President also assumes
the title of President. [Cases: United States
Twenty-first Amendment. The constitutional amend
ment, ratified in 1933, that repealed the 18th Amend
ment (which established national Prohibition) and
returned the power to regulate alcohol to the states.
[Cases: Intoxicating Liquors 17.]
2503(b) trust. See TRUST (3).
2503(,) trust. See TRUST (3), two-issue rule
Twenty-fourth Amendment. The constitutional amend
ment, ratified in 1964, that prohibits the federal and
state governments from restricting the right to vote in
a federal election because ofone's failure to pay a poll
tax or other tax. [Cases: Elections ~83.]
Twenty-second Amendment. The constitutional amend
ment, ratified in 1951, that prohibits a person from
being elected President more than twice (or, if the
person succeeded to the office with more than half the
predecessor's term remaining, more than once). [Cases:
United States C=>26.]
Twenty-seventh Amendment. The constitutional
amendment, ratified in 1992, that prevents a pay raise
for senators and representatives from taking effect
until a new Congress convenes . This amendment was
proposed as part of the original Bill of Rights in 1789,
but it took 203 years for the required three-fourths of
the states to ratify it. -Also termed Madison Amend
ment. [Cases: United States ~39(6).l
Twenty-sixth Amendment. The constitutional amend
ment, ratified in 1971, that sets the minimum voting
age at 18 for all state and federal elections. [Cases: Elec
tions G-'-:::> 18.]
Twenty-third Amendment. The constitutional amend
ment, ratified in 1961, that allows District ofColumbia
residents to vote in presidential elections. [Cases:
United States
twist, n. Slang. An informant who provides testimony
in exchange for leniency in sentencing, rather than for
money. See INFORMANT.
twisting, n. An insurance agent's or company's misrep
resenting or misstating facts, or giving an incomplete
comparison of policies, to induce an insured to give up
a policy in one company and buy another company's
policy. [Cases: Insurance G-'-:::> 1563, 1618.]
two-controlled-studies standard. The requirement by
the Federal Trade Commission that before the maker
of an over-the-counter painkiller can advertise that it
is better or has fewer side effects than another brand,
the maker must verify the claim in two scientifically
controlled studies.
two-dismissal rule. (1944) The rule that a notice ofvol
untary dismissal operates as an adjudication on the
merits -not merely as a dismissal without prejudice
when filed by a plaintiff who has already dismissed the
same claim in another court. [Cases: Federal Civil Pro
cedure C--:;) 1714; Pretrial Procedure C=>'519.]
245(i) waiver. Immigration law. An Immigration and
Nationality Act provision that allows certain quali
fied aliens who are otherwise ineligible for adjustment
of their status to pay a penalty for the convenience of
having their status adjusted to permanent-resident
status without having to leave the United States. 8
USCA 1255(i). Cf. ADJUSTMENT OF STATUS. [Cases:
Aliens, Immigration, and Citizenship C=>309.]
two-issue rule. (1929) The rule that if multiple issues
were submitted to a trial jury and at least one of them
1660 two-party payment
is error-free, the appellate court should presume that
the jury based its verdict on the proper issue -not on
an erroneous one -and should therefore affirm the
judgment. [Cases: Appeal and Error <>1068(2).]
two-party payment. See PAYMENT.
two-round voting. See VOTING.
two-stage trial. See bifurcated trial under TRIAL.
two-tier offer. A two-step technique by which a bidder
tries to acquire a target corporation, the first step
involving a cash tender offer and the second usu. a
merger in which the target company's remaining share
holders receive securities from the bidder (these securi
ties ordinarily being less favorable than the cash given
in the first step).
two-witness rule. (1900) 1. The rule that, to support
a perjury conviction, two independent witnesses (or
one witness along with corroborating evidence) must
establish that the alleged perjurer gave false testimony.
[Cases: Perjury <>34.] 2. The rule, as stated in the
U.S. Constitution, that no person may be convicted of
treason without two witnesses to the same overt act
or unless the accused confesses in open court. U.S.
Canst. art. IV, 2, d. 2. [Cases: Treason <>13.]
tying, adj. Antitrust. Of or relating to an arrangement
whereby a seller sells a product to a buyer only if the
buyer purchases another product from the seller <tying
agreement>. [Cases: Antitrust and Trade Regulation
<>568.J
tying arrangement. Antitrust. (1953) A seller's agreement
to sell one product or service only ifthe buyer also buys
a different product or service; a seller's refusal to sell
one product or service unless the buyer also buys a dif
ferent product or service. -The product or service that
the buyer wants to buy is known as the tying product or
tying service; the different product or service that the
seller insists on selling is known as the tied product or
tied service. Tying arrangements may be illegal under
the Sherman or Clayton Act if their effect is too anti
competitive. -Also termed tying agreement; tie-in;
tie-in arrangement. cr. RECIPROCAL DEALING. [Cases:
Antitrust and Trade Regulation <>568.] "The courts have developed an easily articulated text for
so-called per se illegal tying arrangements, although the
test varies from one circuit court to another.... In opera
tion. the tests are similar, and the threepart test combines
elements that are separated in the tests of other circuits.
For purpose of analYSis we use this fivepart test: (1) There
must be separate tying and tied products; (2) there must
be 'evidence of actual coercion by the seller that in fact
forced the buyer to accept the tied product .. .'; (3) the
seller must possess 'sufficient economic power in the tying
product market to coerce purchaser acceptance of the tied
product. .'; (4) there must be 'anticompetitive effects in
the tied market .. .'; and (5) there must be 'involvement of
a "not insubstantial" amount of interstate commerce in the
tied product market ....'" Herbert Hovenkamp, Federal
Antitrust Policy 392 (2d ed. 1999) (quoting Yetsch v. Texaco,
Inc., 630 F.2d 46, 56, 57 (2d Or. 1980.
"The traditional |
0 F.2d 46, 56, 57 (2d Or. 1980.
"The traditional objection to tying arrangements is that they
enable a firm having a monopoly in one market to obtain a
monopoly in a second one. Thus, a firm having monopoly
power in the market for business machines could obtain a
monopoly on punch cards as well simply by refusing to sell
or lease its machines unless the purchaser or lessee agreed
to use only its punch cards in the machines." Richard A.
Posner, Antitrust Law 197 (2d ed. 2001).
tying product. See TYING ARRANGEMENT.
tying service. See TYING ARRANGEMENT.
typed drawing. See DRAWING.
typed-form drawing. See typed drawing under
DRAWING.
typographum (tI-pog-r~-fdm). [Latin] Hist. Impressed
by use of a type, as distinguished from chirographum
("written by hand").
tyranny. 1. The severe deprivation of a natural right.
2. The accumulation of all powers the legislative,
executive, and judicial- in the same hands (whether
few or many). _ Sense 2 expresses the Madisonian
view of tyranny, to be found in The Federalist, No. 47.
3. Arbitrary or despotic government; the severe and
autocratic exercise ofsovereign power, whether vested
constitutionally in one ruler or usurped by that ruler by
breaking down the division and distribution of govern
mental powers. tyrannical, tyrannous, adj.
tyrant, n. A sovereign or ruler, legitimate or not, who
wields power unjustly and arbitrarily to oppress the
citizenry; a despot.
u
U3C. abbr. U~IFORM CONSUMER CREDIT CODE.
UAA. abbr. UNIFORM ADOPTION ACT.
UAGA. abbr. UNIFORM ANATOMICAL GIFT ACT.
U.B. abbr. Upper Bench. See barlCus superior under
BANCUS.
uberior titulus (yoo-heer-ee-or tich-a-lds). [Latin] Hist.
The fuller title.
uberrimae fidei (yoo-her-d-mee fi-dee-I). [Latin] (1850)
Of the utmost good faith. See contract uberrimae fidei
under CONTRACT. [Cases; Insurance <:;=1867, 2996.]
uberrimafides (yoo-ber-J-mJ fI-deez), n. [Latin] Utmost
good faith <a contract requiring uberrima fides>.
ubi (yoo-bI or oo-bee). [Latin] Where.
ubi aberat animus foenerandi (YOO-bI a-her-at an-a-mas
fee-n;l-ran-dI). [Latin] Hist. Where the intention of
taking of a usurious interest was wanting. _ A lender
was not liable for usurious provisions in a contract
unless the lender had the requisite intention ofexacting
the money. Cf. USURA VELATA.
ubi defunctus habuit domicilium (yoO-bI di-bngk-t;ls
hay-byoo-it dom-;l-sil-ee-Jm). [Law Latin] Scots law.
Where the decedent had his domicile.
ubi dies cessit, licet nondum venerit (yoO-hI dI-eez
ses-it, II-set non-dam vJ-neer-it). [Latin] Hist. In the
case where the time has arrived at which money is due,
although that time has not arrived at which it may be
exacted. See DEBITUM IN DIEM.
ubi dolus dedit causam contractui (yoo-bl doh-bs
dee-dit kaw-zJm bn-trak-choo-I). [Latin] Hist. Where
fraud gave rise to the contract.
ubi re vera (YOO-bI ree veer-;l). [Latin] Where in reality;
when in truth or in point of fact.
ubi supra (YOO-bI s[y]oo-pra). [Latin] Where stated
above.
Uce. abbr. 1. UNIFORM COMMERCIAL CODE. 2. UNIVER
SAL COPYRIGHT CONVENTIO~.
UCC hattIe of the forms. See BATTLE OF THE FORMS.
UCCC. abbr. UNIFORM CONSUMER CREDIT CODE.
UCCJA. abbr. UNIFORM CHILD CUSTODY JURISDICTION
ACT.
UCCJEA. abbr. UNIFORM CHILD CUSTODY JURISDICTION
AND ENFORCEMENT ACT.
UCE. abbr. Unsolicited commercial e-mail. See SPAM.
UCITA. abbr. UNIFORM COMPUTER INFORMATION
TRANSACTIONS ACT.
UCMJ. abbr. UNIFORM CODE OF MILITARY JUSTICE.
UCP. abbr. UNIFORM CUSTOMS AND PRACTICE FOR COM
MERCIAL DOCUMENTARY CREDITS. UCR. abbr. UNIFORM CRIME REPORTS.
UDITPA. abbr. UNIFORM DIVISION OF INCOME FOR TAX
PURPOSES ACT.
UDRA. abbr. UNIFORM DIVORCE RECOGNITION ACT.
UDRP. abbr. UNIFORM DOMAIN-NAME DISPUTE-RESO
LUTION POLICY.
UDTPA. abbr. UNIFORM DECEPTIVE TRADE PRACTICES
ACT.
UETA. abbr. U~IFORM ELECTRONIC TRANSACTIONS
ACT.
UFCA. abbr. UNIFORM FRAUDULENT CONVEYANCES
ACT.
UFTA. abbr. UNIFORM FRAUDULENT TRANSFER ACT.
UGMA. abbr. Uniform Gifts to Minors Act. See UNIFORM
TRANSFERS TO MINORS ACT.
UHCDA. abbr. UNIFORM HEALTH-CARE DECISION ACT.
UIFSA. abbr. UNIFORM INTERSTATE FAMILY SUPPORT
ACT.
UUe. abbr. UNIFORM INTERSTATE JUVENILE COMPACT.
UJCA. abbr. UNIFORM Jt:VENILE COURT ACT.
U.K. abbr. UNITED KINGDOM.
ukase (yoo-kays oryoo-kays). (I8c) A proclamation or
decree, esp. of a final or arbitrary nature. _ This term
originally referred to a decree issued by a Russian
czar.
ullage (al-ij), n. The degree to which a container ofliquid
falls short of being full.
ullage, vb. To determine the amount of ullage in a con
tainer holding liquid.
ulna ferrea (al-na fer-ee-J). [Law Latin "iron eW] Hist.
An iron measuring device, approximately a yard in
length, kept in the Exchequer as a standard measure.
ulnage (ill-nij). Alnage. See ALNAGER.
ULPA. abbr. UNIFORM LIMITED PARTNERSHIP ACT.
ulterior intent. See INTENT (1).
ulterior remainderman. See REMAINDERMAN.
ultima ratio (ill-ti-ma ray-shee-oh). [Latin] 1. The final
argument; the last resort; the means last to be resorted
to. 2. A final sanction.
ultimate fact. See FACT.
ultimate issue. See ISSUE (1).
ultimate question. See ultimate issue under ISSUE (1).
ultimate species. See SPECIES (2).
ultimatum C:lI-ta-may-t;lm), n. (18c) The final and cate
gorical proposal made in negotiating a treaty, contract,
or the like. -An ultimatum implies that a rejection
1662 ultimatum supplicum
might lead to a break-off in negotiations or, in interna
tionallaw, to a cessation ofdiplomatic relations or even
to war. PI. ultimatums.
ultimatum supplicum. [Law Latin "final or extreme pun
ishment,,] Capital punishment.
ultimogeniture. See BOROUGH ENGLISH.
ultimo loco (al-ii-moh loh-koh). [Latin] Hist. In the last
place. -The phrase usu. referred to the position of a
claimant who takes only after all other claims have been
satisfied.
ultimum tempus pariendi (al-ti-m"m tem-p"s par-ee
en-dl). [Law Latin "last date for giving birth"] Hist. A
time beyond or after which a child may not be born.
-The phrase was used, for example, in determining
legitimacy or paternity.
ultimus heres (al-ti-m"s heer-eez). See HERES.
ultra fines compromissi (al-tm fI-neez kom-pr,,-mis-l).
[Law Latin] Hist. Beyond the limits ofthe submission
to arbitration. See ULTRA VIRES COMPROMISSI.
ultra fines decreti (;d-tra fI-neez di-kree-tI). [Law LatinI
Hist. Beyond the limits ofthe decree.
ultra fines mandati (al-tr" fI-neez man-day-tI). [Law
Latin] Hist. Beyond the limits ofthe mandate.
ultrahazardous. See EXTRAHAZARDOUS.
ultrahazardous activity. See ABNORMALLY DANGEROUS
ACTIVITY.
ultra licitum (al-tra lis-i-tam). [Law Latin] Hist. Beyond
what is permissible or legaL
ultra mare (al-tr" mair-ee or mahr-ee). [Latin] See
BEYOND SEAS.
ultra petita (al-tr" p,,-tI-ta). [Law Latin] Hist. Beyond
that which was sought.
"A judgment or decision is said to be ultra petita when it
awards more than was sought or sued for in the petition
or summons; and the same thing is said of a sentence
when it [does] not conform to its grounds and warrants.
This affords a good ground for the reversal or reduction
of such a decree." John Trayner, Trayner's Latin Maxims
609-10 (4th ed. 1894).
ultra reprises (al-trd ri-prIz-iz). After deduction of
expenses; net.
ultra valorem (al-tra va-lor-"m). [Law Latin] Hist.
Beyond the value.
ultra vires (31-trd VI-reez also veer-eez), adj. [Latin
"beyond the powers (of)"] (I8c) Unauthorized; beyond
the scope of power allowed or granted by a corporate
charter or by law <the officer was liable for the firm's
ultra vires actions>. -Also termed extra vires. Cf.
INTRA VIRES. [Cases: Corporations Cd370(1),385.]
ultra vires, adv.
ultra vires compromissi (al-trd VI-reez [also veer-eez]
kom-pr<l-mis-l). [Law Latin] Hist. Beyond the force of
the submission to arbitration; beyond the authority of
the submission. -An arbitration award, for example,
could be reduced ifthe award was greater than the sub
mission warranted. ultra vires inventarii (al-tra VI-reez [also veer-eez] in
ven-tair-ee-I). [Law Latin] Hist. Beyond the value ofthe
inventory. -An executor was not liable for the dece
dent's debts ultra vires inventarii.
ultroneous witness. See WITNESS.
umbrella insurance. See INSURANCE.
umbrella limited partnership. See PARTNERSHIP.
umbrella order. See BLANKET ORDER (1).
umbrella-partnership real-estate investment trust. See
REAL-ESTATE INVESTMENT TRUST.
umbrella policy. See INSURANCE POLICY.
umbrella protective order. See blanket protective order
under PROTECTIVE ORDER.
UMDA. abbr. UNIFORM MARRIAGE AND DIVORCE ACT.
umpirage (am-plr-ij). 1. The office or authority of an
umpire. 2. The decision (such as an arbitral award) of
an umpire.
umpire. (ISc) An impartial person appOinted to make an
award or a final decision, usu. when a matter has been
submitted to arbitrators who have failed to agree. -An
arbitral submission may provide for the appointment
ofan umpire. -Also termed (in Scots law) oversman.
[Cases: Alternative Dispute Resolution (:::::239.]
umpire, vb.
UMTA. abbr. URBAN MASS TRANSIT ADMINISTRATION.
un-,prefix. (bef. 12c) 1. Not <unassignable>. 2. Contrary
to; against <unconstitutional>.
U.N. abbr. UNITED NATIONS.
unaccrued, adj. Not due, as rent on a lease.
una cum. [Latin] Together with.
unalienable, adj. See INALIENABLE.
unanimous (yoo-nan-a-mas), adj. (17c) 1. Agreeing in
opinion; being in complete accord <the judges were
unanimous in their approval of the recommenda
tion>. 2. Arrived at by the consent ofall <a unanimous
verdict>. See unanimous consent under CONSENT (2);
unanimous vote under VOTE. Cf. without objection
under OBJECTION (3).
unanimous consent. See CONSENT (2).
unanimous-consent agenda. See consent calendar under
CALENDAR (4).
unanimous-consent agreement. Parliamentary law. An
agreement, negotiated between opposing sides debating
a motion, regarding the procedure under which the
assembly will consider the motion. -The unanimous
consent agreement is a common practice in the u.s.
Senate. Also termed time agreement. See unanimous
consent under CONSENT (2).
unanimous-consent calendar. See consent calendar
under CALENDAR (4).
un |
CONSENT (2).
unanimous-consent calendar. See consent calendar
under CALENDAR (4).
unanimous vote. See VOTE (3).
unascertained duty. See DUTY (4).
1663
unauthorized, adj. (16c) Done without authority; specif.
(of a signature or indorsement), made without actual,
implied, or apparent authority. UCC 1-201(43). [Cases:
Principal and Agent (;::J 147-162.]
unauthorized completion. Commercial law. The act of
filling in missing information in a negotiable instru
ment either without any authority to do so or without
adequate authority. Unauthorized completion is
a personal defense, so it can be raised against any
later holder of the instrument who does not have the
rights of a holder in due course. See personal defense
under DEFENSE (4). [Cases: Bills and Notes (;::J60, 378,
452(1).]
nnauthorized indorsement. See INDORSEMENT.
unauthorized practice oflaw. See PRACTICE OF LAW.
unauthorized signature. See SIGNATURE.
unauthorized use of a vehicle. See JOYRIDING.
unavailability, fl. (1855) The status or condition of not
being available, as when a witness is exempted by court
order from testifying . Unavailability is recognized
under the Federal Rules of Evidence as an exemption
to the hearsay rule. Fed. R. Evid. 804. (Cases: Criminal
Law (;::J419(5); Evidence (,'::"::>317(17).]
una voce (yoo-nd voh-see). [Latin] With one voice; unan
imously; without dissent.
unavoidable accident. See ACCIDENT.
unavoidable-accident doctrine. (1961) Torts. The rule
holding no party liable for an accident that was not
foreseeable and that could not have been prevented by
the exercise of reasonable care . The modern trend is
for courts to ignore this doctrine and to rely instead on
the basic concepts of duty, negligence, and proximate
cause. Also termed inevitable-accident doctrine.
[Cases: Automobiles (;::J201(1O); Negligence e=-~440.]
unavoidable casualty. See unavoidable accident under
ACCIDENT.
unavoidable cause. See CAUSE (1).
unavoidable danger. See DANGER.
unbanked, adj. Lacking a formal relationship with a
bank or other financial institution . Unbanked con
sumers are the most frequent users of money services
businesses.
unborn beneficiary. See BENEFICIARY.
unborn child. See CHILD.
unborn-widow rule. (1957) The legal fiction, assumed
under the rule against perpetuities, that a beneficiary's
widow is not alive at the testator's death, and thus a suc
ceeding life estate to her voids any remainders because
the interest would not vest within the perpetuities
period. See RULE AGAINST PERPETUITIES.
unbroken, adj. (14c) Not interrupted; continuous
<unbroken possession by the adverse possessor>.
unbundling rules. Telecommunications. Regulations
passed by the Federal Communications Commission
to effectuate the local-competition requirements ofthe unconscionability
Telecommunications Act of 1996, which reqUires local
exchange carriers to provide access to elements oflocal
exchange networks on an unbundled (Le., separated)
basis. 47 USCA 251; 47 CPR pt. 51. See NETWORK
ELEMENT. [Cases: Telecommunications (~860.1
uncertain damages. See DAMAGES.
uncertificated security. See SECURITY.
uncertified security. See uncertificated security under
SECURITY.
uncia (;m-shee-d), n. [Latin]!. Roman law. One-twelfth
of the as (a pound or, by analogy, an estate or inheri
tance). The English word ounce is derived from this
term. Cf. AS; BES. 2. Hist. A measure ofland used in a
royal charter . The size of an uncia is unclear, but it
may have measured 1,200 square feet (i.e., 12 modii). 3.
Generally, the proportion of one-twelfth.
unciarius heres (;m-shee-air-ee-ds heer-eez). [Latin]
Roman law. An heir to one-twelfth of an estate or
inheritance.
uncitable. See NO:-.!CITABLE.
UNCITRAL Rules. The Arbitration Rules ofthe United
Nations Commission on International Trade Law,
applicable to all international commercial arbitrations
except as prohibited by the local law where the arbitra
tion takes place.
unclean bill oflading. See BILL OF LADING.
unclean-hands doctrine. See CLEAN-HANDS DOCTRI:sJE.
uncollected funds. A credit, such as an increase in the
balance of a checking or other deposit account in a
financial institution, given on the basis of a check or
other right to payment that has not yet been received
from the drawee or other payor. [Cases: Banks and
Banking 122, 133, 137.]
unconditional, adj. (l7c) Not limited by a condition;
not depending on an uncertain event or contingency;
absolute.
unconditional delivery. See DELIVERY.
unconditional discharge. See DISCHARGE (5).
unconditional heir. See HEIR.
unconditional pardon. See absolute pardon under
PARDON.
unconditional promise. See PROMISE.
unconditional release. See RELEASE.
unconscionability (dn-kon-sh<l-nd-bil-<l-tee). (l6c) 1.
Extreme unfairness . Unconscionability is normally
assessed by an objective standard: (1) one party's lack
of meaningful choice, and (2) contractual terms that
unreasonably favor the other party. 2. The principle
that a court may refuse to enforce a contract that is
unfair or oppressive because of procedural abuses
during contract formation or because of overreaching
contractual terms, esp. terms that are unreasonably
favorable to one party while precluding meaningful
choice for the other party . Because unconScionability
depends on circumstances at the time the contract is
1664 unconscionable
formed, a later rise in market price is irrelevant. [Cases:
Contracts
"Traditionally, a bargain was said to be unconscionable in
an action at law if it was 'such as no man in his senses and
not under delusion would make on the one hand, and as no
honest and fair man would accept on the other;' damages
were then limited to those to which the aggrieved party
was 'equitably' entitled. Even though a contract was fully
enforceable in an action for damages, equitable remedies
such as specific performance were refused where 'the sum
total of its provisions drives too hard a bargain for a court
of conscience to assist.' Modern procedural reforms have
blurred the distinction between remedies at law and in
equity. For contracts for the sale of goods, Uniform Com
mercial Code 2302 states the rule of this Section without
distinction between law and equity. Comment 1 to that
section adds, 'The principle is one of the prevention of
oppression and unfair surprise ... and not of disturbance
of allocation of risks because of superior bargaining
power.'" Restatement (Second) of Contracts 208 cmt. b
(1979) (citations omitted).
"Nowhere among the [Uniform Commerciall Code's many
definitions is there one of unconscionability. That the
term is incapable of precise definition is a source of both
strength and weakness." E. Allan Farnsworth, Contracts
4.28, at 310 (3d ed. 1999)
procedural unconscionability. (1973) Unconscionabil
ity resulting from improprieties in contract formation
(such as oral misrepresentations or disparities in bar
gaining position) rather than from the terms of the
contract itself. [Cases: Contracts 1.]
"Most cases of unconscionability involve a combination
of procedural and substantive unconscionability, as it is
generally agreed that if more of one is present, then less
of the other is required." E. Allan Farnsworth, Contracts
4.28, at 312 (3d ed. 1999).
substantive unconscionability. (1973) L'nconscio
nability resulting from actual contract terms that
are unduly harsh, commercially unreasonable, and
grossly unfair given the existing circumstances.
[Cases: Contracts
unconscionable (an-kon-shd-nd-bal), adj. (16c) 1. (Of
a person) having no conscience; unscrupulous <an
unconscionable used-car salesman>. 2. (Of an act or
transaction) showing no regard for conscience; affront
ing the sense ofjustice, decency, or reasonableness <the
contract is void as unconscionable>. Cf. CONSCIONABLE.
[Cases: Contracts 1.]
unconscionable agreement. See AGREEMENT.
unconscionable bargain. See unconscionable agreement
under AGREEMENT.
unconscionable contract. See unconscionable agreement
under AGREEMENT.
unconscious, adj. Without awareness; not conscious . A
person who commits a criminal act while unconscious
may be relieved from liability for the act.
unconsciousness defense. See AUTOMATISM.
unconstitutional, adj. (18c) Contrary to or in conflict
with a constitution, esp. the L'.S. Constitution <the
law is unconstitutional because it violates the First
Amendment's free-speech guarantee>. Cf. NONCON
STITUTIONAL. unconstitutional-conditions doctrine. Constitutional
law. 1. The rule that the government cannot condition a
person's receipt ofa governmental benefit on the waiver
ofa constitutionally protected right (esp. a right under
the First Amendment). -For example, a television
station that receives public funds cannot be forced to
refrain from endorsing political candidates. [Cases:
Constitutional Law G-' 1057.] 2. The rule that the gov
ernment cannot force a defendant to choose between
two constitutionally protected rights. Also termed
doctrine ofunconstitutional conditions.
unconstitutionally vague. See VAGUE.
uncontestable clause. See INCONTESTABILITY CLAUSE.
uncontested divorce. See DIVORCE.
uncontested hearing. See HEARING.
uncontrollable, ad;. Incapable of being controlled.
uncontrollable impulse. See IMPULSE.
uncontrolled-securities-offering distribution. See secu
rities-offering distribution (2) under DISTRIBGTION.
uncopyrightable, adj. (Of a work) ineligible for copy
right protection either because the work lacks origi
nality or because it is an idea, concept, process, or
other abstraction that is not included in one of the
eight covered classifications of copyrightable works.
17 USCA 101-106. [Cases: Copyrights and Intellec
tual Property (;:::::4.]
uncore prist (,m[g]-kor prist). [Law French "still ready")
Hist. A plea by which a party alleges readiness to payor
perform what is justly demanded.
"Yet sometimes, after tender and refusal of a debt, if the
creditor harasses his debtor with an action, it then becomes
necessary for the defendant to acknowledge the debt, and
plead the tender; adding, that ... he is still ready, uncore
prist, to discharge it ...." 3 William Blackstone, Commen
taries on the Laws of England 303 (1768).
uncorrectability defense. Patents. An affirmative defense
in an infringement suit, established by showing (1) that
a coinventor's name was omitted from a patent, and (2)
that the patent cannot be corrected because the named
coinventor acted with deceptive intent. [Cases: Patents
uncounseled, adj. Without the benefit or participation
of legal counsel <an uncounseled conviction> <an
uncounseled defendant>.
uncovered option. See naked option under OPTION.
UNCRC. abbr. UNITED NATIONS CONVENTION ON THE
RIGHTS OF THE CHILD.
unde nihil habet (an-dee nI-hil hay-bat). [Law Latin
"whereof she has nothing"] Hist. A writ of dower for a
widow where no dower had been assigned to her within
the time allowed by law. See WRIT OF DOWER. Cf. DE
DOTE UNDE NIL HABET.
undercapitalization. See CAPITALIZATION.
undercover agent. See AGENT.
undercurrent of surface stream. 'Vater that moves
slowly through the bed of a stream or the lands under
1665
or immediately adjacent to the stream . This water is
considered part ofthe surface stream. -Also termed
underflow ofsurface stream.
underdeveloped country. See DEVELOPING COUNTRY.
underflow ofsurface stream. See UNDERCURRENT OF
SURFACE STREAM.
underground economy. See SHADOW ECONOMY.
underground recording. See BOOTLEG RECORDING (1).
underinsurance. An agreement to indemnify against
property damage up to a certain amount but for less
than the property's full value.
underinsured-motorist coverage. Insurance that pays
for the insured's losses and injuries negligently caused
by a driver does not have enough liability insurance
to cover the damages. Cf. UNINSURED-MOTORIST
COVERAGE. [Cases: Insurance (;::::)2772,2787.]
underlease. See SUBLEASE.
underlessor. See SUBLESSOR.
under one's hand. (Of a person's signature) affixed
manually, as opposed to printed or stamped.
nnder protest. See PROTEST (3).
Undersecretary ofCommerce for Intellectual Property.
See DIRECTOR OF THE UNITED |
. See PROTEST (3).
Undersecretary ofCommerce for Intellectual Property.
See DIRECTOR OF THE UNITED STATES PATENT AND
TRADEMARK OFFICE.
undersheriff. See deputy sheriff under SHERIFF.
undersigned, n. (17c) A person whose name is signed at
the end of a document <the underSigned agrees to the
terms and conditions set forth above>.
under-65 trust. See TRUST.
understand, vb. To apprehend the meaning of; to
know <the testator did not understand what he was
signing>.
understanding, n. (bef. 12c) 1. lhe process of compre
. hending; the act of a person who understands some
thing. 2. One's personal interpretation of an event or
occurrence. 3. An agreement, esp. ofan implied or tacit
nature.
under submission. (ISc) Being considered by the court;
under advisement <the case was under submission in
the court of appeals for more than two years>.
undertake, vb. (13c) l. To take on an obligation or task
<he has undertaken to chair the committee on legal aid
for the homeless>. 2. To give a formal promise; guar
antee <the merchant undertook that the goods were
waterproof>. 3. To act as surety for (another); to make
oneself responsible for (a person, fact, or the like) <her
husband undertook her appearance in court>. [Cases:
Undertakings
undertaking, n. (l4c) 1. A promise, pledge, or engage
ment. [Cases: Undertakings (::::0 1.] 2. A bail bond.
[Cases: Bail
undertenant. See SUBLESSEE.
under the influence. (1879) (Of a driver, pilot, etc.)
deprived of clearness of mind and self-control because underwriting spread
of drugs or alcohol. See DRIVING UNDER THE INFLU
ENCE. lCases: Automobiles (::::0332.]
Undertreasurer ofEngland. Hist. An officer immedi
ately subordinate to the Lord High Treasurer.
undertutor. See TUTOR.
underwriter. 1. INSURER. 2. One who buys stock from the
issuer with an intent to resell it to the public; a person or
entity, esp. an investment banker, who guarantees the
sale of newly issued securities by purchasing all or part
ofthe shares for resale to the public. [Cases: Securities
Regulation 1.18,60.31.]
"The term 'underwriter' derives its meaning from former
British insurance practices. When insuring their cargo
shippers would seek out investors to insure their property.
The insurers would add their signatures and would write
their names under those of the shipper; hence the term
'underwriters.' Both in terms of the insurance industry and
the securities markets, the concept of underwriting has
expanded significantly since its inception." Thomas Lee
Hazen. The Law of Securities Regulation 2.1. at 57 (2d
ed. 1994).
chartered life underwriter. An underwriter who has
satisfied the requirements set forth by The American
College (formerly The American College of Life
Underwriters) to be designated a life insurance under
writer. Abbr. CLU.
insurance underwriter. l. INSURER. Also termed
writer. 2. An insurance-company employee who is
responsible for determining whether to issue a policy
and the amount to charge for the coverage prOVided.
[Cases: Insurance~) 1515.]
underwriting, II. 1. lhe act ofassuming a risk by insuring
it; the insurance of life or property. See INSURANCE.
[Cases: Insurance 1515.] 2. The act of agreeing to
buy all or part ofa new issue ofsecurities to be offered
for public sale. [Cases: Securities Regulation C':::> 11.18,
60.31.] -underwrite, vb.
best-efforts underwriting. Underwriting in which an
investment banker agrees to direct, but not guaran
tee, the public sale of the issuer's securities . 'The
underwriter, or underwriting group, sells the securi
ties as agent for the issuer, and unsold securities are
never issued.
firm-commitment underwriting. Underwriting in
which the underwriter agrees to buy and sell all the
shares to be issued and assumes full financial respon
sibility for any unsold securities . The underwriter,
or underwriting group, buys the securities from the
issuer and resells them as principal. In this type of
underwriting, securities that are not sold to the public
are owned by the underwriter, and the issuer is paid
for those securities as well as the others.
standby underwriting. Underwriting in which
the underwriter agrees, for a fee, to buy from the
issuer any unsold shares remaining after the public
offering. Also termed strict underwriting.
underwriting agreement. See AGREEMENT.
underwriting spread. See SPREAD (4).
1666 undesirable discharge
undesirable discharge. See DISCHARGE (8).
unde vi (an-dee VI). [Latin] Roman law. A praetorian
interdict allowing one who was violently dispossessed
of a thing to recover it.
undigested offering. See OFFERING.
undisclosed agency. See AGENCY (1).
undisclosed principal. See PRINCIPAL (1).
undisputed, adj. Not questioned or challenged; uncon
tested.
undisputed fact. See FACT.
undistributed-earnings tax. See accumulated-earnings
tax under TAX.
undistributed profit. See retained earnings under
EARNINGS.
undivided interest. See INTEREST (2).
undivided profit. See accumulated profit under PROFIT
( 1).
undivided right. See undivided interest under INTEREST
(2).
undivided title. See undivided interest under INTEREST
(2).
undocumented alien. See illegal alien under ALIEN.
undue, adj. (14c) 1. Archaic. Not yet owed; not currently
payable <an undue debt>. 2. Excessive or unwarranted
<undue burden> <undue influence>. unduly, adv.
undue-breadth rejection. See REJECTION.
undue burden, n. See BURDEN.
undue-burden test. (1992) Constitutional law. The
Supreme Court test stating that a law regulating
abortion will be struck down if it places a substantial
obstacle in the path of a woman's right to obtain an
abortion. This test replaced the "trimester analysis"
set forth in Roe v. Wade, in which the state's ability
to restrict abortion increased after each trimester of
pregnancy. Planned Parenthood of Southeastern Pa.
v. Casey, 505 U.S. 833, 112 S.Ct. 2791 (1992). [Cases:
Abortion and Birth Control C='104.]
undue experimentation. Patents. An unreason
able amount of research and testing that would be
required for a person skilled in the appropriate art to
make and work an invention from the specification
in the patent application . If undue experimentation
would be required, the application fails the embodi
ment requirement 01'35 USCA 112. See WANDS TEST.
[Cases: Patents (::::::>99.]
undue hardship. See HARDSHIP.
undue influence. (18c) 1. The improper use of power or
trust in a way that deprives a person of free will and
substitutes another's objective . Consent to a contract,
transaction, or relationship or to conduct is voidable if
the consent is obtained through undue influence.
Also termed implied coercion; moral coercion. [Cases:
Contracts (;:::::-96.]
"Undue influence is unfair persuasion of a party who
is under the domination of the person exercising the persuasion or who by virtue of the relation between
them is justified in assuming that the person will not act
in a manner inconsistent with his welfare." Restatement
(Second) of Contracts 177(1) (1979).
"When at the turn of the twentieth century, the common
law doctrine of duress was expanded to provide relief for
coercion irrespective of the means of coercion, much of the
work of undue influence became unnecessary, The doctrine
has a much more specialized role today, although often
enough the precedents decided when the more general
doctrine prevailed are cited and quoted to the general
confusion of the profession. Today the gist of the doctrine
is unfair persuasion rather than coercion. Euphoria rather
than fear is often, but certainly not always, the state of
mind of the party unduly influenced." John D. Calamari &
Joseph M. Perillo. The Law of Contracts 9-9, at 351-52
(3d ed. 1987).
2. Wills & estates. Coercion that destroys a testator's
free will and substitutes another's objectives in its place .
When a beneficiary actively procures the execution of
a will, a presumption of undue influence may be raised,
based on the confidential relationship between the
influencer and the person influenced. -Also termed
improper influence; (formerly, in both senses) sugges
tion. See COERCION; DURESS. [Cases: Wills (~154.]
undue multiplicity of claims. See AGGREGATION OF
CLAIMS.
undue-multiplicity-of-claims rejection. See REJEC
TION.
undue prejudice. See PREJUDICE.
unduly dangerous conduct. See unreasonably dangerous
conduct under CONDUCT.
undutiful will. See unnatural will under WILL.
unearned income. See INCOME.
unearned increment. See INCREMENT.
unearned interest. See INTEREST (3).
unearned premium. See PREMIUM (1).
unearned-premium reserve. See RESERVE.
unearned surplus. See SURPLVS.
unemployment. The state or condition of not haVing a
job even though available for work and perhaps seeking
it.
structural unemployment. Unemployment resulting
from a shift in the demand for a particular product
or service.
unemployment compensation. See unemployment
insurance under INSURANCE; COMPENSATION.
unemployment insurance. See INSURANCE.
unemployment tax. See TAX.
unenacted law. See LAW.
unencumbered (an-in-k;lm-bard), adj. Without any
burdens or impediments <unencumbered title to
property>.
unenforceable, ad). (1804) (Of a contract) valid but inca
pable of being enforced. Cf. VOID; VOIDABLE. [Cases:
Contracts (;:::::-138(1).]
unenforceable contract. See CONTRACT.
1667
UNEP. abbr. UNITED NATIONS ENVIRONMENT PRO
GRAMME.
unequal, adj. (16c) Not equal in some respect; uneven
<unequal treatment under the law>.
unequivocal (an-i-kwiv-a-kal), adj. (18c) Unambiguous;
clear; free from uncertainty.
unerring (;m-ar-ing also an-er-ing), adj. Incapable of
error; infallible.
UNESCO. abbr. UNITED NATIONS EDUCATIONAL, SCIEN
TIFIC, AND CULTURAL ORGANIZATION.
unessential mistake. See MISTAKE.
unethical, adj. (1871) Not in conformity with moral
norms or standards of professional conduct. See LEGAL
ETHICS.
unexpected, adj. Happening without warning; not
expected.
unexpired term. See TERM (4).
unfair competition. (1876) 1. Dishonest or fraudulent
rivalry in trade and commerce; esp., the practice of
endeavoring to pass off one's own goods or products in
the market for those of another by means of imitating
or counterfeiting the name, brand, size, shape, or other
disti nctive characteristic of the article or its packaging.
[Cases: Antitrust and Trade Regulation C=:40.] 2. The
body oflaw encompassing various business and privacy
torts, all generally based on deceitful trade practices,
including passing off, false advertiSing, commercial
disparagement, and misappropriation.
"The legal doctrine of unfair competition is a development
of the fundamental idea that dealings based on deceit are
legally wrong." Harry D. Nims, The Law ofUnfair Competi
tion and Trade-Marks 6 (1929).
unfair hearing. See HEARING.
unfair labor practice. Any conduct prohibited by state
. or federal law governing the relations among employ
ers, employees, and labor organizations. -Examples
of unfair labor practices by an employer include (1)
interfering with protected employee rights, such as the
right to self-organization, (2) discriminating against
employees for union-related activities, (3) retaliat
ing against employees who have invoked their rights,
and (4) refUSing to engage in collective bargaining.
Examples of unfair labor practices by a labor organi
zation include causing an employer to discriminate
against an employee, engaging in an illegal strike or
boycott, causing an employer to pay for work not to be
performed (Le., featherbedding), and refusing to engage
in collective bargaining. 29 USCA 151-169. [Cases:
Labor and Employment C=-.-O 1427-1504.]
unfair persuasion. (1931) Contracts. A type of undue
influence in which a stronger party achieves a result by
means that seriously impair the weaker party's free and
competent exercise of judgment. -Unfair persuasion is
a lesser form of undue influence than duress and mis
representation. The two primary factors to be consid
ered are the unavailability of independent advice and unico contextu
the susceptibility of the person persuaded. See UNDUE
INFLUENCE (1). [Cases: Contracts e=-~96.]
unfair surprise. (1815) A situation in which |
1). [Cases: Contracts e=-~96.]
unfair surprise. (1815) A situation in which a party,
having had no notice of some action or proffered
evidence, is unprepared to answer or refute it.
unfair trade. An inequitable business practice; esp., the
act or an instance of a competitor's repeating ofwords
in a way that conveys a misrepresentation that mate
rially injures the person who first used the words, by
appropriating credit of some kind earned by the first
user. [Cases: Antitrust and Trade Regulation C=:25.]
Unfair Trade Practices and Consumer Protection
Law. A model statute patterned on the Federal Trade
Commission Act and proposed by the FTC in 1967
for adoption by the states; a state law providing con
sumer-protection remedies, including private causes of
action, for deceptive trade practices and false advertis
ing. _ The Act gives the state attorney general power
to regulate unfair and deceptive trade practices. It also
gives consumers a right to sue offenders directly.
Abbr. UTPCPL. -Also termed Little FTC Acts. [Cases:
Antitrust and Trade Regulation C:::> 126.]
unfinished business. See BUSINESS.
unfinished business and general orders. See BUSINESS.
unfit, adj. (16c) 1. Unsuitable; not adapted or qualified
for a particular use or service <the buyer returned the
unfit goods to the seller and asked for a refund>. [Cases:
Contracts C=:312(5); Sales C=>284(1).] 2. Family law.
Morally unqualified; incompetent <the judge found the
mother unfit and so found that awarding custody of
the child to the father was in the child's best interests>.
[Cases: Child Custody C=-.~32; Infants C=:154.1-159.]
unfitness of a parent. Family law. A parent's failure to
exhibit a reasonable concern for, interest in, or respon
sibility for a child's welfare. _ Regardless of the specific
ground for an allegation ofunfitness, a court considers
the parent's actions and the circumstances surround
ing the conduct in deciding whether unfitness has been
demonstrated. [Cases: Child Custody Infants
C=:154.1-159.]
unforeseen, adj. Not foreseen; not expected <unforeseen
circumstances>.
unfriendly suitor. See CORPORATE RAIDER.
unfriendly takeover. See hostile takeover under
TAKEOVER.
unfunded deferred -compensation plan. See EM PLOYEE
BENEFIT PLAN.
unhandsome dealing. Archaic. See SHARP PRACTICE.
unharmed, adj. Not injured or damaged.
unica taxatio (yoo-na-k<l tak-say-shee-oh). [Law Latin
"a single taxation"] Rist. The practice ofhaving the jury
assess damages against a defaulting defendant as well
as a defendant who contests the case.
unico contextu (yoo-ni-koh k<ln-teks-t[yJoo). [Law Latin]
Rist. In one connection. _ The phrase appeared in ref
1668 unifactoral obligation
erence to that which was accomplished by the same act
or by different acts performed at the same time.
"When there are more parties than one to a deed, it is not
essential to the validity of its execution that they should
subscribe unico contextu i.e., it is not necessary for them
to subscribe at the same time and place. But where (as was
formerly required) two notaries subscribed for a person
who could not write, it was necessary that they should
subscribe unico contextu at the same time and place, and
before the same witnesses." John Trayner, Trayner's Latin
Maxims 611 (4th ed. 1894).
unifactoral obligation. See OBLIGATION.
unified bar. See integrated bar under BAR.
unified credit. See unified estate-and-gift tax credit
under TAX CREDIT.
unified estate-and-gift tax. See unified transfer tax
under TAX.
unified estate-and-gift tax credit. See TAX CREDIT.
unified family court. See COURT.
unified transfer tax. See TAX.
uniform, adj. Characterized by a lack ofvariation; iden
tical or consistent.
uniform act. 1. A law drafted with the intention that
it will be adopted by all or most of the states; esp., a
uniform law. See UNIFORM LAW. Cf. MODEL ACT. 2. See
uniform statute under STATUTE. [Cases; Statutes
226.J
Uniform Adoption Act. A 1994 model statute aimed at
achieving uniformity in adoption laws . The current
version of the Act was promulgated in 1994 by the
National Conference of Commissioners on Uniform
State Laws. State adoption has been largely unsuccess
ful. Earlier versions, in 1953 and 1971, were amended
many times but were enacted in only a few states. -
Abbr. UAA. [Cases: Adoption (::::)1-25.]
Uniform Anatomical Gift Act. A 1968 model statute
that created protocols that govern the giving and receiv
ing of anatomical gifts . Under the Act, persons may
donate their body or parts of their body for purposes
oftransplantation, therapy, research, or education. The
original Act has been adopted in some form in all 50
states and the District of Columbia. It was revised in
1987, and the revised version has been adopted in some
form in at least 22 states. Abbr. UAGA. [Cases: Dead
Bodies
Uniform Child Custody Jurisdiction Act. A 1968 model
statute that sets out a standard (based on the child's
residence in and connections with the state) by which a
state court determines whether it has jurisdiction over
a particular child-custody matter or whether it must
recognize a custody decree issued by another state's
court. _ The Uniform Child Custody Jurisdiction Act
was replaced in 1997 by the Uniform Child Custody
Jurisdiction and Enforcement Act. -Abbr. UCCJA.
See HOME STATE. Cf. PARENTAL KIDNAPPING PREVEN
TION ACT; UNIFORM CHILD CUSTODY JURISDICTION
AND ENFORCEMENT ACT. [Cases: Child Custody (;::;;,
730-753.J Uniform Child Custody Jurisdiction and Enforce
ment Act. A 1997 model statute that provides uniform
methods ofexpedited interstate custody and visitation
orders. This Act was promulgated as a successor to the
Uniform Child Custody Jurisdiction Act. The UCCJEA
brings the Uniform Child Custody Jurisdiction Act
into conformity with the Parental Kidnapping Preven
tion Act and the Violence Against Women Act. The
Act revises child-custody jurisdiction, giving clearer
standards for original jurisdiction and a standard
for continuing jurisdiction. The Act also provides a
remedial process for enforcing interstate child custody
and visitation. -Abbr. UCCJEA. Cf. UNIFORM CHILD
CUSTODY JURISDICTION ACT. [Cases: Child CustodyC::::c
730-753.]
Uniform Code ofMilitary Justice. 1. CODE OF MILITARY
JUSTICE. 2. A model code promulgated by the National
Conference ofCommissioners on Uniform State Laws
to govern state military forces when not in federal
service. 11 D.L.A. 335 et seq. (1974). -Abbr. UCMJ.
[Cases: Military Justice (;:::502.]
Uniform Commercial Code. A uniform law that governs
commercial transactions, including sales of goods,
secured transactions, and negotiable instruments .
The Code has been adopted in some form by every state
and the District of Columbia. Abbe, VCe. [Cases:
Bills and Notes \.>2; Sales Secured Transac
tions
Uniform Computer Information Transactions Act.
A model law that regulates software licenSing and
computer-information transactions . The act draws
upon contract law and the Uniform Commercial
Code to create a regulatory scheme for licensing,
rather than sales or lease, transactions. Among other
things, UCITA applies to contracts for the licensing or
purchase of software, contracts for software develop
ment, and contracts for access to databases through the
Internet. It does not cover goods or services contracts
within the scope of the UCe. -Abbr. UCIT A.
Uniform Consumer Credit Code. A uniform law
designed to simplify and modernize the consumer
credit and usury laws, to improve consumer under
standing ofthe terms ofcredit transactions, to protect
consumers against unfair practices, and the like.
This Code has been adopted by only a few states. -
Abbr. UCCC; U3e. -Also termed Consumer Credit
Code. See CONSUMER CREDIT PROTECTION ACT. [Cases:
Consumer Credit (;::;;, 1.]
Uniform Controlled Substances Act. A uniform act,
adopted by many states and the federal government,
governing the sale, use, and distribution of drugs. 21
USCA 801 et seq. [Cases: Controlled Substances
4,20.J
Uniform Crime Reports. A series of annual crimino
logieal studies (each entitled Crime in the United States)
prepared by the FBI. The reports include data on eight
index offenses, statistics on arrests, and information on
offenders, crime rates, and the like. -Abbr. UCR.
1669
Uniform Customs and Practice for Commercial Docu
meutary Credits. A publication of the International
Chamber of Commerce that codifies widespread
customs of bankers and merchants relating to the
mechanics and operation ofletters ofcredit. Courts
use this publication to supplement and help interpret
primary sources of credit law, such as UCC Article 5. -
Abbr. UCP. [Cases: Banks and Banking C='191.]
Uniform Deceptive Trade Practices Act. A 1964 model
state statute that codified many common-law intellec
tual-property torts, such as trademark infringement,
passing off, trade disparagement, and false advertis
ing, and that provided additional consumer protec
tion against other forms of commercial deception .
The Act provides a laundry list ofprohibited practices,
all involving misrepresentation. -Abbr. UDTPA. See
BABY FTC ACT. [Cases: Consumer Protection G-..c6.]
[Cases: Antitrust and Trade Regulation (>,;;, 126.]
Uniform Determination of Death Act. A 1978 model
statute that provides a comprehensive basis for deter
mining death. This is a technical act that merely
defines death clinically and does not deal with suicide,
assisted suicide, or the right to die. lhe Act was revised
in 1980. It has been adopted in almost all states. [Cases:
Death l.]
Uniform Disposition of Community Property at
Death Act. A 197] model statute designed for non
community-property states to preserve the rights of
each spouse in property that was community property
before the spouses moved to non-community-property
states, unless they have severed or altered their com
munity-property rights.
Uniform Division of Income for Tax Purposes Act.
A unitorm law, adopted by some states, that provides
criteria to assist in assigning the total taxable income
ofa multistate corporation among the various states.
Abbr. UDITPA. [Cases: Taxation C::::'3477.]
Uniform Divorce Recognition Act. A 1947 model code
adopted by some states regarding full-faith-and-credit
issues that arise in divorces. -Abbr. UDRA. [Cases:
Divorce C::::'351.]
Uniform Durable Power of Attorney Act. A 1979
model statute that provides a simple way for a person
to deal with his or her property by proViding a power
ofattorney that will survive after the incompetence of
the principal. The Act was revised in 1987 and has
been adopted in almost every state. [Cases: Principal
and Agent ~42.]
Uniformed Services Former Spouses' Protection Act. A
federal statute that governs the disposition of military
pension benefits to former spouses of persons in the
armed services. 10 USCA 1401 et seq. The Act
permits state courts to treat military-retirement pay
as marital property and to order payment ofup to 50%
of the retirement pay directly to the tormer spouse if
the spouses were married for at least ten years while
the employee served in the military. Abbr. USFSPA.
[Cases: Divorce (:::::)252.3(4).] Uniform Interstate Juvenile Compact
Uniform Electronic Transactions Act. A 1999 model
law designed to support electronic commerce by pro
viding means for legally recognizing and retaining
electronic records, establishing how parties can bind
themselves in an electronic transaction, and provid
ing for the use of electronic records by governmental
agencies. VETA covers electronic records and digital
signatures but applies only if all parties agree to do
business electronically. -Abbr. UETA.
Uniform Enforcement of Foreign Judgments Act.
A uniform state law giving the holder of a foreign
judgment the right to levy and execute as if it were a
domestic judgment. [Cases: Judgment C=814-830.]
Uniform Fraudulent Conveyances Act. A model
act adopted in 1918 to deal with issues arising from
fraudulent conveyances by insolvent persons . This
act differentiated between conduct that was presumed
fraudulent and conduct that required an actual intent
to commit fraud. -Abbr. UFCA. [Cases: Fraudulent
Conveyances ~2.1
Uniform Fraudulent Transfer Act. A model act deSigned
to bring unitormity among the states regarding the
definition of, and penalties for, fraudulent transfers.
This act was adopted in 1984 to replace the Uniform
Fraudulent Conveyances Act. -Abbr. UFTA. [Cases:
Fraudulent Conveyances C::::'2.]
|
Act. -Abbr. UFTA. [Cases:
Fraudulent Conveyances C::::'2.]
Uniform Gifts to Minors Act. See UNIFORM TRANSFERS
TO MINORS ACT. -Abbr. UGMA.
Uniform Health-Care Decisions Act. A 1993 model
statute that facilitates and encourages adults to make
advance directives. Abbr. UHCDA. See ADVANCE
DIRECTIVE; LIVING WILL. [Cases: Health (>~912.1
Uniform Interstate Family Support Act. A 1992 model
statute establishing a one-order system by which an
alimony or child-support decree issued by one state
can be enforced against a former spouse who resides in
another state . This statute has been adopted in every
state and is the basis ofjurisdiction in child -support
suits. The purpose of the Act is to make the pursuit of
interstate child support and paternity more effective,
consistent, and efficient by requiring all states to recog
nize and enforce consistently support orders issued in
other states. Before its enactment, there was consider
able disparity among the states in the way they handled
interstate child-support proceedings, since each state
had differing versions of the earlier uniform law, the
Uniform Reciprocal Enforcement of Support Act. The
Act was revised in 1996 and again in 2001. Abbr.
UIFSA. [Cases: Child Support (>;'500-510.J
Uniform Interstate Juvenile Compact. An agreement
that regulates the treatment ofjuveniles who are not
under proper supervision or control, or who have
run away or escaped, and who are likely to endanger
their own or others' health, morals, or welfare. The
Compact is relied on by the state to transport juvenile
runaways back to their home states. It has now been
universally adopted in the United States, but not always
in its entirety. Abbr. UIJC.
1670 Uniformity Clause
Uniformity Clause. (1881) lhe clause of the U.S. Consti
tution requiring the uniform collection offederal taxes.
U.S. Const. art. I, 8, d. 1. [Cases: Internal Revenue
(:::J3022.]
Uniform Juvenile Court Act. A 1968 model statute
designed to (1) provide for the care, protection, and
moral, mental, and physical development of the
children who come under its provisions, (2) provide
juvenile delinquents with treatment, training, and
rehabilitation rather than criminal punishment, (3)
attempt to keep families together unless separation
of parents and children is necessary for the children's
welfare or is in the public interest, (4) provide a judicial
procedure for a fair hearing and protection ofjuvenile
delinquents' constitutional and other legal rights, and
(5) provide simple interstate procedures to carry out
cooperative measures among the juvenile courts of
different states. -Abbr. U]CA. [Cases: Infants (:::J
131-254.]
uniform law. An unofficial law proposed as legislation
for all the states to adopt exactly as written, the purpose
being to promote greater consistency among the states.
-All the uniform laws are promulgated by the National
Conference of Commissioners on Uniform State Laws.
For a complete collection, see Uniform Laws Annotated.
See uniform statute under STATUTE. Cf. MODEL ACT.
[Cases: Statutes (:::J226.]
Uniform Law Commissioners. See NATIONAL CONFER
ENCE OF COMMISSIONERS ON UNIFORM STATE LAWS.
Uniform Limited Partnership Act. A model law promul
gated in 1916 for adoption by state legislatures to govern
the relationship between the partners of a limited part
nership. _ At one time it was adopted in all states except
Louisiana. The National Conference of Commission
ers on Uniform State Laws promulgated the Revised
Uniform Limited Partnership Act (RULPA) in 1976,
and made substantial amendments to it in 1985. The
amended RULPA has been adopted by most states.
Abbe. ULPA. [Cases; Partnership (:::J351.]
Uniform Mandatory Disposition of Detainers Act. A
1958 model statute requiring a state to timely dispose
of any untried charges against a prisoner in that state,
on the prisoner's written request. The Act has been
adopted by several states. See INTERSTATE AGREEMENT
ON DETAINERS ACT. [Cases: Extradition and Detainers
C='51.]
Uniform Marriage and Divorce Act. A 1970 model
statute that defines marriage and divorce . Exten
sively amended in 1973, the Act was an attempt by the
National Conference of Commissioners on Uniform
State Laws to make marriage and divorce laws more
uniform. The Act's greatest significance is that it intro
duced, as the sole ground for divorce, irreconcilable
differences. Although the UMDA has been enacted in
part in only a handful ofstates, it has had an enormous
impact on marriage and divorce laws in all states.
Abbr. UMDA. Also termed Model Marriage and
Divorce Act. See IRRECONCILABLE DIFFERENCES. Uniform Parentage Act. A 1973 model statute that
provides a means for determining parenthood for the
general welfare of the child and for assigning child
support. The Act abolishes distinctions between
legitimate and illegitimate status for children. Instead,
it directs courts to determine rights and responsibilities
based on the existence of a parent-child relationship.
The Act has been adopted in all states. The Act was
revised in 2000 and amended in 2002. Among other
changes, the revisions provided frameworks for estab
lishing the parentage (esp. paternity) of children born
to married or unmarried couples, and set standards
and rules tor genetic testing. A minority ofstates have
enacted a version of the revised Act. [Cases: Children
Out-of-Wedlock C=> 31.]
Uniform Partnership Act. A 1914 model statute
intended to bring uniformity to state laws govern
ing general and limited partnerships . The Act was
adopted by almost all the states, but has been super
seded in several ofthem by the Revised Uniform Part
nership Act (1994). Abbr. UPA. [Cases: Partnership
C-=351.]lCases: Partnership C=1,351.]
Uniform Premarital Agreement Act. A 1983 model
statute that governs the drafting of prenuptial contracts
and provides a more certain framework for drafting
complete and enforceable agreements . Under the
UPAA, a premarital agreement must be in writing
and Signed by the parties. It becomes effective only
upon marriage. The agreement may govern the parties'
assets, support, and obligations during the marriage, at
death, and upon divorce. 'lbe UPAA has been adopted
in some form in about one-third of the states. Abbr.
UPAA. [Cases: Husband and Wife C=29.}
Uniform Principal and Income Act. A uniform code
adopted by some states governing allocation of prin
cipal and income in trusts and estates. [Cases; Execu
tors and Administrators C=502; Trusts (:::J272; Wills
(:::J684.]
Uniform Probate Code. A 1969 model statute that mod
ernizes the rules and doctrines governing intestate suc
cession, probate, and the administration of estates. -It
has been extensively amended many times since 1969
and has been enacted in a majority of states. -Abbr.
UPC. [Cases; Wills 204.]
Uniform Prudent Investor Act. A 1994 model statute
that sets a standard for the acts of a trustee, adopts
a prudent-investor standard, and prefers a modern
portfolio approach to investing . Under the Uniform
Prudent Investor Act, the trustee is given Significant
power to delegate the selection of investments. The
prudent-investor standard replaces the prudent-person
standard ofinvesting. The portfolio approach provides
that no investment will be viewed in isolation; rather,
it will be viewed as part of the entire portfolio. Under
this theory, even though an investor loses trust assets
on an investment, ifthere is an overall positive return,
the investor will not be liable to the beneficiaries.
Abbr. UPIA. See PRUDENT-INVESTOR RULE.
1671
Uniform Putative and Unknown Fathers Act. A 1988
model statute aimed at codifying Supreme Court deci
sions on the rights of an unwed father in relation to
his child . The Act deals primarily with an unwed
father's right to notice of a termination and adoption
proceeding, to adjudication of paternity, to visitation,
and to custody. -Abbr. UPUFA. -Also termed Model
Putative Fathers Act; Putative Fathers Act.
Uniform Reciprocal Enforcement of Support Act. A
1950 model statute (now superseded) that sought to
unify the way in which interstate support matters were
processed and the way in which one jurisdiction's orders
were given full faith and credit in another jurisdiction.
This Act, which was amended in 1958 and 1960, was
replaced in 1997 with the Uniform Interstate Family
Support Act. Abbr. URESA. See U:-IIFORM INTER
STATE FAMILY SUPPORT ACT. [Cases: Child Support
500-510.]
Uniform Simultaneous Death Act. A 1940 model statute
creating a rule that a person must survive a decedent
by at least 120 hours in order to avoid disputes caused
by simultaneous deaths (as in a common disaster) or
by quickly successive deaths ofpersons between whom
property or death benefits pass on the death of one
survived by the other. In the absence of the l20-hour
period of survival, each person is presumed to have
survived the other for purposes of distributing their
respective estates. The Act was revised in 1993 and has
been adopted in some form by almost every state. See
COMMORIENTES. [Cases: Death 6.]
Uniform Status of Children ofAssisted Conception
Act. A 1988 model statute aimed at ensuring certainty
of legal parentage when assisted conception has been
used. The adopting state has the option ofregulating
or prohibiting contracts with surrogate mothers.
uniform statute. See STATUTE.
Uniform Trade Secrets Act. A 1979 model statute,
. enacted by most states, defining trade secret differ
ently from the common law by being at once broader
(because there is no continuous-use requirement) and
narrower (because information "readily ascertainable
by proper means" cannot qualify) . The Act has three
elements: (1) the information must qualify as a trade
secret; (2) it must be misappropriated, either through
wrongful means or by breaching a duty of confiden
tiality; and (3) the owner must have taken reasonable
precautions to keep the information secret. -Abbr.
UTSA. -Also termed Uniform Trade Secrets Protec
tion Act. [Cases: Antitrust and Trade Regulation
411.]
Uniform Transfers to Minors Act. A 1983 model statute
providing for the transfer of property to a minor and
permitting a custodian who acts in a fiduciary capacity
to manage investments and apply the income from the
property to the minor's support. The Act has been
adopted in most states. It was revised in 1986. Abbr.
UTMA. Also termed Transfers to Minors Act.
Formerly also termed Uniform Gifts to Minors Act; Gifts
to ldinors Act. [Cases: Infants C:-::~28.J union
unify, vb. To cause to become one; to form into a Single
unit.
unigeniture (yoo-nCl-jen-<1-chClr). Archaic. The fact of
being an only child.
unilateral (yoo-nCl-lat-<1r-ClI), adj. (1802) One-sided;
relating to only one of two or more persons or things
<unilateral mistake>.
unilateral act. See ACT (2).
unilateral advance pricing agreement. See ADVANCE
PRICING AGREEMENT.
unilateral contract. See CONTRACT.
unilateral mistake. See MISTAKE
unimproved land. See LAND.
unincorporated association. See ASSOCIATION (3).
unindicted coconspirator. See COCONSPIRATOR.
unindicted conspirator. See unindicted coconspirator
under COCONSPIRATOR.
uninstructed delegate. See DELEGATE.
uninsured-motorist coverage. Insurance that pays for
the insured's injuries and losses negligently caused by
a driver who has no liability insurance. Cf. UNDER IN
SORED-MOTORIST COVERAGE. [Cases: Insurance
2772.]
unintelligible vote. See VOTE (1).
unintentional act. See ACT (2).
unintentional murder. See MURDER.
uninterrupted-adverse-use principle. See CONTINUOUS
ADVERSE-USE PRINCIPLE.
unio (yoo-nee-oh). Eccles. law. A consolidation of two
churches into one.
union, n. An organization formed to negotiate with
employers, on behalf of workers collectively, about
job-related issues such as salary, benefits, hours, and
working conditions . Unions generally represent
skilled workers in trades and crafts. Also termed
labor union; labor organization; organization. See
TRADE COUNCIL. [Cases: Labor and Employment
998.] unionize, vb. unionist, n.
closed union. A union with restrictive membership
requirements, such as high dues and long apprentice
ship periods. Cf. closed shop under SHOP.
company union. 1. A union whose membership is
limited to the employees of a Single company. 2. A
union under company domination.
craft union. A union composed of workers in the
same trade or craft, such as carpentry or plumbing,
regardless ofthe industry in which they work. Also
termed horizontal union.
federal labor union. A |
ing,
regardless ofthe industry in which they work. Also
termed horizontal union.
federal labor union. A local union directly chartered by
the AFL-CIO. See AMERICAN FEDERATION OF LABOR
AND CONGRESS OF INDUSTRIAL ORGANIZATIONS.
horizontal union. See craft union.
independent union. A union that is not affiliated with
a national or international union.
industrial union. A union composed ofworkers in the
same industry, such as shipbuilding or automobile
manufacturing, regardless of their particular trade
or craft. Also termed vertical union.
international union. A parent union with affiliates in
two or more countries.
local union. A union that serves as the local bargaining
unit for a national or international union.
multicraft union. A union composed ofworkers in dif
ferent industries.
national union. A parent union with locals in various
parts ofthe United States.
open union. A union with minimal membership
requirements. Cf. open shop under SHOP.
trade union. A union composed of workers of the same
or of several allied trades; a craft union.
vertical union. See industrial union.
union certification. A determination by the National
Labor Relations Board or a state agency that a particu
lar union qualifies as the bargaining representative for a
segment of a company's workers - a bargaining unit
because it has the support of a majority of the workers
in the unit. -Also termed certification ofbargaining
agent; certification oflabor union.
union contract. See COLLECTIVE-BARGAINING AGREE
MENT.
union givebacks. See CONCESSION BARGAINING.
Union Jack. The common name of the national flag of
the United Kingdom, combining the national flags of
England, Scotland, and Ireland . The Union Jack was
originally a small union flag flown from the jack-staff
at the bow of a vessel. It is different from the Royal
Standard, which bears the royal arms and is the Queen's
personal flag.
union-loss clause. See MORTGAGE-LOSS CLAUSE.
union mortgage clause. See standard mortgage clause
under MORTGAGE CLAUSE.
union rate. See RATE.
union-security clause. A provision in a union contract
intended to protect the union against employers,
nonunion employees, and competing unions. [Cases:
Labor and Employment 1264.]
union shop. See SHOP.
union steward. See STEWARD (2).
unique chattel. See CHATTEL.
unissued stock. See STOCK.
unit. The number of shares, often 100, in which a given
stock is normally traded.
unital (yoo-n;H;:JI), adj. (1860) Of or relating to legal
relations that exist between only two persons. Cf.
MULTITAL. 'The relations of the cestui que trust with the trustee are
in personam or 'unital,' and the same is true of a contract
beneficiary and the promisor ... :. William R. Anson, Prin
ciples of the Law ofContract 326 n.1 (Arthur L. Corbin ed.,
3d Am. ed. 1919).
unitary business (yoo-n;:J-ter-ee). Tax. A business that
has subsidiaries in other states or countries and that
calculates its state income tax by determining what
portion of a subsidiary's income is attributable to activ
ities within the state, and paying taxes on that percent
age. [Cases: Taxation ~3477.]
unitary state. See STATE.
unitary tax. See TAX.
unitas actus (yoo-nl-tas ak-t<ls). [Latin] Roman law.
Unity of action, esp. in the execution ofa will, which
must not be interrupted by any intervening act.
unitas juris (yoo-ni-tas joor-is). [Latin) Hist. Unity of
right.
unit cost. See COST (1).
unit depreciation method. See DEPRECIATION
METHOD.
unite, vb. 1. To combine or join to form a whole. 2. To
act in concert or in a common cause.
United Kingdom. A country in Europe comprising
England, Scotland, Wales, and Northern Ireland, but
not the Isle ofMan or the Channel Islands. Abbr.
UK
United Nations. An international organization estab
lished in 1945 to promote and ensure international
peace and security, to promote friendly relations
between nations, and to contribute in resolving inter
national problems related to economic, social, cultural,
and humanitarian conditions. Abbr. U.N. [Cases:
International Law Cr'"J 1O.45.J
United Nations Convention on the Rights ofthe Child.
An international instrument covering children's civil,
political, economic, social, and cultural rights. _ The
Convention was adopted by the United Nations General
Assembly on November 20, 1989. Only a few nations,
including the United States, have not ratified the con
vention. -Abbr. UNCRC. [Cases: Treaties C=>8.]
United Nations Educational, Scientific, and Cultural
Organization. The arm of the United Nations charged
with promoting the exchange ofeducational, scientific,
and cultural enterprises among nations . Its Copy
right Law Division administers the Universal Copy
right Convention. -Abbr. UNESCO.
United Nations Environment Programme. An organi
zation created in 1972 to encourage education in and
employment ofenvironmentally sound practices in all
nations. Abbr. UNEP.
United Nations Treaty on Principles Governing the
Activities of States in the Exploration and Use of
Outer Space. See OUTER SPACE TREATY.
United States. Abbr. U.S. See UNITED STATES OF
AMERICA.
1673
United States Agency for International Develop
ment. The independent federal agency that adminis
ters U.S. foreign-aid programs to give economic and
humanitarian assistance to developing nations . The
agency became independent by the Foreign Affairs and
Restructuring Act of1998, although its administrator is
under the direct authority and foreign-policy guidance
ofthe Secretary ofState. Abbr. AID; USAID.
United States Air Force. The aviation branch of the
United States armed forces, made up of the Regular
Air Force (standing air force), the Air Force Reserve,
and the Air National Guard. The United States Air
Force is under the authority ofthe U.S. Department of
the Air Force. Abbr. USAF. [Cases: Armed Services
~-:::=4.1
United States Air Force Academy. An institution of
higher learning in the United States Department of
the Air Force responsible for educating and training
commissioned officers for service in the United States
Air Force. Founded in 1954, the academy is located
near Colorado Springs, Colorado. -Abbr. USAFA.
Occasionally also termed (informally) the Colorado Air
Force School. [Cases: Armed Services C=:=> 16.]
United States Arbitration Act. See FEDERAL ARBITRA
TION ACT. -Abbr. USAA.
United States Army. Ihe land-combat and land-oper
ations branch of the United States armed forces.
This branch includes supporting air-and water-trans
port services such as the Army Air Corps. The Army
includes the Regular Army (the standing force), the
Army Reserve, and the Army National Guard when
in active federal service, as in time of war or other
national emergency. The United States Army is under
the authority of the U.S. Department of the Army.
Also termed landforces. -Abbr. USA. [Cases: Armed
Services 4.]
United States Attorney. A lawyer appointed by the Presi
dent to represent, under the direction ofthe Attorney
General, the federal government in civil and criminal
cases in a federal judicial district . One U.S. Attorney is
aSSigned to each ofthe federal judicial districts, except
for the Northern Mariana Islands and Guam. Abbr.
USA. Also termed United States District Attorney.
Cf. DISTRICT ATTORNEY. [Cases: District and Prosecut
ing Attorneys
Assistant United States Attorney. A lawyer appointed
by the Attorney General to act under the direction of
the United States Attorney and represent the federal
government in civil and criminal cases filed in federal
courts. -Abbr. AUSA. [Cases: District and Prosecut
ing Attorneys ('::::>6.]
Special Assistant to the United States Attorney. An
attorney appointed by the Attorney General for
a limited period to assist a United States Attorney
in specific cases. 28 USCA 543. -Abbr. SAUSA.
[Cases: District and Prosecuting Attorneys
United States Bankruptcy Court. See BANKRUPTCY
COURT. United States Copyright Office
United States Botanic Garden. An enclosed garden on
the U.S. Capitol grounds where plants are cultivated for
ceremonial use, public display, and research. Many
rare botanical specimens are available for study by
students and scientists at the Garden.
United States Claims Court. See UNITED STATES COI::RT
OF FEDERAL CLAIMS.
United Stales Coast Guard. A military service and
armed-forces branch that enforces the federal laws
applicable to waters subject to U.S. jurisdiction, admin
isters laws and promulgates regulations for the safety
of lives and property on waters under U.S. jurisdic
tion, carries out maritime rescue operations, performs
oceanographic research, and at times serves as a spe
cialized branch of the Navy. The Coast Guard was
established in 1915. 14 USCA 1. It has been part ofthe
U.S. Department ofthe Treasury and the U.S. Depart
ment of Transportation. Today it is part of the U.S.
Department ofHomeland Security during peacetime,
and the U.S. Department ofDefense during wartime. -
Abbr. USCG. [Cases: Armed Services C=:=>4.]
United States Coast Guard Academy. An institution of
higher learning responsible for educating and training
commissioned officers for service in the United States
Coast Guard. The academy began in 1876 as the
School of Instruction of the Revenue Cutter Service
near New Bedford, Massachusetts. In 1915, the academy
acquired its current name and, in 1932, moved to New
London, Connecticut Abbr. USCGA. [Cases: Armed
Services (;~-:> 16.]
United States Code. A multivolume published codifica
tion offederal statutory law. Abbr. U.S.c.; USc.
United States Code Annotated. A multivolume publi
cation ofthe complete text of the United States Code
with historical notes, cross-references, and casenotes
offederal and state decisions construing specific Code
sections. - Abbr. USCA.
United States Commissioner. See COMMISSIONER.
United States Commission on Civil Rights. The agency
that compiles information about discrimination based
on race, color, religion, sex, age, disability, or national
origin, and about the denial ofequal protection ofthe
laws in voting, education, employment, and housing.
The agency makes findings and recommendations to
Congress but has no enforcement power. It was estab
lished by the Civil Rights Act of 1957. -Abbr. CCR.
United States Copyright Office. A branch ofthe Library
ofCongress that is responsible for implementing federal
copyright laws . In addition to processing applications
for copyrights, the U.S. Copyright Office stores depos
ited copyrighted materials and issues opinions (by
request) on questions ofcopyright protection. Materials
deposited with this agency are not automatically added
to the Library of Congress collection; a separate and
direct submission to the Library may be required. The
Office also administers various licensing provisions of
the statute, including collecting and distributing royal
ties. [Cases: Copyrights and Intellectual PropertyC-~
50.30.]
United States court. See federal court under COURT.
United States Court of Appeals. A federal appel
late court having jurisdiction to hear cases in one of
the 13 judicial circuits of the United States (the First
Circuit through the Eleventh Circuit, plus the District
of Columbia Circuit and the Federal Circuit). -Also
termed circuit court. [Cases: Federal Courts C=>521.]
United States Court ofAppeals for the Armed Forces.
The primary civilian appellate tribunal responsible
for reviewing court-martial convictions from all the
military services. 10 USCA 941-950. Formerly
also termed Court ofMilitary Appeals. [Cases: Military
Justice
United States Court ofAppeals for the Federal Circuit.
An intermediate-level appellate court with jurisdic
tion to hear appeals in patent cases, various actions
against the United States to recover damages, cases
from the US. Court of Federal Claims, the U.S. Court
ofInternational Trade, the U.S. Court of Appeals for
Veterans Claims, the Merit Systems Protection Board,
and some administrative agencies. _ 'The Court origi
nated in the 1982 merger ofthe Court of Customs and
Patent Appeals and the U.S. Court of Claims (although
the trial jurisdiction of the Court of Claims was given
to a new U.S. Claims Court). Among the purposes ofits
creation were ending forum-shopping in patent suits,
settling differences in patent-law doctrines among the
circuits, and allowing a Single forum to develop the
expertise needed to rule on complex technological
questions that arise in patent suits. -Abbr. CAFC,
Fed. Cir. -Often shortened to Federal Circuit. [Cases:
Federal Courts C:--:>521.]
United States Court of Appeals for Veterans Claims.
An Article I federal appellate court that has exclusive
jurisdiction to review decisions of the Board ofVeterans
Appeals. -The Court was created in 1988 as the United
States Court of Veterans Appeals; its name was changed
in 1998. Its seven judges are appointed by the Presi
dent and confirmed by the Senate; they serve IS-year
terms. Appeals from its decisions are to the U.S. Court
ofAppeals for the Federal Circuit. 38 USCA 7251
et seq. Also termed United States Court ofVeterans
Appeals. [Cases: Armed Services C=> IS4.J
United States Court of Federal Claims. A speCialized
federal court created under Article I of the Constitu
tion in 1982 (with the name United States Claims Court)
as the successor to the Court of Claims, and |
itu
tion in 1982 (with the name United States Claims Court)
as the successor to the Court of Claims, and renamed
in 1992 as the United States Court of Federal Claims.
-It has original, nationwide jurisdiction to render a
money judgment on any claim against the United States
founded on the Constitution, a federal statute, a federal
regulation, an express or implied-in-fact contract with
the United States, or any other claim for damages not
sounding in tort. -Abbr. Cl. Ct.; (formerly) Ct. Cl.
Also termed Court ofClaims. [Cases: Federal Courts
C=>1071.] United States Court of International Trade. A court
with jurisdiction over any civil action against the
United States arising from federal laws governing
import transactions or the eligibility ofworkers, firms,
and communities for adjustment assistance under
the Trade Act of 1974 (19'USCA 2101-2495). _ Its
exclusive jurisdiction also includes actions to recover
customs duties, to recover on a customs bond, and to
impose certain civil penalties for fraud or negligence.
See 28 USCA 1581-1584. -Abbr. USCIT; CIT.
Also termed International Trade Court; Court ofInter
national Trade; (formerly) U.S. Customs Court.
United States Court ofVeterans Appeals. See UNITED
STATES COURT OF APPEALS FOR VETERANS CLAIMS.
United States currency. See CURRENCY.
United States Customs Court. A court that formerly
heard cases involving customs and duties. -Abolished
in 1980, its responsibilities have been taken over by the
United States Court ofInternational Trade. See UNITED
STATES COURT OF INTERNATIONAL TRADE.
United States Customs Service. An agency in the U.S.
Department of Homeland Security responsible for col
lecting import duties on goods, wares, and merchan
dise, and for enforcing customs and related laws. -The
Customs Service was created in 1863. 12 Stat. 665. It
was transferred from the Department of the Treasury
in 2003. -Also termed Bureau ofCustoms. [Cases:
Customs Duties C=>53-60.]
United States District Attorney. See UNITED STATES
ATTORNEY.
United States District Court. A federal trial court having
jurisdiction to hear civil and criminal cases within
its judicial district. The United States is divided
into nearly 100 federal judicial districts. Each state
has at least one judicial district. Also, the District of
Columbia, Puerto Rico, Guam, the Virgin Islands, and
the Northern Mariana Islands each have one district.
Abbr. U.S.D.C. [Cases: Federal Courts C=>971, 973.]
United States Fish and Wildlife Service. A unit in
the U.S. Department of the Interior responsible for
managing more than 93 million acres ofland and water
consisting of more than 500 national wildlife refuges
and thousands ofsmall wetlands. _ Italso administers
or enforces laws relating to migratory birds, endan
gered species, certain marine mammals, and sports
fisheries. -Abbr. FWS; USFWS. [Cases: Environmen
tal LawC=>525; Fish C=>11; GameC=>3.5.]
United States Foreign Intelligence Surveillance Court.
An ll-judge court that hears requests from the Attorney
General for surveillance warrants under the Foreign
Intelligence Surveillance Act. _ The court's proceed
ings and records are normally closed to the public. Its
rulings may be reviewed by the Foreign Intelligence
Court of Review. -Abbr. FISC. [Cases: War and
National Emergency <:r'='32.]
United States Foreign Intelligence Surveillance Court
of Review. A panel comprising three federal judges
appointed by the Chief Justice to review decisions of
1675
the United States Intelligence Surveillance Court.
The Court was established in 1978 by the Foreign Intel
ligence Surveillance Act. [Cases: War and National
Emergency C=:)32.j
United States Foreign Service. A division of the State
Department responsible for maintaining diplomatic
and consular offices and personnel in foreign coun
tries. -Often shortened to Foreign Service. [Cases:
Ambassadors and Consuls
United States Geological Survey. A unit in the U.S.
Department of the Interior responsible for prepar
ing and publishing maps, technical reports, and fact
sheets, and for compiling information about energy
and mineral resources and the use and quality of the
nation's water resources. Abbr. USGS.
United States Institute ofPeace. An independent federal
institution created to develop and disseminate knowl
edge about international peace and conflict resolution.
The Institute was established in 1984.
United States International Trade Commission. An
independent federal agency that compiles information
on international trade and tariffs; reports its findings
and recommendations to the President, the U.S. Trade
Representative, and Congressional Committees;
and conducts investigations into international-trade
relief. -Abbr. USITC. [Cases: Customs Duties
21.5,72.]
United States Magistrate Judge. A federal judicial officer
who hears civil and criminal pretrial matters and who
may conduct civil trials or criminal misdemeanor
trials. 28 USCA 631-639. -Magistrate judges are
appointed to renewable eight -year terms under Article I
of the U. S. Constitution. -Also termed federal magis
trate; (before 1990) United States Magistrate;parajudge.
[Cases: United States Magistrates C=11, 12.]
United States Marine Corps. The military service within
, the United States Navy whose forces are trained for
land, sea, and air combat. -The United States Marine
Corps is a separate service within the United States
Navy under the authority of the U.S. Department of the
Navy. -Abbr. USMC. [Cases: Armed Services (;::::::>4.]
United States Marshal. See MARSHAL.
United States Marshals Service. The unit in the U.S.
Department of Justice responsible for protecting
federal courts and ensuring effective operation of the
judicial system . U.S. marshals make arrests, serve
court papers, and enforce court orders. -Abbr. USMS.
[Cases: United States Marshals <"-~28, 29.J
United States Merchant Marine Academy. A military
affiliated institution of higher learning responsible
for educating and training commissioned officers for
service on civilian merchant vessels or in the armed
forces. The academy was founded in 1938, and since
1943 has been located at King's Point, New York.
Abbr. USMMA. [Cases: Armed Services
United States Military Academy. An institution of
higher learning in the U.S. Department of the Army United States Postal Service
responsible for educating and training officers for
service in the U.S. Army. Founded in 1802, the
academy is located on the Hudson River in West Point,
New York. -Abbr. USMA. -Often termed West
Point. [Cases: Armed Services C--=' 16.]
United States Mint. A unit in the U.S. Department ofthe
Treasury responsible for producing coins to be used in
trade and commerce, numismatic coins, gold and silver
coins, and national medals. _ It also operates the gold
storage facility at Fort Knox, Kentucky. Jt was formerly
termed the Bureau of the Mint. [Cases: United States
C='34.]
United States Naval Academy. An institution ofhigher
learning in the United States Department of the Navy
responsible for educating and training commissioned
officers for service in the United States Navy and the
United States Marine Corps . Founded in 1845, the
academy is located in Annapolis, Maryland. -Abbe.
USNA. -Often also termed (informally) Annapolis .
[Cases: Armed Services (;::::::> 16.]
United States Navy. The naval-operations branch ofthe
United States armed forces, including naval aviation
and the United States Marine Corps, and the United
States Coast Guard when operating as a service in the
Navy. -1he United States Navy is under the author
ity of the U.S. Department of the Navy. -Abbr. USN.
[Cases: Armed Services
United States of America. A federal republic formed
after the War of Independence and made up of 48
conterminous states, plus the state of Alaska and the
District of Columbia in North America, plus the state
of Hawaii in the Pacific. -Abbr. USA; U.S. [Cases:
United States 1.]
United States officer. See OFFICER (1).
United States Patent and Trademark Office. The
Department of Commerce agency that examines patent
and trademark applications, issues patents, registers
trademarks, and furnishes patent and trademark
information and services to the public. Abbr. PTO;
USPTO. Often shortened to Patent Office; Trade
mark Office.
United States person. A U.S. resident or national
(except a national living outside the United States who
is employed by someone other than a United States
person), a domestic American concern, and any foreign
subSidiary or affiliate of a domestic concern with opera
tions controlled by the domestic concern . Under anti
boycott regulatory controls, no United States person
may participate in a secondary boycott or discrimina
tion against Jews and others by members of the League
of Arab States. 50 USCA app. 2415(2).
United States Postal Service. An independent establish
ment in the executive branch responsible for operat
ing post offices, safeguarding and delivering mail, and
enforcing the laws affecting the integrity and security
of the mail. -The Postal Reorganization Act of 1970
replaced the cabinet-level Post Office Department
with the United States Postal Service. 39 USCA 101 et
seq. Abbr. USPS. [Cases: Postal Service C~1-5.]
United States Reports. The official printed record ofUS.
Supreme Court cases. In a citation, it is abbreviated as
U.S., as in 388 U.S. 14 (1967). [Cases: Reports
United States Secret Service. A law-enforcement agency
in the US. Department ofHomeland Security respon
sible for providing security for the President, Vice Pres
ident, certain other government officials, and visiting
foreign diplomats, and for protecting US. currency by
enforcing the laws relating to counterfeiting, forgery,
and credit-card fraud. The Service was transferred
from the Department ofthe Treasury in 2003. Often
shortened to Secret Service. [Cases: United States (,.~
34.]
United States Sentencing Commission. An independent
commission in the judicial branch of the federal gov
ernment responsible for setting and regulating gUide
lines for criminal sentencing in federal courts and for
issuing policy statements about their application . The
President appoints its members with the advice and
consent ofthe Senate. It was created under the Sentenc
ing Reform Act 1984. 28 USCA 991.
United States Sentencing Guidelines. A detailed set
of instructions for judges to determine appropriate
sentences for federal crimes. -Abbr. USSG. Also
termedfederal sentencing guidelines. (Cases: Sentencing
and Punishment C=65L]
United States Supreme Court. See SUPREME COURT OF
THE UNITED STATES.
United States Tax Court. See TAX COURT, U.S.
United States Trade and Development Agency. An
independent federal agency in the executive branch
responsible for promoting trade between the United
States and developing countries to create jobs in the
United States and to promote economic progress in
poorer nations. It was established in 1961 as the
Trade and Development Program and was renamed
in 1992. -Abbr. TDA; USTDA.
United States Trade Representative. The top U.S. trade
negotiator and adviser to the President on foreign
trade policy. The Cabinet-level office is responsible
for making annual reports on nations that do not act
diligently to stop piracy of copyrighted material. The
Trade Representative holds the rank ofambassador.
Abbr. USTR. See OFFICE OF THE UNITED STATES TRADE
REPRESENTATIVE; SPECIAL 30l.
United States trustee. A federal official who is appointed
by the Attorney General to perform administrative
tasks in the bankruptcy process, such as appointing
bankruptcy trustees in Chapter 7 and Chapter 11 cases.
See TRUSTEE (2). [Cases: BankruptcyC:::o300l-3011.]
unities doctrine of marriage. See LEGAL-UNITIES
DOCTRINE.
Uniting and Strengthening America by Provid
ing Appropriate Tools Required to Intercept and
Obstrnct Terrorism. See USA PATRIOT ACT. unit-investment trust. See TRUST.
unitization. Oil & gas. 1he collection ofproducing wells
over a reservoir for joint operations such as enhanced
recovery techniques . Unitization is usu. carried out
after primary production has begun to fall off substan
tially, in order to permit efficient secondary-recovery
operations. It is also done to comply with well-spacing
requirements established by state law or regulation.
Pooling, by contrast, is usu. associated with drilling
a single well and operating that well by primary-pro
duction techniques. Cf. POOLING.[Cases: Mines and
Minerals C:::o92.78.] unitize (yoo-n;J-tIz), vb.
compulsory unitization. Unitization done by order ofa
regulatory agency. Also termedforced unitization.
[Cases: Mines and Minerals C:::o92.78.)
forced unitization. See compulsory unitization.
voluntary unitization. Unitization arranged byagree
ment ofthe owners ofmineral interests. [Cases: Mines
and Minerals C:::o78.1(7), 79.1(5).]
unitization clause. Oil & gas. A provision in an oil-and
gas lease granting the lessee the right to unitize the
leased premises, generally for enhanced-recovery oper
ations.[Cases: Mines and Minerals C:::o78.1(7).]
unit-ownership act. A state law governing condominium
ownership. [C |
o78.1(7).]
unit-ownership act. A state law governing condominium
ownership. [Cases: Condominium <>~~'2.1
unit price. See PRICE.
unit pricing. A system in which contract items are priced
per unit rather than on the basis ofa flat contract price.
[Cases: Contracts C:::o231(1); Sales C:::o77(l).j
unit rule. 1. Securities. A method ofvaluing securities by
multiplying the total number ofshares held by the sale
price of one share sold on a licensed stock exchange,
ignoring all other facts about value. 2. Parliamentary
law. A convention's rule that lets a delegation's majority
cast the entire delegation's votes. Cf. instructed delegate
under DELEGATE.
unitrust. See TRUST.
units-of-output depreciation method. See DEPRECIA
TION METHOD.
units-of-production method. Tax. An account
ing method in which the depreciation provision is
computed at a fixed rate per product unit, based on an
estimate ofthe total number of units that the property
will produce during its service life. -This method is
used in the oil-and-gas industry when the total number
ofunits ofproduction (Le., barrels in a reserve) can be
accurately estimated.
unity, n. (13c) 1. The fact or condition of being one in
number; oneness. 2. Jointness in interest, possession,
time, or title. At common law, all four ofthese unities
were required for the creation of a joint tenancy. See
joint tenancy under TENANCY. [Cases: Joint Tenancy
<::=1, 3.] -unitary, adj.
unity ofinterest. (18c) The requirement that an joint
tenants' interests must be identical in nature, extent,
1677 universitas juris
and duration. -Also termed interest unity. [Cases:
Joint Tenancy C:)1, 3.]
unity ofpossession. (l8c) The requirement that each
joint tenant must be entitled to possession of the
whole property. Also termed possession unity.
[Cases: Joint Tenancy 1,3.J
unity of time. (I8c) The requirement that all joint
tenants' interests must vest at the same time. Also
termed time unity. [Cases: Joint Tenancy 3.J
unity of title. (18c) The requirement that all joint
tenants must acquire their interests under the same
instrument. -Also termed title unity. [Cases: Joint
Tenancy 3.J
unity of art. Copyright. The inseparable nature of utili
tarian and functional aspects of applied art. France
uses the unity-of-art approach to applied art and
industrial design, but stops short ofprotecting strictly
utilitarian design under copyright. -Also termed
cumulative approach. Cf. DUALITY OF ART.
unity of seisin (see-zin). (1800) The merging of seisin in
one person, brought about when the person becomes
seised of a tract ofland on which he or she already has
an easement. [Cases: Easements (:::::>27.]
universal agency. See general agency under AGENCY
(1).
universal agent. See AGENT.
Universal Copyright Convention. A 1952 treaty binding
signatories to give citizens of other member nations
the same copyright protection that their own citizens
receive. 25 U.S.T. 1341, T.LA.S. No. 7868. Admin
istered by the United Nations Educational, Scientific,
and Cultural Organization, the Convention does not
apply between nations that are also signatories of the
Berne Convention.lhe United States signed the treaty
in 1955. Abbr. L'CC. [Cases: Copyrights and Intel
lectual Property (:::::> 34.]
Universal Declaration of Human Rights. An interna
tional bill of rights proclaimed by the United Nations
in December 1948, being that body's first general enu
meration ofhuman rights and fundamental freedoms .
The preamble states that "recognition of the inherent
dignity and of the equal and inalienable rights of all
members of the human family is the foundation of
freedom, justice and peace in the world." The Declara
tion contains a lengthy list of rights and fundamen
tal freedoms. For the full text of the Declaration, see
Appendix C. [Cases: International Law 1O.45(1).J
"The Universal Declaration is the first comprehensive
human rights instrument to be proclaimed by a universal
international organization. Because of its moral status and
the legal and political importance it has acquired over the
years, the Declaration ranks with the Magna Carta, the
French Declaration of the Rights of Man and the American
Declaration of Independence as a milestone in mankind's
struggle for freedom and human dignity. Its debt to all
these great historical documents is unmistakable." Thomas
Buergenthal et aI., International Human Rights in a Nutshell
35-36 (3d ed. 2002).
universal defense. See real defense under DEFENSE (4). universal inheritance. See INHERITANCE.
universal-inheritance rule. Wills & estates. A doctrine
holding that an intestate estate escheats to the state
only if the decedent leaves no surviving relatives, no
matter how distant. Through the first half ofthe 20th
century, this rule was broadly followed in American
jurisdictions. The Uniform Probate Code abandons
the universal-inheritance rule and proVides that if no
member ofthe third or a nearer parentela survives the
decedent, the intestate estate escheats to the state.
Also termed rule ofuniversal inheritance. See PAREN
TELA. Cf.laughing heir under HEIR; GRADUAL METHOD.
[Cases: Escheat ~';:)3.]
universalist movement. Copyright. A 19th-century
campaign in Europe to recognize a worldwide copy
right law based on an author's moral rights.
"The universalist movement evolved both in and out
of France, starting with an international Congress of
Authors and Artists in Brussels in 1858. attended by del
egates of literary societies and universities, as well as by
authors, artists, journalists, librarians, and lawyers. The
movement gained momentum at an 1878 international
literary congress in Paris presided over by Victor Hugo."
Paul Goldstein, International Copyright: Principles, Law,
and Practice 19 (2001).
! universality. l. Equality of applicability. 2. Copyright. A
nation's policy or practice of protecting artists' rights
in their creations irrespective of the creator's nation
ality or where the work was created . Universality,
the most generous approach to international intellec
tual-property rights, is generally favored in countries
that treat copyright as a moral right. Cf. RECIPROCITY;
NATIONAL TREATMENT. [Cases: Copyrights and Intel
lectual Property (:::::>, 34.]
universal legacy. See LEGACY.
universal legatee. See LEGATEE.
universal life insurance. See LIFE INSURANCE.
universal malice. See MALICE.
universal partnership. See PARTNERSHIP.
universal succession. See SUCCESSION (2).
universal successor. See SUCCESSOR.
universal synod. See general synod under SYNOD.
universal title. See TITLE (2).
universitas (yoo-ni-v;u-sd-tas), n. [Latin] Roman law.
A union of persons or things considered as a whole; a
corporation.
universitas facti (yoo-ni-v;U-S;Has fak-tI). [Law Latin] A
plurality ofcorporeal things ofthe same kind regarded
as a whole, such as a herd of cattle.
universitas juris (yoo-ni-var-sd-tas joor-is). [Latin]
Roman & civil law. The whole of a person's rights and
liabilities; the totality of a person's legal relations.
"A universitas juris is a collection of rights and duties united
by the single circumstance of their having belonged at one
time to some one person." Henry S. Maine, Ancient Law
148 (17th ed. 1901).
1678 universitas personarum
universitas personarum (yoo-ni-v<lr-sa-tas par-s<>-nay
r<>m). [LatinI Roman & civil law. A group ofpeople that
are legally considered an entity, such as a college or
corporation. PI. universitates personarum.
universitas rerum (yoo-ni-v<lr-s<>-tas reer-<>m). [Latin]
Roman & civil law. A whole collection of things; a
variety ofindividual things that are together regarded
by the law as a whole. See JUS RERUM.
"In the time ofJustinian the universitas rerum, or universitas
iuris (both expressions are used) is a somewhat abstract
conception: it means the sum or whole of a man's legal
position so far as it concerns the ius rerum. The conception
is important in law only on the occasions, of which death is
by far the most important, on which the universitas passes
from one to another. ... The expression universitas rerum
is also used in another sense, to denote any collection of
objects considered as a whole." w.w. Buckland, A Manual
of Roman Private Law 172 (2d ed. 1953).
universus (yoo-ni-v<lr-sas). [Latin] The whole; all
together.
unjudicial, adj. (l6c) Not becoming ofor appropriate to
a judge. [Cases; Judges (;::J 11.]
unjust, adj. (14c) Contrary to justice; not just.
unjust enrichment. (1897) 1. The retention ofa benefit
conferred by another, without offering compensation,
in circumstances where compensation is reasonably
expected. [Cases: Implied and Constructive Contracts
Cr-;)3.] 2. A benefit obtained from another, not intended
as a gift and not legally justifiable, for which the benefi
ciary must make restitution or recompense. 3. The area
of law dealing with unjustifiable benefits of this kind.
unlaw, n. 1. A violation oflaw; an illegality. 2. Lawless
ness.
"But lawlessness is often a superficial phenomenon and
whenever the duke was strong enough to keep the peace
then law revived. We hear the same of England: times of
'unlaw' alternate with times of law." 1 Frederick Pollock &
Frederic W. Maitland, The History ofEnglish Law Before the
Time of Edward 168-69 (2d ed. 1898).
3. Scots law. An illegal act. 4. Scots law. A fine; a
penalty.
unlawful, adj. (l4c) 1. Not authorized by law; illegal <in
some cities, jaywalking is unlawful>. 2. Criminally
punishable <unlawful entry>. 3. Involving moral tur
pitude <the preacher spoke to the congregation about
the unlawful activities ofgambling and drinking>.
unlawfully, adv.
unlawful act. (I6c) Conduct that is not authorized by
law; a violation ofa civil or criminal law.
unlawful arrest. See ARREST.
unlawful assembly. See ASSEMBLY.
unlawful condition. See CONDITION (2).
unlawful detainer. See DETAINER.
unlawful-detainer proceeding. (1879) An action to
return a wrongfully held tenancy (as one held by a
tenant after the lease has expired) to its owner. See
unlawful detainer under DETAINER. [Cases: Landlord
and Tenant (;::;:287.1.J unlawful entry. See ENTRY (1).
unlawful force. See FORCE.
unlawful interest. See USURY.
unlawful interference with contractual relations. See
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELA
TIONS.
unlawful picketing. See PICKETING.
unlawful sexual conduct with a minor. See IMPAIRING
THE MORALS OF A MINOR.
unlawful sexual intercourse. See RAPE.
"unless" lease. See LEASE.
unlimited, adj. Without restriction or limitation.
unliquidated, adj. (ISc) Not previously specified or
determined <unliquidated damages>.
unliquidated claim. See CLAIM (3).
unliquidated damages. See DAMAGES.
unliquidated debt. See DEBT.
unlisted security. See SECURITY.
unlisted stock. See unlisted security under SECURITY.
unlivery. Maritime law. The unloading of cargo at its
intended destination.
unmarketable title. See TITLE (2).
unmarried, adj. Not married; single.
unmerchantable title. See unmarketable title under
TITLE (2).
unnatural offense. See SODOMY.
unnatural will. See WILL.
unnavigable, adj. See INNAVIGABLE.
unnecessary, adj. Not required under the circumstances;
not necessary.
unnecessary hardship. See HARDSHIP (4).
uno actu (yoo-noh ak-t[yJoo). [LatinJ In a single act; by
one and the same act.
unoccupied, adj. 1. (Of a building) not occupied; vacant.
2. (Of a person) not busy; esp., unemployed.
unofficious payment. See PAYMENT.
unofficious will. See inofficious testament under TES
TAMENT.
uno flatu (yoo-noh f1ay-t[y] 00). [Latinl In one breath.
unpaid dividend. See DIVIDEND.
unpatentable over art. Patents. (Of an invention) ineli
gible for patent protection because of obviousness or
the lack ofnovelty. [Cases: Patents (;::J 16(2).)
unperfected security interest. See SECURITY INTEREST.
unprecedented (an-pres-;:l-den-tid), adj. Never before
known; without any earlier example.
unpremeditation. The lack of premeditation; the absence
of planning.
unprofessional conduct. See CONDUCT.
unpublished opinion. See OPINION (1).
1679
unqualified indors |
CONDUCT.
unpublished opinion. See OPINION (1).
1679
unqualified indorsement. See INDORSEMENT.
unqualified opinion. See OPINION (2).
unqualified ownership. See OWNERSHIP.
unques (an[gJ-kweez), adv. [Law French] Ever; always.
unques prist (an[g]-kweez prist). [Law French] Always
ready. This is another form of tout temps prist. See
TOUT TEMPS PRIST ET ENCORE PRIST.
unrealized loss. See paper loss under LOSS.
unrealized profit. See paper profit under PROFIT (1).
unrealized receivable. See RECEIVABLE.
unreasonable, adj. (l4c) 1. Not guided by reason; irratio
nal or capricious. 2. Not supported by a valid exception
to the warrant requirement <unreasonable search and
seizure>. [Cases: Searches and Seizures (;:>24.]
unreasonable compensation. See COMPENSATION.
unreasonable decision. See DECISION.
unreasonable deviation. See DEVIATION.
unreasonable refusal to submit to operation. Workers'
compensation. An injured employee's refusal to submit
to a necessary surgical procedure . This refusal is
grounds for terminating the employee's workers'
compensation benefits. [Cases; Workers' Compensa
tion (''::>947,2003.]
unreasonable restraint of trade. See RESTRAINT OF
TRADE.
unreasonable restraint on alienation. See RESTRAINT
ON ALIENATION (1).
unreasonable search. See SEARCH.
unreasonably dangerous conduct. See CONDUCT.
unrebuttable, adj. Not rebuttable <an unrebuttable pre
sumption>.
unrecorded, adj. (l6c) Not recorded; esp., not filed in the
public record <unrecorded deed>.
unregistered security. See restricted security under
SECURITY.
unrelated-business income. See INCOME.
unrelated-business-income tax. See TAX.
unrelated-business taxable income. See unrelated-busi
ness income under INCOME.
unrelated offense. See OFFENSE (1).
unresponsive answer. See ANSWER (2).
unrestricted indorsement. See unrestrictive indorsement
under INDORSEMENT.
unrestrictive indorsement. See INDORSEMENT.
unrestrictive interpretation. See INTERPRETATION.
unreviewable, adj. (1877) Not subject to legal or judicial
review <the claim is unreviewable on appeal>.
unsafe, adj. (Of a verdict or judgment) likely to be over
turned on appeal because of a defect.
unsatisfied-judgment fund. See FUND (1). unwritten will
unseated, adj. (Of land) vacant and neither developed
nor cultivated.
unseaworthy, adj. (Of a vessel) unable to withstand the
perils of an ordinary voyage. Cf. SEAWORTHY. [Cases:
Seamen Shipping (;:>80.]
unsecured bail bond. See BOND (2).
unsecured bond. See DEBENTURE (3).
unsecured claim. See CLAIM (5).
unsecured creditor. See CREDITOR.
unsecured debt. See DEBT.
unsecured note. See NOTE (1).
unskilled work. See WORK (1).
unsolemn war. See WAR (1).
unsolemn will. See WILL.
unsolicited commercial e-mail. See SPAM. -Abbr.
DeE.
unsound, adj. (14c) 1. Not healthy; esp., not mentally
well <unsound mind>. [Cases: Mental Health 2.
Not firmly made; impaired <unsound foundation>. 3.
Not valid or well founded <unsound argument>.
unspeakable crime. See SODOMY.
unsworn, adj. (16c) Not sworn <an unsworn state
ment>.
! unsworn declaration under penalty of perjury. See
DECLARATION (8).
i untenantable (;m-ten-dn-td-bdl), adj. (l7c) Not capable
of being occupied or lived in; not fit for occupancy <the
city closed the untenantable housing project>. [Cases:
Landlord and Tenant (;:> 125(1).]
! unthrift. Archaic. A prodigal; a spendthrift.
untimely, adj. (l3c) Not timely <an untimely answer>; at
an inappropriate time, either too soon or too late.
untrue, adj.!. (Of something said) not correct; inaccu
rate. 2. (Of a person) not faithful or true (to a standard
or belief).
unum quid (yoo-ndm kwid). [Latin] Hist. One thing .
The phrase implied that several items (such as movables)
were, for whatever purpose, considered as one (e.g., a
set of glasses).
unus nullus rule (yoo-nds Dal-ds). [Latin "one is nobody"
+ rule] Civil law. The evidentiary principle that the
testimony of only one witness is given no weight. Cf.
HALF-PROOF (1).
unusual charge. See special charge under CHARGE.
unvalued policy. See INSURANCE POLICY.
I unworthy, adj. Civil law. (Of an heir) not entitled to
inherit from a person because of a failure in a duty to
that person.
i unwritten constitution. See CONSTITUTION.
unwritten evidence. See EVIDENCE.
unwritten law. See LAW.
I unwritten will. See nuncupative will under WILL.
UPA 1680
UPA. abbr. UNIFORM PARTNERSHIP ACT.
UPAA. abbr. UNIFORM PREMARITAL AGREEMENT ACT.
up before. Informal. In the presence of (a particular court
or judge) <for the bail hearing you'll come up before
Judge Franklin>.
UPC. abbr. UNIFORM PROBATE CODE.
up-front performance bond. See PERFORMANCE
BOND.
UPIA. abbr. UNIFORM PRUDENT INVESTOR ACT.
UPL. abbr. Unauthorized practice oflaw <the state bar's
UPL committee>. See unauthorized practice oflaw
under PRACTICE OF LAW. [Cases: Attorney and Client
Upper Bench. See bancus superior under BANCUS.
upper chamber. See CHAMBER.
upper court. See court above under COURT.
upper estate. See dominant estate under ESTATE (4).
upper management. See top management under MAN
AGEMENT.
UPREIT (ap-rrt). See umbrella-partnership real-estate
investment trust under REAL-ESTATE INVESTMENT
TRUST.
upset bid. See BID (1).
upset price. See PRICE.
upside. Securities.!. An upward movement in stock
prices. 2. The potential of an upward movement in
stock prices. Cf. DOWNSIDE.
upstream guaranty. See GUARANTY.
upstreaming. A parent corporation's use of a subsid
iary's cash flow or assets for purposes unrelated to the
subSidiary.
upstream merger. See MERGER.
UPUFA. abbr. UNIFORM PUTATIVE AND UNKNOWN
FATHERS ACT.
upward departure. See DEPARTURE.
u.r. abbr. UTI ROGAS.
urban, adj. Ofor relating to a city or town; not rural.
urban-fear syndrome. See URBAN-SURVIVAL SYN
DROME.
Urban Mass Transit Administration. A unit in the u.s.
Department of Transportation responsible for making
grants to help states, regional and local governmen
tal bodies, and public agencies to acquire or improve
capital equipment and facilities for urban mass-transit
systems; for proViding technical assistance and funds
for demonstration projects; for making educational
grants for urban mass-transit research and training;
and for making training grants to mass-transit systems
for training. The agency also awards grants for transit
operations in nonurban areas. -Abbr. UMTA. [Cases:
United States C=:>82(2).]
urban planning. See LAND-USE PLANNING.
urban prefect, n. Roman law. See PRAEFECTUS URBI. urban-psychosis defense. See URBAN-SURVIVAL
SYNDROME.
urban renewal. (1954) The process ofredeveloping urban
areas by demolishing or repairing existing structures
or by building new facilities on areas that have been
cleared in accordance with an overall plan. lCases:
Municipal Corporations C-::>267.]
urban servitude. See SERVITUDE (2).
urban-survival syndrome. A self-defense theory holding
that a defendant who uses unreasonable force may be
acquitted ifthe defendant lives in a dangerous environ
mentthat heightens the defendant's fears ofinjury to life
or limb so much that the force used seemed reasonable
and necessary to the defendant. -Also termed urban
survival defense; urban-fear syndrome; urban-psychosis
defense; inner-city post-traumatic-stress defense.
urbs (;lrbz), n. [Latin] Roman law. 1. A city or town. 2.
lhe city ofRome.
ure (yoor). [fro Old French oeuvre) Custom; practice;
exercise.
URESA (y;l-ree-s,,). abbr. UNIFORM RECIPROCAL
ENFORCEMENT OF SUPPORT ACT.
urgent deficiency bill. See deficiency bill under BILL
(3).
Urheberrecht (oo-re-bair-rekt), n. [German] AUTHOR'S
RIGHT.
Uruguay Round. The 1994 negotiations of the General
Agreement on Tariffs and Trade. The negotiations
resulted in the TRIPs agreement that established the
World Trade Organization and made member nations'
patent laws more uniform. See TRIPS. [Cases: Customs
Duties 10.]
usage. (l3c) 1. A well-known, customary, and uniform
practice, usu. in a specific profession or business. See
CUSTOM Cf. CONVENTION (6). [Cases: Customs and
Usages
"A 'usage' is merely a customary or habitual practice; a
'convention' is a practice that is established by general
tacit consent. 'Usage' denotes something that people are
accustomed to do; 'convention' indicates that they are
accustomed to do it because of a general agreement that
it is the proper thing to do." Herbert W. Horwill. The Usages
of the American Constitution 22 (1925).
"Although rules of law are often founded on usage, usage
is not in itself a legal rule but merely habit or practice in
fact. A particular usage may be more or less widespread.
It may prevail throughout an area, and the area may be
small or large - a city, a state or a larger region. A usage
may prevail among all people in the area, or only in a
1681
special trade or other group. Usages change over time,
and persons in close association often develop temporary
usages peculiar to themselves." Restatement (Second) of
Contracts 219 cmt. a (1979).
custom and usage. See CUSTOM AND USAGE.
general usage. (16c) A usage that prevails throughout
a country or particular trade or profession; a usage
that is not restricted to a local area. [Cases: Customs
and Usages
immemorial usage. (17c) A usage that has existed for a
very long time; longstanding custom. See TIME IMME-
MoRIAL. [Cases: Customs and Usages 1.]
local usage. (I8c) A practice or method regularly
observed in a particular place, sometimes considered
by a court in interpreting a document. UCC 1-205(2)
(3). See CUSTOM AND USAGE. [Cases: Customs and
Usages
trade usage. (1864) A practice or method of dealing
having such regular observance in a region, vocation,
or trade that it justifies an expectation that it will be
observed in a given transaction; a customary practice
or set of practices relied on by persons conversant
in, or connected with, a trade or business. -While a
course of performance or a course ofdealing can be
established by the parties' testimony, a trade usage
is usu. established by expert testimony. -Also
termed usage oftrade; course oftrade. Cf COURSE OF
DEALI:-IG; COURSE OF PERFORMANCE. [Cases: Customs
and Usages
'The existence and scope of a usage of trade are to be
determined as questions of fact. If a usage is embodied in
a written trade code or similar writing the interpretation of
the writing is to be determined by the court as a question
of law. Unless otherwise agreed, a usage of trade in the
vocation or trade in which the parties are engaged or a
usage of trade of which they know or have reason to know
gives meaning to or supplements or qualifies their agree
ment." Restatement (Second) of Contracts 222 (l979).
usance (yoo-z;mts). The time allowed for the payment
of a foreign bill of exchange, sometimes set by custom
but now usu. by law.
usance credit. See time letter ofcredit under LETTER OP
CREDIT.
use (yoos), n, (bef. 12c) 1. The application or employ
ment of something; esp., a long-continued possession
and employment of a thing for the purpose for which
it is adapted, as distinguished from a possession and
employment that is merely temporary or occasional
<the neighbors complained to the city about the owner's
use of the building as a dance club>.
accessory use. Zoning. A use that is dependent on or
pertains to a main use. [Cases: Zoning and Planning
~301-308.]
adverse use. A use without license or permission. Cf.
ADVERSE POSSESSION.
beneficial use. Property. The right to use property and
all that makes that property desirable or habitable,
such as light, air, and access, even if someone else
owns the legal title to the property.
collateral use. Intellectual property, The legal use of
a trademark by someone other than the trademark
owner, whereby |
al use. Intellectual property, The legal use of
a trademark by someone other than the trademark
owner, whereby the other party must clearly identify
itself, the use of the trademark, and the absence of
affiliation with the trademark owner.
commercial use. A use that is connected with or
furthers an ongoing profit-making activity. Cf. non
commercial use.
conditional use. Zoning. A use of property subject to
special controls and conditions. _ A conditional use
is one that is suitable to a zoning district, but not nec
essarily to every location within that district. -Also
termed special exception, See SPECIAL EXCEPTION (2).
[Cases: Zoning and Planning C--=>382.J
conforming use. Zoning. The use of a structure or of the
land in conformity with the uses permitted under the
zoning classifications ofa particular area, such as the
use 1682
building of a single-family dwelling in a residential
zone. [Cases: Zoning and Planning <8=271.]
double use. Patents. An application of a known prin
ciple or process to a new use without leading to a new
result or product. [Cases: Patents
exclusive use. 1. Trademarks. 1he right to use a specific
mark without exception, and to prevent another from
using a confusingly similar mark. [Cases: Trademarks
C::;) 1182.] 2. Property. The right ofan adverse user to
a property, exercised independently of any similar
rights held by others; one of the elements of a pre
scriptive easement. See eSER. [Cases: Adverse Pos
session <r'-='36, 37; Easements <8=8(4).]
experimental use. Patents. I. The use or sale of an
invention by the inventor for experimental purposes.
2. A defense to liability for patent infringement when
the infringement took place only to satisfy curiosity
or to complete an experiment, rather than for profit.
[Cases: Patents <8=260.]
highest and best use. Real estate. In valuing property,
the use that will generate the most profit. -This
standard is used esp. to determine the fair market
value of property subject to eminent domain. -Often
shortened to best use. -Also termed most suitable
use. [Cases: Eminent Domain Taxation
2515.]
incidental use. Zoning. Land use that is dependent
on or affiliated with the land's primary use. [Cases:
Zoning and Planning <8= 301-308.]
most suitable use. See highest and best use.
noncommercial use. A use for private pleasure or
business purposes that non involving the generation
of income or bestowing a reward or other compensa
tion. Cf. commercial use.
nonconforming use. Zoning. Land use that is imper
missible under current zoning restrictions but that
is allowed because the use existed lawfully before the
restrictions took effect. [Cases: Zoning and Planning
C::)321-338.]
pious use. The designation and actual use of property
for recognized religious or charitable purposes. Cf.
superstitious use.
popular use. A person's imperfect right to enjoy public
land. - A popular use is not legally enforceable. It is
dependent on the government's will to allow access
to the land.
public use. 1. Property. The public's beneficial right to
use property or facilities subject to condemnation.
See CONDEMNATION (2). [Cases: Eminent Domain
<8= 12-42.] 2. Patents. Any use of or offer to use a
completed or operative invention in a nonsecret,
natural, and intended manner. - A patent is invalid
ifthe invention was in public use more than one year
before the patent's application date. [Cases: Patents
<8=75.]
'The term 'public use' is misleading, for any use from
which the public is not excluded, even though none comes, is held to be public. Similarly, an actual public use of a
machine, even though the invention feature be effectively
concealed from inspection, is held to be public. It makes
no difference whether the patent or other publication is
that of the inventor or someone else." Roger Sherman Hoar,
Patent Tactics and the Law48 (3d ed. 1950) (citing Gillman
v. Stem, 114 F.2d 28, 31 (2d Or. 1940)).
reasonable use. Use of one's property for an appro
priate purpose that does not unreasonably interfere
with another's use of property. See REASONABLE-USE
THEORY.
regular use. Insurance. A use that is usual, normal,
or customary, as opposed to an occasional, special,
or incidental use. _ This term often appears in
automobile-insurance policies in the definition of
a nonowned automobile -that is, an automobile
not owned by or furnished for the regular use of the
insured. Nonowned automobiles are excluded from
coverage under most liability policies. [Cases: Insur
ance <8= 2657.]
superstitious use. A designation or use ofproperty for
religious purposes not legally recognized or tolerated
(such as gifts either favoring an unrecognized religion
or supporting the saying of prayers for the dead). Cf.
pious use.
2. A habitual or common practice <drug use>. 3. A
purpose or end served <the tool had several uses>. 4.
A benefit or profit; esp., the right to take profits from
land owned and possessed by another; the equitable
ownership ofland to which another person holds the
legal title <cestui que use>. See CESTUI QUE eSE. use
(yooz), vb.
contingent use. (17c) A use that would be a contingent
remainder ifit had not been limited by way of use .
An example is a transfer "to A, to the use ofB for life,
with the remainder to the use of C's heirs." -Also
termedfuture use.
entire use. A use of property solely for the benefit of
a married woman. When used in the habendum
of a trust deed for the benefit of a married woman,
this phrase operates to keep her husband from taking
anything under the deed. -Also termed entire
benefit; sale use; sole and separate use.
executed use. Hist. A use resulting from combining
the equitable title and legal title of an estate, done to
comply with the Statute of Uses' mandate that the
holder ofan estate be vested with legal title to ensure
the holder's liability for feudal dues. See STATUTE OF
USES.
executory use. See springing use.
future use. See contingent use.
official use. Hist. A use imposing a duty on a person
holding legal title to an estate on behalf of another,
such as a requirement that a feoffee to uses sell the
estate and apportion the proceeds among several
beneficiaries. -The Statute of Uses eliminated this
type of use.
1683 USIP
permissive use. Hist. A passive use resorted to before
passage of the Statute of Uses in 1535 to avoid an
oppressive teudallaw (such as mortmain) by naming
one person as the legal owner of property while
allowing another to possess the property and enjoy
the benefits arising from it.
present use. Hist. A use that has an immediate exis
tence and is subject to the Statute ofUses.
resulting use. (18c) A use created by implication and
remaining with the grantor when the conveyance
lacks consideration.
secondary use. See shifting use.
shifting use. (18c) A use arising from the occurrence of
a certain event that terminates the preceding use. -In
the following example, C has a shifting use that arises
when D makes the specified payment: "to A for the
use ofB, but then to C when D pays $1,000 to E." This
is a type of conditional limitation. -Also termed sec
ondary use. See conditional limitation under LIMITA
TION. [Cases: Trusts (,-: 131; Wills <;:::~:::'625.J
sole and separate use. See entire use.
springing use. (17c) A use arising on the occurrence
ofa future event. _ In the following example, B has a
springing use that vests when B marries: "to A for the
use ofB when B marries." Also termed executory
use. [Cases: Trusts Wills <:=625.]
use-based license. See LICENSE.
use/derivative-use immunity. See use immunity under
IMMUNITY (3).
usee. See USE PLAINTIFF.
useful, adj. Patents. (Ofan invention) having a practical
application. [Cases: Patents (;:::46.]
"[M]ere curiosities of invention, which do not have any
intelligent purpose, are not useful in a patentable sense."
Roger Sherman Hoar, Patent Tactics and the Law 37 (3d
ed. 1950).
"When applied to a machine, 'useful' means that the
machine will accomplish its purpose practically when
applied in industry. The word is given a practical and
not a speculative meaning." 60 Am. Jur. 2d Patents 131
(1987).
useful-article doctrine. See APPLIED-ART DOCTRINE.
useful life. (1923) 1be estimated length of time that
depreciable property will generate income. _ Useful
life is used to calculate depreciation and amortization
deductions. -Also termed depreciable life. See DEPRE
CIATION METHOD.
use immunity. See IMMU},/ITY (3).
use in commerce. Trademarks. Actual use of a trade
mark in the advertising, marketing, promotion, sale, or
distribution ofgoods or services. -Use ofa trademark
in commerce is a prerequisite to trademark registra
tion. Regular use demonstrates that the trademark has
become associated with currently available goods or
services, as contrasted with a token use intended to
reserve some right to use the trademark in the future. displayed on or with goods offered for sale, or placed
on documents related to the goods. For services, a mark
is used in commerce if it appears in advertising or on
documents related to the services. In addition, the
goods must be used or the services rendered in more
than one state, because use ofa trademark in interstate
commerce is a prerequisite to federal trademark regis
tration. [Cases: Trademarks 1136, 1142.]
useless-gesture exception. (1970) Criminal proce
dure. An exception to the knock-and-announce rule
whereby police are excused from having to announce
their purpose before entering the premises to execute
a warrant when it is evident from the circumstances
that people inside the premises are of aware of the
police officers' authority and purpose. See KNOCK
AND-ANNOUNCE RULE. [Cases: Searches and Seizures
143.1.]
use plaintiff. Common-law pleading. A plaintiff for
whom an action is brought in another's name. -For
example, when the use plaintiff is an assignee CA") of
a chose in action and sues in the assignor's name ("B"),
the assignor's name appears first on the petition's title:
"B for the Use of A against C." -Also termed usee.
[Cases: Federal Civil Procedure 131; Parties
4.]
user (yooz-<lr). (15c) 1. The exercise or employment
of a right or property <the neighbor argued that an
easement arose by his continuous user over the last 15
years>. Cf. NONUSER.
user de action (yoo-zar dak-shan). [Law French] The
pursuing or bringing ofan action.
2. Someone who uses a thing <the stapler's last user did
not put it away>.
end user. (1963) The ultimate consumer for whom a
product is designed.
user agreement. See POINT-AND-CLICK AGREEMENT.
user confusion. See CONSUMER CONFUSION.
user fee. (1967) A charge assessed for the use of a par
ticular item or facility.
Uses, Statute of. See STATUTE OF USES.
use tax. See TAX.
use value. See VALUE (2).
use variance. See VARIANCE (2).
use zoning. See Euclidean zoning under ZONING.
usual, adj. (14c) 1. Ordinary; customary. 2. Expected
based on previous experience, or on a pattern or course
ofconduct to date.
usuary (yoo-zhoo-er-ee), n. Civil law. A person who has
the use (usus) ofa thing to satisfy personal and family
needs; a beneficiary. -Also termed (in Roman law)
usuarius.
usucapio (yoo-za-kay-pee-oh), n. Roman & civil law. The
acquisition of ownership by long, continuous posses
sion begun in good faith; esp., the acquisition ofowner
ship by prescription. -In classical law, the minimum
periods required were one year for movables and two
for land. Under Justinian law, the minimum periods
were three years for movables and ten years for land.
See PRESCRIPTION (5). -Also termed usus (yoo-zoos);
usucaption (yoo-za-kap-shdn); usucapion (yoo-za-kay
pee-on or -an). [Cases: Adverse Possession
usucapt, vb.; usucaption, n.
"There is no principle in all law which the moderns, in spite
of its benefiCial character, have been so loath to adopt
and to carry to its legitimate consequences as that which
was known to the Romans as Usucapion. and which has
descended to modern jurisprudence under the name of
Prescription." Henry S. Maine, Ancient Law 236 (17th ed.
1901). usnfruct (yoo-zd-frakt), n. [fro Latin usufructus] Roman
& civil law. A right for a certain period to use and enjoy
the fruits ofanother's property without damaging or
diminishing it, but allowing for any natural deteriora
tion in the property over time. In Roman law, the
usufruct was considered a personal servitude, result
ing in a real right. In modern civil law, the owner of
the usufruct is similar to a life tenant, and the owner
ofthe property burdened is known as the naked owner.
La. Civ. |
a life tenant, and the owner
ofthe property burdened is known as the naked owner.
La. Civ. Code art. 535. Also termed perfect usufruct;
usufructus; (in Scots law) liferent. Cf. HABITATION (J).
[Cases: Estates in Property (;=1.]
"Usufructus is .. the right of using and enjoying property
belonging to another provided the substance of the
property remained unimpaired. More exactly, a usufruct
was the right granted to a man personally to use and enjoy,
usually for his life ... the property of another which, when
the usufruct ended, was to revert intact to the dominus
or his heir. It might be for a term of years, but even here
it was ended by death, and in the case of a corporation
(which never dies) Justinian fixed the period at 100 years.
A usufruct might be in land or bUildings, a slave or beast
of burden, and in fact in anything except things which
were destroyed by use ... , the reason, of course, being
that it was impossible to restore such things at the end of
the usufruct intact ...." R.W. Leage, Roman Private Law
181-82 (C.H. Ziegler ed., 2d ed. 1930).
legal usufruct. A usufruct established by operation of
law, such as the right ofa surviving spouse to property
owned by the deceased spouse. La. Civ. Code art.
890. [Cases: Executors and Administrators (;=176;
Husband and Wife (;=273(2); Wills (;= 11.]
quasi-usufruct. l. A right to use property that cannot
be used without being expended or consumed, such
as money or food. Unlike an ordinary usufruct, a
quasi-usufruct actually involves alteration and dimi
nution ofthe property used. -Also termed imperfect
usufruct. 2. Louisiana law. A usufruct over consum
able things, such as money or harvested crops, the
value ofwhich must be delivered to the naked owner
at the end ofthe usufruct's term. La. Civ. Code art.
538. The usufructuary has the right to consume
or alienate the consumables and, at the end ofthe
usufruct, to deliver to the naked owner either the
value that the things had when the usufruct began
or things of the same quantity and quality. [Cases:
Executors and Administrators (;=>176.J
"The Roman jurists, therefore, would not acknowledge a
usufruct of money; though, in their desire to carry out
the wishes of testators, they came at length to recognize
a quasiusufruct. For testators, being seldom learned in
the law, would often set forth as legacies in their wills the
usufruct of a designated sum .... In such a case the person
named as legatee was allowed to receive the amount ..
on giving security that when he died the same amount
should be paid out of his own estate to the heres, the heir
of the testator. The relation here, though bearing some
resemblance to the usufruct, was really quite different; the
person who received the money became absolute owner of
it; the heir had no ownership, nothing but the assurance
of receiving an equal amount at some future time:James
Hadley, Introduction to Roman Law 193 (1881).
usufructuary (yoo-zd-frak-choo-er-ee), adj. Roman &
civil law. Ofor relating to a usufruct; of the nature of
a usufruct.
1685
usufructuary, n. Roman & civil law. One having the right
to a usufruct; specif., a person who has the right to the
benefits of another's property; a life-renter. [Cases:
Estates in Property (;:::::> 1.]
usufructus. See USUFRUCT.
usura (yoo-s[y]oor-a oryoo-z[y]oor-a). [Latin] Civil law.
1. 1be amount paid for the use of money; interest. 2.
USURY. Pl. usurae (yoo-s[yJoor-ee).
usurae centesimae (yoo-s[yJoor-ee [oryoo-z[y]oor-eel
sen-tes-a-mee). [Latin] Interest at the rate of 12% per
year (1% per month), usu. the highest rate allowed by
law. -The Romans calculated interest rates by dividing
the principal sum into one hundred parts, with one
part being payable monthly as interest.
usura manifesta (yoo-s[y]oor-a [oryoo-z[y]oor-a] man
a-fes-ta). [Latin] Manifest or open usury. Cf. USURA
VELATA.
usura maritima (yoo-s[y]oor-a [or yoo-z[y)oor-a]
ma-rit-a-ma). [Latin] Interest taken on a bottomry or
respondentia bond, proportioned to the risk and so not
restricted by any usury laws.
usurarius (yoo-s(y]a-rair-ee-as or yoo-z[y]<l-). [Law
Latin) Hist. A usurer.
usura velata (yoo-s[y]oor-a [oryoo-z[y]oor-a] va-Iay-ta).
[Latin] Veiled or concealed usury. _ A creditor was
guilty of usura velata when the creditor added unlaw
fully high interest to the principal sum as ifthe interest
amount were part ofthe original loan. Cf. UBI ABERAT
ANIMUS FOENERANDII; USURA MANIFESTA.
usurious (yoo-z[y]oor-ee-as or yoo-zhuu-ree-as), adj.
(17c) 1. Practicing usury <a usurious lender>. 2. Char
acterized by usury <a usurious contract>. [Cases: Usury
10-42.]
usurpatio (yoo-sClr-pay-shee-oh), n. [Latin] Roman law.
The interruption of usucaption by reason of loss of
physical possession or a lawsuit by the true legal owner.
PI. usurpationes (yoo-sClr-pay-shee-oh-neez).
usurpation (yoo-sar-pay-shan or yoo-zar-pay-sh<ln), n.
(14c) The unlawful seizure and assumption ofanother's
position, office, or authority. [Cases: Officers and Public
Employees (;:::::>86.] usurp (yoo-s3rp or yoo-zarp),
vb.
usurpation ofadvowson (ad-vow-zan). Hist. An injury
consisting in the absolute ouster or dispossession of
the patron from the advowson. -This happens when
a stranger, without the right to do so, presents a clerk
who is installed in office. See ADVOWSON.
usury (yoo-zh<l-ree), n. (14c) 1. Historically, the lending
of money with interest. 2. Today, the charging of an
illegal rate ofinterest as a condition to lending money.
3. An illegally high rate of interest. Also termed
illegal interest; unlawful interest. (Cases: Banks and
Banking (;=:c 181; Building and Loan Associations
33; Usury -usurer (yoo-zh<lr-<lr), n.
usury law. A law prohibiting moneylenders from
charging illegally high interest rates. (Cases: Usury
(;:::::> 1.] utilis
usus (yoo-sas or yoo-zas), n. [Latin "use"] Roman law.
1. The right to use another's property, without the
right to receive or retain the benefits or fruits (fructus)
produced by the property, -Usus was a personal servi
tude; it gave the holder a right in rem. Cf. USUFRUCT.
"It is essentially a fraction of a usufruct, usus Without the
fructus. In strictness, there was no right to any fruits but
this was somewhat relaxed in practice. The usuary of a
house might consume the fruits of the gardens in his
household, but he might not sell them, as a usufructuary
might." W.W. Buckland, A Manual of Roman Private Law
165 (2d ed. 1953).
2. 'The factual possession required for usucapio. 3. Lapse
oftime by which a wife was brought into the husband's
family and under his marital power. See MANUS (1). Cf.
COEMPTIO; CONFARREATIO.
"Usus is the acquisition of [power over] a Wife by possession
and bears the same relation to coemptio as usucapion to
a mancipation. A Roman citizen who bought some object
of property and got possession of it, but not ownership,
because he neglected to go through the mancipation pre
scribed by jus civile, might nevertheless become owner
by u5ucapion, i.e. lapse of time; thus if the object was a
movable, continuous posseSSion for one year made him
dominus. In like manner, if a man lived with a woman whom
he treated as his Wife, but whom he had not married by
coemptio (or confarreatio), and the cohabitation lasted
without interruption for a year, then at the end of that
period the man acquired [power over] the woman as his
wife, she passed to him in manum . ..." RW. Leage, Roman
Private Law 100 (C.H. Ziegler ed., 2d ed. 1930).
usus bellici (YOO-S<lS [or -Z<lS] bel-;)-sI). [Latin] Int'llaw.
Warlike objects or uses. -This phrase refers to items
that, while not inherently ofa military nature, are con
sidered contraband because they are used by a belliger
ent to support its war effort.
Usus Feudorum (yoo-S<lS [or -zas] fyoo-dor-am). See
FEUDORUM LIBRI.
ut currere solebat (<It kar-ar-ee sa-lee-bat). [Latin] As
it was wont to run. _ This referred to the course of a
stream.
ut de feodo (at dee fee-a-doh or fyoo-doh). [Law Latin]
As offee.
uterine (yoo-t<lr-in), adj. Born of the same mother but
haVing different biological fathers.
uterine brother. See BROTHER.
uterine sister. See SISTER.
uterque (yoo-t3r-kwee). [Latin] Each of two; both (con
sidered separately).
uterque nostrum (yoo-tram-kwee nos-tram). See
UTRUMQUE NOSTRUM.
utfangthief (at-fang-theef). See OUTFANGTHIEF.
ut hospites (<It hos-pa-teez). [Latin] As guests.
uti (yoo-tI), vb. [Latin] Civil law. To use.
utifrui (yoo-tI froO-I). [Latin] Civil law. To have the full
use and enjoyment ofa thing, without damage to its
substance.
utitis (yoo-ta-lis), adj. [Latin] Civil law. Useful; benefi
cial; equitable. -This word appeared in phrases such as
1686 utilitarian-deterrence theory
actio uti/is (ak-shee-oh yoo-t<l-lis), meaning "equitable
action."
utilitarian-deterrence theory. (1983) The legal theory
that a person should be punished only if the punish
ment benefits society that is, only if the punish
ment would help to deter future harmful conduct. See
hedonistic utilitarianism under UTILITARIANISM. Cf.
RETRIBUTIVlSM.
utilitarianism. (1827) The philosophical and economic
doctrine that the best social policy is that which does
the most good for the greatest number ofpeople; esp., an
ethical theory that judges the rightness or wrongness of
actions according to the pleasure they create or the pain
they inflict and recommends whatever action creates
the greatest good for the greatest number of people.
This is a type of consequentialism. For example, utili
tarianism analyzes intellectual-property rights from
the point ofview ofsociety rather than the individual
inventor, author, or artist, and justifies the rights as
an incentive for social and technological progress. See
CONSEQUENTIALISM. Cf. LOCKEAN LABOR THEORY;
PERSONALITY THEORY. utilitarian, adj. & n.
hedonistic utilitarianism. (1943) The theory that the
validity ofa law should be measured by determining
the extent to which it promotes the greatest happi
ness to the greatest number ofcitizens. This theory
is found most prominently in the work of Jeremy
Bentham, whose "Benthamite utilitarianism" greatly
influenced legal reform in nineteenth-century Britain.
Hedonistic utilitarianism generally maintains that
pleasure is intrinsically good and pain intrinSically
bad. Therefore, inflicting pain on an individual, as
by punishing a criminal, is justified only if it results
in a net increase of pleasure for society by deterring
future harmful behavior. Also termed Benthamism.
See utilitarian-deterrence theory; BENTHAMITE. Cf.
RETRIBUTIVISM.
utiliter et equivalenter (yoo-til-<l-t<lr et i-kwiv-<l-len-tdr).
[Law Latin] Rist. Duly and with equal effect.
utiliter impensum (yoo-til-<l-tdr im-pen-sdm). [Latin]
Hist. Usefully expended.
utility. (14c) 1.1he quality ofserving some function that
benefits society; meritoriousness. 2. Patents. Capacity
to perform a function or attain a result for which the
patent applicant or holder claims protection as intel
lectual property. In patent law, utility is one ofthe
three basic requirements of patentability, the others
being nonobviousness and novelty. In the calculation of
damages for patent infringement, utility is the benefit
or advantage of the patented product or process over
the products or processes, if any, that previously had
been used to produce similar results. [Cases: Patents
C=47.]
"[Tlhe utility requirement does not mandate that the inven
tion be superior to |
Patents
C=47.]
"[Tlhe utility requirement does not mandate that the inven
tion be superior to existing products and processes in
order to qualify for a patent. The utility standard reflects
the judgment that society is better served by access to a
library of issued patents describing as many inventions
as possible, even if many of them do not achieve better
results than public domain technology. This liberal view of utility allows subsequent inventors access to a greater
variety of previous technologies, some of which may yet
be judged the superior solution when employed within a
different context." Roger E. Schechter & John R. Thomas,
Intellectual Property 15.1, at 316 (2003).
3. A business enterprise that performs an essential
public service and that is subject to governmental reg
ulation.
public utility. (1895) 1. A company that provides neces
sary services to the public, such as telephone lines and
service, electricity, and water. Most utilities operate
as monopolies but are subject to governmental regu
lation. [Cases: Public Utilities (,'=' 101.] 2. A person,
corporation, or other association that carries on an
enterprise for the accommodation of the public, the
members ofwhich are entitled as a matter ofright to
use the enterprises's facilities.
utility fund. See MUTUAL FUND.
utility model. Patents. A system of patent registration
giving patent-like rights in some countries, usu. for a
shorter term than a patent but with little or no search
required. Utility-model registration is not available
in the U.S. or Great Britain, but is offered in Japan and
many European countries, including Germany and
France. They are available for machines only, and not
for chemicals. Also termed petty patent; second-tier
patent; small invention.
utility patent. See PATENT (3).
uti mos est infeudifirmis (yoo-tI mahs est in fyoo-di
far-mis). [Law Latin] Scots law. As is the custom in feu
holdings.
ut infra (dt in-frd also uut). [Latin] Rist. As below.
uti possidetis (yoo-tI pah-si-dee-tis). [l.atin] 1. lnt'l
law. The doctrine that the administrative boundaries
will become international boundaries when a politi
cal subdivision or colony achieves independence. 2.
Roman law. An interdict ordering each party to a
lawsuit to maintain the possession of real property as
it stands pending an official decision on who owns the
property. Cf. UTRUBI. 3. The doctrine that personal
property captured during wartime and still held by
the captor when the war ends becomes the captor's
legal property.
'The restoration of peace put an end ... to all force, and
then the general principle applied, that things acquired in
war remain, as to title and possession, precisely as they
stood when the peace took place. The uti possetidis is
the basis of every treaty of peace, unless it be otherwise
agreed. Peace gives a final and perfect title to captures
without condemnation; and as it forbids all force, it
destroys all hopes of recovery as much as if the vessel
was carried infra presidia, and condemned." James Kent,
1 Commentaries on American Law *173 (George Comstock
ed., 11th ed. 1866).
uti rogas (yoo-tI rob-gas or [Latin] Roman law.
As you ask. This phrase was inscribed on a ballot to
indicate a vote in favor ofa bill or candidate. Abbr.
u.r.
1687
utitur jure auctoris (yoo-ti-taf joor-ee awk-tor-is).
[Latin] His!. He exercises the right of his predecessor
in title.
utiturjure communi (yoo-ti-tar joor-ee b-myoo-m).
[Latin] Hist. He relies on the common law.
utitur jure privata (yoo-ti-tar joor-ee prr-vay-toh).
[Latin] Hist. He relies on his own private right.
utitur jure suo (yoo-ti-tar joor-ee s[yJoo-oh). [LatinJ
Hist. He exercises his own right.
"The exercise of rights of property on the part of a pro
prietor ... cannot be interfered with, even where they are
injurious in their effects to the adjoining property. In such
case the proprietor is only doing that which he has a right
to do, utituyjuye suo." John Trayner, Trayney's Latin Maxims
618-19 (4th ed. 1894).
utlagare (<It-Iag-a-ree or at-la-gair-ee), vb. [Law Latin]
lIist. To put (an offender) outside the protection ofthe
law. Cf. INLAGARE; OUTLAWRY (2).
utlagation (at-Ia-gay-shan), n. [Law Latin] Hist. 1he act
ofplacing an offender outside the protection of the law;
outlawry. Also termed utlagatio. Cf. INLAGATION;
OUTLAWRY (2).
utlagatus (at-Ia-gay-tas), n. [Latin] Hist. An outlawed
person; an outlaw.
utlage (at-Iahzh or -lij), n. [Law French] An outlaw.
utlagb (<It-Iaw). [Old English] lUst. A person outside the
protection ofthe law; an outlaw.
utland (at-hmd) [Old English] Hist. The outer portion of
a lord's demesne, used to support the lord's tenants.
Also termed delantal (di-Ian-tal). Cf. INLAND (2).
utIesse. Hist. A felon's escape from prison.
UTMA. abbr. UNIFORM TRANSFERS TO MINORS ACT.
utmost care. See great care under CARE.
ut nihil illi desit (<1t m-hil ii-I dee-sit). [Latin] Hist. That
nothing may be wanting to him.
UTPCPL. abbr. UNFAIR TRADE PRACTICES AND
CONSUMER PROTECTION LAW.
ut prosint ad veritatem indagandam (at prob-sint ad
ver-a-tay-tam in-d;:l-gan-dam). [Law Latin] Hist. That
they be ofservice for investigating the truth.
ut res magis valeat quam pereat (rays [or reez or rez]
may-jis yay-lee-at kwam peer-ee-at). [Latin "to give
effect to the matter rather than having it fail "J A maxim
of document construction applied when alternative
readings are possible, one ofwhich (usu. the broader
reading) would achieve the manifest purpose of the
document and the other of which (usu. the narrower
reading) would reduce the document's purpose to uxoricide
futility or absurdity, whereby the interpreter chooses
the construction that gives greater effect to the docu
ment's primary purpose.
ut res valeat potius quam pereat (at rays [or reez or rez)
yay-lee-at pob-shee-as kwam peer-ee-at). [Latin] Hist.
That the thing may avail rather than perish; that the
transaction may be valid rather than invalid.
utrubi (<It-ra-bI), n. [Latin] Roman law. An interdict for
maintaining the status quo of possession of movable
property pending a ruling to determine the property's
rightful owner . In Roman law, this interdict gave pos
session ofmovable property to the party who had held
the property longer during the previous year. Justinian
applied the rule of uti possidetis to movables. Cf. UTI
POSSIDETIS (2).
utrumque nostrum (yoo-tr<lm-kwee nos-tr<lm). [Latin]
Each of us. This phrase usu. appeared in bonds. The
accusative form is uterque nostrum.
UTSA. abbr. UNIFORM TRADE SECRETS ACT.
ut supra (<1t s[y]oo-pr<l also uut). [Latin] Hist. As above.
utter, adj. (ISc) Complete; absolute; total <an utter
denial>.
utter, vb. (ISc) I. To say, express, or publish <don't utter
another word until your attorney is present>. 2. To put
or send (a document) into circulation; esp., to circulate
(a forged note) as if genuine <she uttered a counterfeit
$50 bill at the grocery store>. [Cases: Counterfeiting
(;.=9; False Pretenses G-=>6; Forgery C:::> 16.] utter
ance (for sense 1), uttering (for sense 2), n.
utter bar. See OUTER BAR.
utter barrister. See outer barrister under BARRISTER.
uttering. (I8c) The crime ofpresenting a false or worth
less instrument with the intent to harm or defraud.
Also termed uttering a forged instrument. See FORGERY.
[Cases: Counterfeiting C:::>9; False Pretenses G-=>6;
Forgery
ut voluntas testatoris sortiatur effectum (<1t va-l:m-tas
tes-ta-tor-is sor-shee-ay-t<1r i-fek-t<1m). [Latin] Hist.
That the will ofthe testator may be effectuated.
uxor (ak-sor), n. [Latin] Wife. Abbr. ux. See ET UXOR.
Cf. VIR.
uxore rapta etabducta (ak-sor-ee [also ag-zor-ee] rap-t<l
et ab-dak-t<l). See DE UXORE RAPTA ET ABDUCTA.
uxorial (ak-sor-ee-al or ag-zor-), adj. Of, relating to, or
characteristic ofa wife <uxorial property>.
uxoricide (ak-sOr-<1-SId or ag-zor-), n. (I8c) 1. The murder
ofone's wife. 2. A man who murders his wife. Cf. MAR
ITICIDE. uxoricidal, adj.
v. abbr. l. VERSUS. -Also abbreviated vs. 2. Volume.
Also abbreviated vol. 3. Verb. Also abbreviated vb.
4. (cap.) Victoria -the Queen of England from 1837
to 1901. 5. Vide . This Latin term, meaning " is
used in phrases such as quod vide ("which see," abbre
viated q.v.). 6. Voce (voh-see). This Latin term means
Hvoice,H
VA. abbr. DEPARTMENT OF VETERANS AFFAIRS.
vacancy, n. l. The state or fact of a lack ofoccupancy in
an office, post, or piece ofproperty. [Cases: Officers and
Public Employees C=55.] 2. The time during which
an office, post, or piece of property is not occupied. 3.
An unoccupied office, post, or piece of property; an
empty place. Although the term sometimes refers
to an office or post that is temporarily filled, the more
usual reference is to an office or post that is unfilled
even temporarily. An officer's misconduct does not
create a vacancy even ifa suspension occurs; a vacancy,
properly speaking, does not occur until the officer is
officially removed.
vacancy clause. Insurance. A special indorsement
allowing premises to be unoccupied beyond the period
stipulated in the original insurance policy, so that the
insurance remains in effect during policy extensions,
often for a reduced amount. [Cases: Insurance
3049(5).]
vacant, adj. (13c) 1. Empty; unoccupied <a vacant office>.
Courts have sometimes distinguished vacant from
unoccupied, holding that vacant means completely
empty while unoccupied means not routinely charac
terized by the presence ofhuman beings. 2. Absolutely
free, unclaimed, and unoccupied <vacant land>. 3. (Of
an estate) abandoned; having no heir or claimant.
The term implies either abandonment or nonoccu
pancy for any purpose.
vacantia (va-kan-sh[ee]-a). See bona vacantia under
BONA.
vacantia bona (va-kan-sh[ee]-a boh-n<l). See bona
vacantia under BONA.
vacant succession. See SUCCESSION (2).
vacate, vb. (17c) 1. To nullify or cancel; make void; invali
date <the court vacated the judgment>. Cf. OVERRULE.
2. To surrender occupancy or possession; to move out
or leave <the tenant vacated the premises>.
vacatio (vd-kay-shee-oh). Civil law. Exemption;
immunity; privilege; dispensation.
vacation, n. (15c) 1. The act ofvacating <vacation of the
office> <vacation of the court's order>. 2. The period
between the end ofone term ofcourt and the beginning
ofthe next; the space oftime during which a court holds
no sessions. [Cases: Courts C=69.] The traditional v
vacations in England were Christmas vacation, begin
ning December 24 and ending January 6; Easter
vacation, beginning Good Friday and ending Easter
Tuesday; Whitsun vacation, beginning on the Saturday
immediately before and ending the 'Tuesday immedi
ately after Whitsunday (Le., Pentecost, the seventh
Sunday after Easter); and the long vacation, beginning
August 13 and ending October 23. 3. Loosely, any time
when a given court is not in session. lCases: Courts
69.]4. Eccles. law. The act or process by which a church
or benefice becomes vacant, as on the death or resigna
tion ofthe incumbent, until a successor is appointed.
Also termed (in sense 4) vacatura.
vacation barrister. See BARRISTER.
vacatur (vd-kay-tar), n. [Law Latin "it is vacated"] (17c) 1.
The act ofannulling or setting aside. 2. A rule or order
by which a proceeding is vacated.
vacatura (vay-ka-t[y]oor-J), n. [Latin] VACATION (4).
vacua possessio (vak-yoo-a pJ-zes[h]-ee-oh). [Latin "a |
vacua possessio (vak-yoo-a pJ-zes[h]-ee-oh). [Latin "a
vacant possession"] Roman & civil law. Free and unbur
dened possession, which a seller must convey to a pur
chaser.
vacuus (vak-yoo-as), adj. [Latin] Hist. Empty; void;
vacant; unoccupied.
vades. See VAS.
vadiare duellum (vad-ee-air-ee d[y]oo-el-am), vb. [Law
Latin "to wage the duellum"] Hist. To pledges
mutually for engaging in trial by combat
vadiare legem (vad-ee-air-ee lee-jam), vb. [Law Latin "to
wage law"] Hist. (Of a defendant in a debt action) to give
security to make one's law on a day aSSigned -that is,
the defendant would pledge, upon giving the security,
to do two things on the appointed day in court: (1) take
an oath in open court that the debt was not owed, and
(2) bring 11 compurgators who would swear that they
believed what the defendant said.
vadiatio (vad-ee-ay-shee-oh), n. [Law Latin] Hist. Wager.
Cf. INVADIATIO. PI. vadiationes (vad-ee-ay-shee-oh
neez).
vadiatio duelli (vad-ee-ay-shee-oh d[y]oo-el-l). [Law
Latin "wager of battle"] See TRIAL BY COMBAT.
vadiatio legis (vad-ee-ay-shee-oh lee-jis). [Law Latin
"wager oflaw"] See WAGER OF LAW.
vadimonium (vad-a-moh-nee-am), n. Roman law. 1. A
guarantee (originally backed by sureties) that a litigant
would appear in court. 2. A solemn promise to this
effect. -Also termed vadimony.
vadium (vay-dee-dm), n. [Law Latin "pledge, bail,
security"] Hist. 1. Security by a pledge of property.
1689
vadium mortuum (vay-dee-dm mor-choo-dm). [Law
Latin "dead pledge"] A mortgage. -This was consid
ered a dead pledge" because an estate was given as
security by the borrower, who granted to the lender
the estate in fee, on the condition that if the money
were not repaid at the specified time, the pledged
estate would continue as the lender's it would be
gone from, or "dead" to, the borrower (mortgagor).
Also termed mortuum vadium. See MORTGAGE.
[Cases: Mortgages C=> 1.]
vadium vivum (vay-dee-dm vI-vdm). [Law Latin "live
pledge"] A living pledge, which exists when an estate
is granted by a borrower to a lender until a debt is paid
out ofthe estate's proceeds . The pledge was so called
because neither the money nor the lands were lost; it
was a "living pledge" because the profits of the land
were constantly paying off the debt. -Also termed
vivum vadium; vif-gage.
2. Wages; salary.
vadium ponere (vay-dee-dm poh-nd-ree), vb. Hist. To
take bail for the appearance ofa person in court.
vagabond (vag-d-bond), n. Archaic. A homeless wanderer
without any means or an honest livelihood; VAGRANT.
This term became archaic over the course of the 20th
century, as vagrants won the right not to be forcibly
removed from cities in such cases as Papachristou v.
City ofJacksonville, 405 U.S. 156,92 S.Ct. 839 (1972).
In the 19808 and 19908, vagabonds came to be known
as street people and homeless people, or the homeless.
Also termed vagabundus (vag-d-b,m-dds).
"[AJII idle persons or vagabonds [are) ... divided into three
classes, idle and disorderly persons, rogues and vagabonds,
and incorrigible rogues; -all these are offenders against
the good order, and blemishes in the government, of any
kingdom. They are therefore all punished ... rogues and
vagabonds with whipping and imprisonment not exceeding
six months ...." 4 William Blackstone, Commentaries on
the Laws of England 170 (1769).
vagabondage (vag-d-bon-dij). 1. The condition of a
vagabond. 2. Vagabonds as a class. Also termed (in
sense 1) vagabondism; (in senses 1 & 2) vagabondry.
vagabundus (vag-d-ban-das). [Law Latin] See
VAGABOND.
vagrancy (vay-gran-see), n. (l7c) 1. ]b.e state or condition
ofwandering from place to place without a home, job,
or means of support. Vagrancy is generally consid
ered a course of conduct or a manner ofliving, rather
than a single act. But under some statutes, a Single act
has been held sufficient to constitute vagrancy. One
court held, for example, that the act ofprowling about
and creeping up on parked cars and their occupants
at night, under circumstances suggesting an intent
to commit a crime, constitutes vagrancy. See Smith
v. Drew, 26 P.2d 1040 (Wash. 1933). Many state laws
prohibiting vagrancy have been declared unconsti
tutionally vague. Also termed vagrantism. [Cases:
Vagrancy C=> 1.] 2. An instance ofsuch wandering. Cf.
LOITERING.
"Vagrancy is a status resulting from misconduct and in
the form of a socially harmful condition or mode of life va/ens agere
which has been defined and made punishable by law. Until
recently it was a misdemeanor, or group of misdemean
ors, in most states." Rollin M. Perkins & Ronald N. Boyce,
Criminal Law 494 (3d ed. 1982).
vagrant, adj. (15c) 1. Of, relating to, or characteristic
of a vagrant; inclined to vagrancy. 2. Nomadically
homeless. [Cases: VagrancyC='1.]
vagrant, n. (ISc) 1. At common law, anyone belonging to
the several classes of idle or disorderly persons, rogues,
and vagabonds. 2. One who, not having a settled habi
tation, strolls from place to place; a homeless, idle
wanderer. -The term often refers to one who spends
time in idleness, lacking any property and without any
visible means ofsupport. Under some statutes, a vagrant
is an offender against or menace to the public peace,
usu.liable to become a public burden. Cf. VAGABOND.
[Cases: VagrancyC=>1.]
vagrantism. See VAGRANCY.
vague, adj. (16c) 1. Imprecise; not sharply outlined;
indistinct; uncertain.
unconstitutionally vague. 1. (Of a penal legislative
provision) so unclear and indefinite as not to give
a person of ordinary intelligence the opportunity
to know what is prohibited, restricted, or reqUired .
[Cases: Criminal Law C=>13.1(1); Statutes 47.J 2. (Of a
statute) impermissibly delegating basic policy matters
to administrators and judges so such a degree as to
lead to arbitrary and discriminatory application.
[Cases: Statutes 47.]
2. (Of language) describing a distribution around a
central norm, as opposed to a neatly bounded class;
broadly indefinite; not clearly or concretely expressed.
3. Characterized by haziness of thought.
vague-and-indefinite rejection. See REJECTION.
vagueness. (18c) 1. vncertain breadth of meaning <the
phrase "within a reasonable time" is plagued by vague
ness -what is reasonable?>. -Though common in
writings generally, vagueness raises due-process
concerns if legislation does not provide fair notice of
what is required, restricted, or prohibited, because
enforcement may become arbitrary. 2. Loosely, ambi
guity. See AMBIGUITY.
vagueness doctrine. (1957) COrlstitutionallaw. The
doctrine based on the Due Process Clause requir
ing that a criminal statute state explicitly and definitely
what acts are prohibited or restricted, so as to provide
fair warning and preclude arbitrary enforcement.
Also termed vOid-for-vagueness doctrine. See void for
vagueness under VOID. Cf. OVERBREADTH DOCTRINE.
[Cases: Constitutional Law C=>4S06.]
valeat quantum (vay-iee-at [or -dt] kwon-tdm). [Law
Latin] Hist. For as much as it is worth.
valens agere (vay-lenz aj-ar-ee). [Law Latin] Hist. Able
to act.
"A person is said to be va/ens ague when, from age and
position, he is able to protect his rights against the invasion
of them by others: against such a person not protecting
his rights prescription runs, while prescription does not
1690 valentia
run against one who is non valens agere." John Trayner,
Trayner's Latin Maxims 621 (4th ed. 1894).
valentia (vd-Ien-shee-d), n. [Law Latin from Latin valere
"to be of value") Hist. Value; worth. -In old indict
ments for larceny, this term often appeared to express
the value of the things taken.
valentia agendi (vd-Ien-shee-d d-jen-dl). [Law Latin)
Hist. The power of acting. See VALENS AGERE.
valere seipsum (vd-Ieer-ee see-ip-sdm). [Law Latin] Hist.
To be of its own value. -The phrase usu. referred to
land.
valid, adj. (l6c) 1. Legally sufficient; binding <a valid
contract>. 2. Meritorious <that is a valid conclusion
based on the facts presented in this case>. validate,
vb. -validation, validity, n.
valid agreement. See valid contract under CONTRACT.
validating statute. See 5TATUTE.
valid contract. See CONTRACT.
validity opinion. See OPINION (2).
validity search. An exhaustive search for prior art or
any other facts that can be used to invalidate a patent.
See BREAKING A PATENT. Cf. INFRINGEMENT SEARCH;
PATENTABILITY SEARCH.
valid judgment. See JUDGMENT.
valid marriage. See MARRIAGE (1).
valid warrant. See WARRA::-.fT (1).
valise diplomatique (vd-Iees di-ploh-ma-teek). See DIP
LOMATIC POUCH.
Vallescura rule. Maritime law. The holding that when a
maritime loss is due to more than one cause, and the
carrier is exempt from liability for at least one of them,
the burden is on the carrier to prove what loss is due
to the exempt cause. -If the carrier fails to prove the
exemption, it is liable for the entire loss. Schnell v. 'fhe
Vallescura, 293 U.S. 296, 55 S.Ct. 194 (1934).
VA loan. See veteran's loan under LOAN.
valor (val-dr), n. [Latin) Hist. Value; worth; rate; a val
uation. -Also spelled (esp. in BrE) valour. See AD
VALOREM.
valor beneficiorum (val-dr ben-~-fish-ee-or-dm). [Law
Latin] Hist. The value ofall ecclesiastical benefices and
spiritual preferments.
valor maritagii (val-df mar-d-tay-jee-r). [Latin] Hist. The
value of a marriage . Under ancient tenures, this was
the amount that a female ward forfeited to a guardian
when the guardian had offered her a marriage without
disparagement (inequality), and she refused. Likewise
in feudal law, the guardian in chivalry had the right of
tendering to a minor ward a suitable match, without
disparagement. If the ward refused, she had to compen
sate the guardian for the value of the marriage (valor
maritagii). -Also termed (in the accusative) valorem
maritagii; (Scots law) avail ofmarriage.
"If an infant ward of a guardian in chivalry refused a match
tendered by the guardian, he or she forfeited the value of the marriage (valorem maritagii) to the guardian; that is,
so much as ajury would assess, or anyone would bona
fide give to the guardian for such an alliance." 2 Alexander
M. Burrill, A Law Dictionary and Glossary 572-73 (2d ed.
1867).
valuable, adj. Worth a good price; having financial or
market value.
valuable consideration. See CONSIDERATION (1).
valuable improvement. See IMPROVEME::-.fT.
valuable papers. Documents that, upon a person's death,
are important in carrying out the decedent's wishes and
in managing the estate's affairs . Examples include
a will, title documents, stock certificates, powers of
attorney, letters to be opened on one's death, and the
like. Some statutes require that, to be effective, a holo
graphic will devising realty must be found among the
decedent's valuable papers.
valuable-papers insurance. See I::-.fSURANCE.
valuation, n. (l6c) 1. The process of determining the
value of a thing or entity. 2. The estimated worth of a
thing or entity. -value, valuate, vb.
assessed valuation. (1825) The value that a taxing
authority gives to property and to which the tax |
.
assessed valuation. (1825) The value that a taxing
authority gives to property and to which the tax rate
is applied. [Cases: Taxation C=>2512, 2520.]
special-use valuation. (1976) An executor's option of
valuating real property in an estate, esp. farmland,
based on its current use rather than for its highest
potential value. [Cases: Internal Revenue C=>4183;
Taxation C::;>3350.1
valuation date. See ALTERNATE VALUATION DATE.
valuation list. Hist. An inventory of all the ratable her
editaments in a parish, each item in the inventory
recording the name of the occupier, the owner, the
property, the extent of the property, the gross estimated
rental, and the ratable value. -The list was traditionally
prepared by the overseers of each parish.
value, n. (14c) 1. The significance, desirability, or utility
of something.
social value. The significance, deSirability, or utility of
something to the general public.
2. The monetary worth or price of something; the
amount of goods, services, or money that something
commands in an exchange.
actual cash value. Insurance. 1. Replacement cost
minus normal depreciation. [Cases: Insurance
2181.) 2. Seefair market value.
actual market value. Seefair market value.
actual value. Seefair market value.
agreed value. A property's value that is fixed by agree
ment ofthe parties, esp. the property's owner and the
person or entity valuating the property. _ An example
is a list ofproperty values contained in an insurance
policy. [Cases: Insurance
annual value. 1. The net yearly income derivable from
a given piece ofproperty. 2. One year's rental value of
1691
property, less the costs and expenses ofmaintaining
the property.
assessed value. The value ofan asset as determined by
an appraiser for tax purposes. [Cases: Taxation C=>
2510.]
book value. See BOOK VALUE.
cash surrender value. Insurance. The amount of
money payable when an insurance policy having cash
value, such as a whole-life policy, is redeemed before
maturity or death. -Abbr. CSV. -Also termed sur
render value; cash value. [Cases: Insurance C=>1957,
2037.]
cash value. 1. See fair market value. 2. See full cash
value. 3. See cash surrender value.
clear annual value. The net annual value of property,
after payment of taxes, interest on mortgages, and
other charges.
clear market value. Seefair market value.
clear value. Tax. For purposes of an inheritance tax,
whatever remains of an estate after all claims against
it have been paid. [Cases: Taxation C=>3351.]
commuted value (k;:,-myoo-tid). 1. In the assessment
of damages, the present value of a future interest in
property. 2. 'The value offuture payments when dis
counted to their present value.
enterprise value. A measure of a company's market
value, calculated by aggregating the value of the
company's market capitalization, debt, and preferred
stock, and subtracting cash and cash equivalents.
exchange value. The amount of money for which
property or services could be exchanged or procured
if there is a ready market continually resorted to by
traders -or, in the absence of such a market, the
amount that could be obtained in the usual course
offinding a purchaser or hirer ofsimilar property or
services. [Cases: Evidence C=> 113(20).]
fair market value. (I8c) The price that a seller is willing
to accept and a buyer is willing to pay on the open
market and in an arm's-length transaction; the point
at which supply and demand intersect. Abbr.
FMV. Also termed actual value; actual cash value;
actual market value; cash value; clear market value;
fair and reasonable value;fair cash market value;fair
cash value;fair market price;fair value;full value;just
value; market value; salable value; true value. [Cases:
Taxation C:::>2515.]
"[AI forced sale price is not fair value though it may be used
as evidence on the question of fair value. Likewise, the fair
value of saleable assets is not what they would sell for in
the slow process of the debtor's trade as if the debtor were
continuing business unhampered. The general idea of fair
value is the amount of money the debtor could raise from
its property in a short period of time, but not so short
as to approximate a forced sale, if the debtor operated
as a reasonably prudent and diligent businessman with
his interests in mind, especially a proper concern for the
payment of his debts." David G. Epstein et aI., Bankruptcy
6-18, at 307 (1993).
fair value. Seefair market value. value
full cash value. Market value for property tax purposes;
estimated value derived by standard appraisal
methods. Also termed cash value. [Cases: Taxation
C=>2515.]
full value. Seefair market value.
future value. The value, at some future time, of a
present sum or a series of monetary payments, cal
culated at a specific interest rate.
going-concern value. The value of a commercial
enterprise's assets or of the enterprise itself as
an active business with future earning power, as
opposed to the liquidation value of the business or
of its assets. -GOing-concern value includes, for
example, goodwill. -Also termed going value. Cf,
GOODWILL.
highest proved value. In a trover action, the greatest
value (as proved by the plaintiff) that the converted
property reached from the time of the conversion
until trial. -It is the highest amount that a plaintiff
is entitled to recover. [Cases: Trover and Conversion
insurable value. See INSURABLE VALUE.
intrinsic value. '!he inherent value ofa thing, without
any special features that might alter its market value.
-The intrinsic value of a silver coin, for example, is
simply the value of the silver within it.
just value. Seefair market value.
liquidation value. 1. The value of a business or of an
asset when it is sold in liqUidation, as opposed to
being sold in the ordinary course of business. 2. See
liqUidation price under PRICE.
market value. Seefair market value.
most-suitable-use value. See optimal-use value.
net value. 1. Insurance. The excess of a policyholder
payments over the yearly cost ofinsurance; the part
ofan insured's annual premium that, according to
actuarial tables, the insurer must set aside to meet
the insurer's obligations to the insured. -Also
termed reserve. [Cases: Insurance C=>2037.] 2. The
fair market value ofshares ofstock. [Cases; Corpora
tions C=> 182.4(5),584.]
new value. 1. A value that is newly given or freshly
calculated. 2. The value obtained by taking a security,
such as collateral, for any debt other than a preexist
ing one.
optimal-use value. Tax. The highest and best use of
a thing from an economic standpoint. -If a farm
would be worth more as a shopping center than as
a farm, the shopping-center value will control even
if the transferee (that is, a donee or heir) continues
to use the property as a farm. Also termed most
suitable-use value. [Cases: Taxation C:::>2515.]
par value. See PAR VALUE.
policy value. See POLICY VALUE.
present value. See PRESENT VALUE.
1692 value-added card
residual value. See salvage value.
salable value. See fair market value.
salvage value. (1917) The value of an asset after it has
become useless to the owner; the amount expected
to be obtained when a fixed asset is disposed ofat the
end of its useful life. -Salvage value is used, under
some depreciation methods, to determine the allow
able tax deduction for depreciation. And under the
UCC, when a buyer ofgoods breaches or repudiates
the contract ofsale, the seller may, under certain cir
cumstances, either complete the manufacture of any
incomplete goods or cease the manufacture and sell
the partial product for scrap or salvage value. UCC
2-704(2). -Also termed residual value; scrap value.
See DEPRECIATION. [Cases: Sales C:~3S4(6).1
scrap value. See salvage value.
settlement value. The value of a claim if the claimant
settles immediately as opposed to pursuing the claim
further through litigation.
surrender value. See cash surrender value.
true value. See fair market value.
use value. A value established by the utility ofan object
instead of its sale or exchange value.
value received. See VALUE RECEIVED.
3. Sufficient contractual consideration.- value, vb.
valuation, n.
"Value also includes paying or securing a preexisting debt,
and in this regard value is broader than common-law con
sideration. Thus, a debtor receives value in satisfying an
antecedent claim (as by paying an overdue account or an
outstanding loan or by transferring property to vindicate
a preexisting interest in it) or in providing collateral for a
previously unsecured creditor. It makes no difference that
the debtor got nothing new, in terms of property added
to her estate, at the time of the transfer." David G. Epstein
et aI., Bankruptcy 6-49, at 374 (1993).
value-added card. See STORED-VALUE CARD.
value-added model. See LABOR-DESERT MODEL.
value-added tax. See TAX.
value date. The date when the proceeds of a bill of
exchange (e.g., a check) or ofa foreign-exchange trans
action (e.g., a sale ofdollars for euros) become available
for use. Also termed here and there.
valued policy. See INSURANCE POLICY.
valued-policy law. A statute requiring insurance com
panies to pay the full amount of the insurance to the
insured in the event of a total loss, regardless of the
true value ofthe property at the time ofloss. [Cases:
Insurance ~"::>2171.1
value fund. See MUTUAL FUND.
valuer. See APPRAISER.
value received. (17c) Consideration that has been deliv
ered. -This phrase is commonly used in a bill of
exchange or promissory note to show that it was sup
ported by consideration. [Cases: Bills and Notes C=:'
12,40,90,98.] valuta (v;:l-loo-td), n. [Italian fro Latin] Value; worth;
esp., the value of a currency in relation to that of the
currency ofsome other country.
valvasor (valv-d-sor), n. [Law Latin] Hist. A princi
pal vassal who, though not holding directly of the
sovereign, held of those who did so; a vassal of the
second degree or rank. Also spelled valvassor. See
VAVASOR.
VA mortgage. See MORTGAGE.
vandal. [fro Latin Vandalus, a member ofthe Germanic
tribe known as Vandals] (17c) A malicious destroyer
or defacer of works of art, monuments, buildings, or
other property.
vandalism, n. (ISc) 1. Willful or ignorant destruction of
public or private property, esp. ofartistic, architectural,
or literary treasures. 2. The actions or attitudes of one
who maliciously or ignorantly destroys or disfigures
public or private property; active hostility to anything
that is venerable or beautifuL -vandalize, vb. -van
dalistic, adj.
vara (vah-rah)_ Spanish-Am. law. A measure oflength
equal to about 33 inches. -Local usage varies, so that a
vara may sometimes be more and sometimes less than
33 inches. In Mexican land grants, the measure is equal
to 32.9927 inches. The term is often found in old land
grants in states that were formed from land governed
by Spain or Mexico.
variable annuity. See ANNUITY.
variable annuity contract. See CONTRACT.
variable cost. See COST (I).
variable life insurance. See LIFE INSURANCE.
variable rate. See INTEREST RATE.
variable-rate mortgage. See adjustable-rate mortgage
under MORTGAGE.
variance. (I4c) 1. A difference or disparity between two
statements or documents that ought to agree; esp., in
criminal procedure, a difference between the allega
tions in a charging instrument and the proof actually
introduced at trial. Also termed variation. [Cases:
Indictment and Information ~"::>171.]
fatal variance. (I8c) A variance that either deprives
the defendant of fair notice of the charges or exposes
the defendant to the risk ofdouble jeopardy. - A fatal
variance is grounds for reversing a conviction. [Cases:
Indictment and Information C=:' 171.J
immaterial variance. (iSc) A variance too slight
to mislead or prejudice the defendant and is thus
harmless error. [Cases: Indictment and Information
2. A license or official authorization to depart from a
zoning law. Also termed (in sense 2) zoning variance.
See HARDSHIP (4). Cf. SPECIAL EXCEPTION (2); SPE
CIAL-USE PERMIT. [Cases: Zoning and Planning (;='
481-549.]
area variance. A variance permitting deviation
from zoning requirements about construction and
1693 vein
placement, but not from requirements about use.
[Cases: Zoning and Planning (:::::>503.]
use variance. A variance permitting deviation from
zoning requirements about use. lCases: Zoning and
Planning (:::::>481.]
varrantizatio (v~-ran-ti-zay-shee-oh), n. [Law Latin]
Hist. Scots law. A warranty.
vas (vas), n. [Latin "surety"] A pledge, surety, bail |
law. A warranty.
vas (vas), n. [Latin "surety"] A pledge, surety, bail; esp.,
in early law, security for a criminal defendant's appear
ance in court. In Roman law under the legis actio
procedure, a vas was a special surety for the defendant if
there was an adjournment in jure. PI. vades (vay-deez).
See IN JURE (2); LEGIS ACTIO.
vassal (vas-eli), n. [fro Law Latin vassallus] Hist. The
grantee of a fief, feud, or fee; a feudal tenant. Cf.
FREEMAN (5).
arriere vassal (a-ree-air vas-dl). Hist. lhe vassal of a
vassal.
vassalage (vas-ell-ij), n. Hist. 1. The state ofbeing a vassal
or feudatorv. Also termed vasseleria. 2. The service
required o(a vassal. Also termed vassaticum; main
rent. 3. lhe territory held by a vassal; a fief or fee. 4.
Vassals collectively. 5. The dominion or authority ofa
feudal superior over vassals. 6. Political servility; sub
jection.
vassalli ligii (vas-~-lr lij-ee-I). [Law Latin] His!. Vassals
holding immediately of the Crown.
vassallo et quibus dederit (vas-el-Ioh et kwib-els dee
ddT-it). [Law Latin] Hist. To the vassal and to whomso
ever he shall have given it. The phrase was included
in feudal grants.
"If the original grant had been destined to the vassal, 'and
his heirs and assignees whomsoever.' this only bound the
superior to receive the proper hei rs of the vassal and not
his assignee; but if the destination bore ... [vassal] 'et
quibus dederit.' this was construed as a consent on the
part of the superior to alienation, and under which he was
bound to receive as vassal his vassal's disponee. This dis
tinction ... was practically abolished by the Act 20 Geo.
II. c. 50, which introduced a mode by which either an heir
or disponee could force an entry from the superior.' John
Trayner, Trayner's Latin Maxims 622 (4th ed. 1894).
vassallo faciendo superiori quod de jure facere oportet
(vas-a-Ioh fay-shee-en-doh s[y]oo-peer-ee-or-r kwod
dee joor-ee fay-sa-ree d-por-tet). [Law Latin] Hist.
Upon the vassal performing that to the superior which,
according to law, he ought to perform.
vassallus (vas-d-Ids), n. Latin] Hist. A feudal tenant.
Cf. VASSUS.
vassal state. Int'llaw. A state that possesses only those
rights and privileges that have been granted to it by a
more powerful state.
vassaticum (va-sat-a-kam). [Law Latin] See VASSALAGE
(2).
vasseleria (vas-a-Ieer-ee-a). [Law Latin] See VASSALAGE
(1).
vassus (vas-els), n. [Law Latin] Hist. A feudal tenant who
held immediately of the king. Cf. VASSALLUS. vasto. See DE VASTO.
vastum (vas-telm), n. Hist. WASTE.
vastum forestae vel bosci (vas-telm for-es-tee vel
bahs-I). Hist. Waste ofa forest or wood.
VAT. See value-added tax under TAX.
vauderie (vaw-ddr-ee). Hist. Sorcery; witchcraft.
Vaughn index. A comprehensive list of all documents
that the government wants to shield from disclosure
in Freedom ofInformation Act (FOrA) litigation, each
document being accompanied by a statement of jus
tification for nondisclosure . Supported by one or
more affidavits, a Vaughn index has three purposes:
(1) forcing the government to scrutinize all material
withheld; (2) enabling the trial court to fulfill its duty
of ruling on the factual basis of each claimed FOIA
exemption; and (3) enabling the adversary system to
operate by giving the as much information as
possible. 5 USCA et seq. The name derives from
Vaughn V. Reese, 484 F.2d 820 (D.C. Cir. 1973). [Cases:
Records 62.]
vavasor (vav-a-sor), n. [Law Latin] Hist. The vassal or
tenant ofa baron; one who held under a baron and also
had subtenants. Also spelled vavasour (vav-el-suur).
Cf. VALVASOR.
vavasory (vav-el-sor-ee), n. [fro Law Latin vavasoriaJ Hist.
The lands held by a vavasor.
VAWA. abbr. VIOLENCE AGAINST WOMEN ACT.
Vc. abbr. VICE-CHA;\fCELLOR.
vec. abbr. VICE-CHANCELLOR'S COURT.
v.e. abbr. VENDITIONI EXPONAS.
veal-money. Hist. The annual rent paid by tenants ofthe
manor of Bradford, in the county of Wiltshire, in lieu
ofveal formerly paid in kind.
vectigal (vek-tI-gal), n. Roman & civil law. 1. A tax,
esp. an import or export duty, paid to the state. 2. An
annual ground rent paid in kind or in money. PI. l'ec
tigalia (vek-tel-gay-lee-d).
vectigal judiciarium (vek-tI-gal joo-dish-ee-air-ee-am),
n. A tax or fine to defray the expenses ofmaintaining
courts ofjustice. PI. vectigalia judiciaria.
vedura (vek-t[yJoor-d). Hist. Maritime law. Freight.
veggie-libellaw. Slang. See AGRICULTURAL-DISPARAGE
MENTLAW.
vehicle (vee-a-bl), n. 1. An instrument oftransportation
or conveyance. 2. Any conveyance used in transporting
passengers or things by land, water, or air.
vehicular (vee-hik-Yd-lar), adj. Of, relating to, or caused
by a vehicle or vehicles.
vehicular homicide. See HOMICIDE.
veil-piercing. See PIERCING THE CORPORATE VEIL.
vein, n. Mining law. A continuous body of mineral or
mineralized rock, filling a seam or fissure in the earth's
crust, within defined boundaries that clearly separate
it from surrounding rock.
discovery vein. The primary vein for the purpose of
locating a mining claim. [Cases: Mines and Minerals
(;=e 16,30-33.]
vejour (vd-zhoor), n. [Law French fr. Law Latin visores
"viewers"] Hist. 1. One of several persons sent by the
court to examine a place in question to help in the
decision-making process. 2. A person sent to visit
persons who claim they are unable to appear in court
on account of illness, to see whether they are actually
so sick that they cannot appear or whether they are
malingering. -Also spelled veyor; veyour; vayowr;
veiour; veighor.
velfaciendo vel delinquendo (vel fay-shee-en-doh vel
dee-ling-kwen-doh). [Law Latin] Hist. Either by doing
something or by leaving something undone. The
phrase appeared in reference to what was accomplished
by act or omission.
vel non (vel non). [Latin "or not"] (1895) Or the absence
ofit (or them) <this case turns solely on the finding of
discrimination vel non>.
venal (vee-ndl), adj. (I7c) 1. (Of a person) capable of being
bribed. 2. Ready to sell one's services or influence for
money or other valuable consideration, usu. for base
motives. 3. Of, relating to, or characterized by corrupt
bargaining. 4. Broadly, purchasable; for sale.
vend, vb. (17c) 1. To transfer to another for money or
something else of value. The term is not commonly
applied to real estate, although its derivatives (vendor
and vendee) are. 2. To make an object of trade, esp.
by hawking or peddling. 3. To utter publicly; to say or
state; to publish broadly.
vendee. (16c) A purchaser, usu. ofreal property; a buyer.
[Cases: Vendor and Purchaser (;=e 1.]
vendee's lien. See LIEN.
vendetta (ven-det-d), n. (1855) A private blood feud in
which family members seek revenge on one or more
persons outside the family (often members of another
family); esp., a private war in which the nearest of kin
seek revenge for the slaying ofa relative.
vend. ex. abbr. VENDITIONI EXPONAS.
vendible, adj. Salable; fit or suitable to be sold.
venditae (ven-dd-tee). [fr. Latin vendere "to sell"] Hist. A
tax on things sold in markets and at public fairs.
venditio (ven-dish-ee-oh). [Latin] Roman & civil law. 1.
A sale; VENDITION. 2. A contract ofsale. In this sense,
the term is short for emptio et venditio. See EMPTIO. 3.
Broadly, any contract by which the ownership ofsome
thing may be transferred for value. PI. venditiones.
venditio corporis (ven-dish-ee-oh kor-p'His). A sale of
a specific thing. -Also termed venditio speciei.
venditio generis (ven-dish-ee-oh jen-d-ris). A sale of
goods of a class or general kind.
venditio nominis (ven-dish-ee-oh nom-d-nis). A sale
or conveyance ofa debt.
venditio speciei (ven-dish-ee-oh spee-shee-I). See
venditio corporis. vendition, n. The act of selling; a sale. -Also termed
venditio.
venditioni exponas (ven-dish-ee-oh-m eks-poh-nds).
[Latin "you are to expose for sale"] A writ ofexecution
requiring a sale of particular goods to be made . The
writ is directed to a sheriff who has levied upon goods
under a fieri facias but has reported that the goods
remain unsold for lack of buyers. In some jurisdic
tions, a venditioni exponas is issued to require a sale of
property seized under an earlier writ, after the property
has been condemned or passed upon by inquisition. -
Abbr. vend. ex.; v. [Cases: Execution (;=e217.]
venditor (ven-dd-tdr), n. Hist. See VENDOR.
venditor regis (ven-dd-tdr ree-jis). [Latin] Hist. The king's
seller; esp., the person who sold goods and chattels that
had been seized or distrained to answer a debt due to
the king.
venditrix (ven-dd-triks), n. Hist. A female vendor.
vendor. A seller, usu. of real property. -Also termed
venditor. [Cases: Vendor and Purchaser (;=e 1.]
itinerant vendor. A vendor who travels from place to
place selling goods. [Cases: Licenses (;=e 15(2).]
vendor's lien. See LIEN.
vendue (ven-d[y]oo or ven-d[y]oo). Hist. 1. A sale; esp.,
a sale at public auction. 2. See execution sale under
SALE.
vendue master. Hist. See AUCTIONEER.
venereal disease. See SEXUALLY TRANSMITTED
DISEASE.
venery (ven-d-ree). Archaic. 1. Hunting. 2. Sexual inter
course.
Venetian patent statute. Hist. A law enacted in Venice
in 1474, giving an inventor the exclusive right to make
and use an invention for 10 years. This was the first
known patent law, with procedures for securing and
enforcing the inventor's right to exclude others from
working, using, or benefiting from the invention.
venia (vee-nee-d), n. [Latin] Hist. 1. A penitent's kneeling
or assuming a prostrate position on the ground. 2. A
pardon. 3. The granting of a privilege. PI. veniae.
venia aetatis (vee-nee-d i-tay-tis). Roman & civil law.
A privilege granted by a prince or sovereign by virtue
ofwhich an underage person is entitled to legally act
and be treated as ifhe or she were offull age.
venial (vee-nee-dl), adj. (14c) (Of a transgression) forgiv
able; pardonable.
venire (vd-nI-ree or -neer-ee or -nIr or -neer). (1807) 1. A
panel ofpersons selected for jury duty and from among
whom the jurors are to be chosen. -Also termed array;
jury panel;jury pool. [Cases: Jury~'60-69.]
special venire. A panel of citizens summoned when
there is an unexpected need for a larger pool from
which to select jurors, or a panel summoned for a
particular (usu. capital) case. [Cases: Jury (;=e70.]
2. VENIRE FACIAS.
1695
venire de novo. See venire facias de novo under VENIRE
FACIAS.
venire facias (v;J-nI-ree [or -neer-ee or -nn or -neer]
fay-shee-;Js). (ISc) A writ directing a sheriff to assemble
a jury. -Often shortened to venire. -Also termed
venire facias juratores (ju |
to assemble
a jury. -Often shortened to venire. -Also termed
venire facias juratores (juur-;J-tor-eez). [Cases: Jury
P67.]
venire facias ad respondendum (ad ree-spon-den
d;Jm). A writ requiring a sheriff to summon a person
against whom an indictment for a misdemeanor has
been issued. A warrant is now more commonly
used.
venire facias de novo (dee or di noh-voh). (18c) A writ
for summoning a jury panel anew because of some
impropriety or irregularity in the original jury's
return or verdict such that a judgment cannot be
entered on it. The result of a new venire is a new
trial. In substance, the writ is a motion for a new trial,
but when the party objects to the verdict because ofa
procedural error (and not an error on the merits), the
form of motion was traditionally for a venire facias de
novo. -Often shortened to venire de novo.
venire facias tot matronas (tot m;J-troh-n;Js). A writ
requiring a sheriff to summon a jury of matrons to
execute a writ de ventre inspiciendo. See DE VENTRE
INSPICIENDO.
veniremember (v;J-nI-ree-mem-bJr or V;J-neer-ee- or
v;J-neer-). (1966) A prospective juror; a member of a
jury panel. -Also termed venireman; venireperson;
talesman. See TALESMAN.
venit et defendit (vee-nit et di-fen-dit). [Latin] Comes
and defends . The phrase appeared in old-style defen
sive pleadings.
venit et dicit (vee-nit et dI-sit). [Latin] Comes and says .
The phrase appeared in old-style pleadings. Remnants
of the phrase still occur in some American jurisdictions:
Now comes the plaintiff, and respectfully says . ...
vente (vawnt or vont). [French] French law. A sale;
contract of sale.
vente aleatoire (a-IaY-;J-twahr). A sale subject to an
uncertain event.
vente aremere (ah ray-may-ray). A conditional sale, in
which the seller reserves the right to redeem or repur
chase the property at the same price . The term is
used in Louisiana and in some parts of Canada.
vente aux encheres (oh-zawn-shair). An auction. See
AUCTION.
venter (ven-tJr), n. [Latin "womb"] 1. The womb of a
wife or mother. 2. One of two or more women who are
sources of the same man's offspring.
"venter ... is a term nowadays considered objectionable,
as it refers to the woman merely as the possessor of a birth
canal." Bryan A. Garner, A Dictionary ofModem Legal Usage
910 (2d ed. 1995).
ventre inspiciendo. 1. See DE VENTRE INSPICIENDO;. 2.
See venire facias tot matronas under VENIRE FACIAS. veracity
venture. (16c) An undertaking that involves risk;
esp., a speculative commercial enterprise. Cf. JOINT
VENTURE.
venture capital. See CAPITAL.
venturer, n. (16c) 1. One who risks something, and hopes
to gain more, in a business enterprise. 2. One who par
ticipates in an association of two or more parties in a
business enterprise. See JOINT VENTURE.
venue (ven-yoo). [Law French "coming"] (16c) Procedure.
1. The proper or a possible place for a lawsuit to proceed,
usu. because the place has some connection either with
the events that gave rise to the lawsuit or with the plain
tiffor defendant. [Cases: Federal Courts P71; Venue
P 1.5.] 2. The territory, such as a country or other
political subdivision, over which a trial court has juris
diction. Cf. JURISDICTION (1), (2). 3. Loosely, the place
where a conference or meeting is being held. 4. In a
pleading, the statement establishing the place for trial.
[Cases: Federal Courts P94.] 5. In an affidavit, the
designation of the place where it was made.
"Venue must be carefully distinguished from jurisdiction.
Jurisdiction deals with the power of a court to hear and
dispose of a given case; in the federal system, it involves
questions of a constitutional dimension concerning the
basic division of judicial power among the states and
between state and federal courts. Venue is of a distinctly
lower level of importance; it is simply a statutory device
designed to facilitate and balance the objectives of
optimum convenience for parties and witnesses and effi
cient allocation of judicial resources." Jack H. Friedenthal
et aI., Civil Procedure 2.1, at 10 (2d ed. 1993).
"The distinction must be clearly understood between
jurisdiction, which is the power to adjudicate, and venue,
which relates to the place where judicial authority may
be exercised and is intended for the convenience of the
litigants. It is possible for jurisdiction to exist though venue
in a particular district is improper, and it is possible for a
suit to be brought in the appropriate venue though it must
be dismissed for lack ofjurisdiction. The most important
difference between venue and jurisdiction is that a party
may consent to be sued in a district that otherwise would
be an improper venue, and it waives its objection to venue
if it fails to assert it promptly. This is in striking contrast to
subject-matter jurisdiction, which cannot be conferred by
the parties, if it has not been granted by Congress, whether
by consent, waiver, or estoppel." Charles Alan Wright, The
Law ofFederal Courts 42, at 257 (5th ed. 1994).
venue, change of. See CHANGE OF VENUE.
venue facts. (1936) Facts that need to be pleaded or
established in a hearing to determine whether venue
is proper in a given court. [Cases: Federal Courts P
96; Venue P68.]
venville (ven-vil), n. Hist. A tenure peculiar to the area of
Dartmoor forest in Devonshire, whereby tenants have
certain rights in the forest.
veracious (v;J-ray-shJs), adj. (17c) Truthful; accurate.
Also termed veridical.
veracity (v;J-ras-;Jt-ee), n. (17c) 1. Truthfulness <the
witness's fraud conviction supports the defense's chal
lenge to his veracity>. 2. Accuracy <you called into
question the veracity of Murphy's affidavit>. -vera
cious (v;J-ray-sh;Js), adj.
veray 1696
veray (va-ray), adj. [Law French] Hist. True. This word
is an older form of the French vrai.
verba (var-ba). [Latin] n. pI. Words -esp. oral as
opposed to written words.
verba concepta. 1. See FORMULA (1). 2. See FORMULAE.
verba jactantia (var-ba jak-tan-shee-a). [Law Latin] Hist.
Boastful words . These words -esp. in a marriage
declaration -are not usu. binding. See JACTITATION
OF MARRIAGE.
verbal, adj. (15c) 1. Of, relating to, or expressed in words.
2. Loosely, of, relating to, or expressed in spoken
words.
verbal, n. English law. Slang. A statement, usu. oral and
often incriminating, allegedly made by a criminal
defendant and offered as evidence against the defen
dant at trial. The term often implies that a police
officer inaccurately recorded or invented a defendant's
statement <the defense counsel challenged the verbals
presented by the police>.
verbal, vb. English law. Slang. To improperly pressure a
person to make a statement, esp. one that is damaging
or false <the defendant recanted and claimed that he
had been verbaled>.
verbal abuse. See ABUSE.
verbal act. See ACT (2).
verbal-act doctrine. (1901) The rule that utterances
accompanying conduct that might have legal effect are
admissible when the conduct is material to the issue
and is equivocal in nature, and when the words help
give the conduct its legal significance. [Cases: Criminal
Law (:::::>419(2.10); Evidence (:::::>267.]
verbal contract. See parol contract (1) under CONTRACT.
verbal note. Diplomacy. An unsigned memorandum
informally reminding an official ofa pending request,
an unanswered question, or the like.
vertical stare decisis. See STARE DECISIS.
verbal will. See nuncupative will under WILL.
verba precaria (var-ba pri-kair-ee-a). [Latin] Civil law.
1. Precatory words. 2. Words oftrust; words ofrequest
used in creating a trust.
verba solennia (var-ba sa-Ien-ee-a). [Latin] Hist. Solemn
words; formal words. -Also termed verba solemnia
(sa-Iem-nee-a).
verbatim (var-bay-tam), adj. & adv. [fro Latin verbum
"word"] Word for word. Courts have repeatedly
held that, in the context of the requirement that a trial
record must be "verbatim," absolute word-for-word
accuracy is not necessary -and insubstantial omis
sions do not make a transcript "nonverbatim." [Cases:
Military Justice 1354, 1356.]
verbatim ac litteratim (var-bay-tim ak lit-a-ray-tim),
adv. (var-bay-tim ak li-tar-ay-tim). [Latin] Word for
word and letter for letter. -Also spelled verbatim ac
literatim; verbatim et literatim. -Also termed verbatim
et litteratim. verbi gratia (var-bI gray-shee-a). [Latin "for example"]
Words for the sake of example. -Abbr. Y.G.
verbruikleening (ver-bruuk-layn-ing), n. Roman Dutch
law. A loan for use; COMMODATUM.
verderer (var-dar-ar), n. [fr. French verdier "caretaker
of green things"] Hist. A judicial officer who, being in
charge of the king's forest, is sworn to preserve the vert
(foliage) and venison, to keep the assizes, and to view,
receive, and enroll attachments and presentments on
matters involving trespass. -Also spelled verderor.
"In all the forests there were a varying number of officers
(usually four) elected in the county court, and styled Ver
derers. Manwood says that they should be 'gentlemen of
good account, ability, and living, and well learned in the
laws of the forest: Their chief duty was to attend the forest
courts; they served gratuitously; and they were immedi
ately responsible to the crown. Possibly they were regarded
as a check upon the Warden, as the coroner was upon the
sheriff." 1 William Holdsworth, A History ofEnglish Law 96
(7th ed. 1956).
verdict. (15c) 1. A jury's finding or decision on the
factual issues of a case. [Cases: Criminal Law (:::::>
870-894; Federal Civil Procedure (:::::>2191; Trial ~
318.] 2. Loosely, in a nonjury trial, a judge's resolution
of the issues of a case. [Cases: Federal Civil Procedure
(:::::>2251; Trial ~387.]
chance verdict. (1820) A now-illegal verdict, arrived
at by hazard or lot. -Also termed gambling verdict;
verdict by lot. [Cases: Criminal Law (:::::>798(2),866;
Federal Civil Procedure ~1974.1; Trial (:::::>315.]
compromise verdict. (1851) A verdict reached when
jurors, to avoid a deadlock, concede some issues so
that other issues will be resolved as they want. [Cases:
Criminal Law ~866; Federal Civil Procedure ~
1974.1; Trial ~315.]
defective verdict. (18c) A verdict on which a judgment
cannot be based because of irregularities or legal
inadequacies.
directed verdict. (1912) A ruling by a trial judge taking
a case from the jury because the evidence will permit
only one reasonable verdict. -Also termed instructed
verdict. [Cases: Criminal Law ~753; Federal Civil
Procedure ~2117; Trial ~167.]
excessive verdict. (1817) A verdict resulting from
the jury's passion or prejudice and thereby shocks
the court's conscience. [Cases: Damages (:::::> 127.9;
Federal Civil Procedure (:::::>2194.1, 2345; New Trial
(:::::>77(2).]
false verdict. Archaic. A verdict so contrary to the
evidence and so unjust that the judge may set it
aside.
gambling verdict. See chance verdict.
general verdict. (17c) A verdict by which the jury finds
in favor ofone party or the other, as opposed to resolv
ing specific fact questions. Cf. special verdict. [Cases:
Criminal Law (:::::>881; Federal Civil Procedure (:::::>
2191; Trial (:::::>318.]
1697
general verdict subject to a special case. Archaic. A
court's verdict rendered without regard to the jury's
general verdict, given when a party does not want to
put the legal question on the record but merely wants
the court to decide on the basis ofa written statement
ofall the facts in the case, prepared for the opinion of
the court by counsel on either side, according to the
principles of a special verdict, whereupon the court |
of
the court by counsel on either side, according to the
principles of a special verdict, whereupon the court
decides the special case submitted and gives judgment
accordingly.
general verdict with interrogatories. (1878) A general
verdict accompanied by answers to written inter
rogatories on one or more issues offact that bear on
the verdict. [Cases: Federal Civil Procedure C:=>2211;
Trial
guilty verdict. (I8c) A jury's finding that a defendant is
guilty of the offense charged.
instructed verdict. See directed verdict.
joint verdict. (1825) A verdict covering two or more
parties to a lawsuit.
legally inconsistent verdict. (1975) A verdict in which
the same element is found to exist and not to exist, as
when a defendant is acquitted ofone offense and con
victed ofanother, even though the offenses arise from
the same set of facts and an element of the second
offense requires proofthat the first offense has been
committed. -Also termed legal inconsistency. Cf.
repugnant verdict. [Cases: Criminal Law C:=>878(4);
Federal Civil Procedure Trial C:=>358.]
majority verdict. A verdict agreed to by all but one or
two jury members. In some jurisdictions, a civil
verdict supported by 10 of 12 jurors is acceptable.
[Cases: Federal Civil Procedure Trial
321.5.]
open verdict. A verdict ofa coroner's jury finding that
the subject "came to his death by means to the jury
unknown" or "came to his death at the hands of a
person or persons to the jury unknown." This verdict
leaves open either the question whether any crime was
committed or the identity ofthe criminal.
partial verdict. (1829) A verdict by which a jury finds
a criminal defendant not guilty ofsome charges and
guilty ofother charges.
perverse verdict. (1870) A juryverdict so contrary to
the evidence that it justifies the granting of a new
trial. [Cases: Federal Civil Procedure C:=>2338; New
Trial <>68.1.]
privy verdict (priv-ee). Hist. A verdict given after the
judge has left or adjourned the court, and the jury,
having agreed, obtains leave to give its verdict pri
vately to the judge out ofcourt so that the jurors can
be delivered from their confinement. -Such a verdict
was of no force unless afterwards affirmed in open
court. 'Ihis practice has been superseded by that of
rendering a sealed verdict. See sealed verdict.
public verdict. (17c) A verdict delivered by the jury in
open court. veredicto
quotient verdict. (1867) An improper damage verdict
that a juryarrives at by totaling what each juror would
award and dividing by the number ofjurors. [Cases:
Federal Civil Procedure Trial C::>31S.]
repugnant verdict. (1883) A verdict that contradicts
itselfin that the defendant is convicted and acquitted
ofdifferent crimes having identical elements . Some
times the inconsistency occurs in a Single verdict
(repugnant verdict), and sometimes it occurs in two
separate verdicts (repugnant verdicts). Both terms
are used mainly in New York. Cf.legally inconsistent
verdict. [Cases: Criminal Law C:=>878(4).]
responsive verdict. Civil law. A verdict that properly
answers the indictment with specific findings pre
scribed by statute, the possible findings being guilty,
not guilty, and guilty ofa lesser included offense.
sealed verdict. (18c) A written verdict put into a
sealed envelope when the jurors have agreed on their
decision but court is not in session or the jury is con
tinuing to deliberate other counts. Dpon delivering
a sealed verdict, the jurors may separate. When court
convenes again, this verdict is officially returned with
the same effect as ifthe jury had returned it in open
court before separating. [Cases: Trial C:=>324.]
special verdict. (I7c) A verdict in which the jurymakes
findings only on factual issues submitted to them by
the judge, who then decides the legal effect of the
verdict. See Fed. R. Civ. P. 49. Cf. general verdict.
[Cases: Criminal Law (,'=870; Federal Civil Proce
dure C:=>2231; Trial
split verdict. (1886) 1. A verdict in which one party
prevails on some claims, while the other party prevails
on others. 2. Criminal law. A verdict finding a defen
dant guilty on one charge but not guilty on another.
[Cases: Criminal LawC=878.] 3. Criminal law. A
verdict ofguilty for one defendant and of not guilty
for a codefendant. [Cases: Criminal Law (;::::>877.]
true verdict. (16c) A verdict that is reached volun
tarily -even if one or more jurors freely compro
mise their views -and not as a result ofan arbitrary
rule or order, whether imposed by the jurors them
selves, the court, or a court officer. [Cases: Trial
314,315.]
verdict by lot. See chance verdict.
verdict contrary to law. (18c) A verdict that the law
does not authorize a jury to render because the con
clusion drawn is not justified by the evidence.
Also termed wrong verdict. Cf. JURY NULLIFICATION.
[Cases: Federal Civil Procedure C:=>2338; New Trial
C:=>66.]
verdict subject to opinion ofcourt. (1820) A verdict that
is subject to the court's determination ofa legal issue
reserved to the court upon the trial, so that judgment
is ultimately entered depending on the court's ruling
on a point oflaw. [Cases: Judgment C='199(4).]
wrong verdict. See verdict contrary to law.
veredicto. See NON OBSTANTE VEREDICTO.
1698 veredictum
veredictum (ver-a-dik-tam), n. Hist. A verdict; a decla
ration of the truth ofa matter in issue, submitted to a
jury for trial.
verge (varj), n. Hist. 1. The area within 12 miles of
the place where the king held his court and within
which the king's peace was enforced. -This area was
commonly referred to as being in the verge. Ihe verge
got its name from the staff (called a "verge") that the
marshal bore. 2. The compass ofthe royal court, within
which the lord steward and marshal ofthe king's house
hold had special jurisdiction. Also termed (in senses
1 & 2) Court ofVerge. 3. The neighborhood of White
hall, the section ofLondon in which British government
offices have traditionally been located. 4. An uncertain
quantity ofland from 15 to 30 acres. 5. A stick or rod
by which a person, after holding the stick and swearing
fealty, is admitted as a tenant to a copyhold estate.
Also spelled virge. For tenant by the verge, see copy
HOLDER.
vergens ad inopiam (v<lr-jenz ad in-oh-pee-am), adj.
[Latin "verging on poverty"] Civil law. Tending to
become insolvent.
"When a debtor is clearly vergens ad inopiam, a creditor
may legally resort to certain measures, for the purpose
of protecting his interests, which would not otherwise be
competent to him. Thus if the debtor be bound under a bill,
the creditor may, in consideration of his debtor's circum
stances, obtain a precept of arrestment on the bill before
it becomes due, on which he may arrest any funds due to
his debtor. As this proceeding is only allowed, however, as
a protective measure ... he cannot ... render the arrested
funds available to himself until the bill falls due .... The
fact of the debtor's being vergens ad inopiam will be
inferred from different circumstances in different cases,
and the proof of that fact will also, necessarily, be varied."
John Trayner, Trayner's Latin Maxims 627 (4th ed. 1894).
verger, n. One who carries a verge (a rod) as an emblem
ofoffice; esp., an attendant on a bishop or justice.
veridical (va-rid-a-bl). See VERACIOUS.
verification, n. (l6c) 1. A formal declaration made in
the presence ofan authorized officer, such as a notary
public, or (in some jurisdictions) under oath but not
in the presence ofsuch an officer, whereby one swears
to the truth of the statements in the document. -Tra
ditionally, a verification is used as a conclusion for all
pleadings that are required to be sworn. Cf. ACKNOWL
EDGMENT (4). Also termed affidavit ofverification.
[Cases: Acknowledgment <::'-",8; Federal Civil Proce
dure (:::J662; Pleading (:::J289-304.] 2. An oath or
affirmation that an authorized officer administers to
an affiant or deponent. 3. Loosely, ACKNOWLEDGMENT
(5).4. See certified copy under COPY. 5. CERTIFICATE
OF AUTHORITY (1). 6. Any act of notarizing. Cf. JURAT
(1). verify, vb. verifier, n.
verified copy. See certified copy under cOPY.
verified non est factum. See ~Ol\' EST FACTUM.
verify, vb. 1. To prove to be true; to confirm or estab
lish the truth or truthfulness of; to authenticate. 2. To
confirm or substantiate by oath or affidavit; to swear
to the truth of. verily, adv. Archaic. Truly; in fact; certainly.
veritas (ver-i-tas or -tahs), n. [Latin] 1. Truth. 2. (cap.)
An international institution of maritime underwrit
ers for the survey and rating of vessels. -Founded in
Belgium in 1828, it moved to Paris in 1832 and has long
been represented all over the world. -Also termed
Bureau Veritas.
veritas convicii (ver-i-tas bn-vish-ee-I). [Law Latin]
Hist. The truth ofthe accusation. -The phrase appeared
in reference to a defense in a defamation action.
verity (ver-<1-tee). (14c) Truth; truthfulness; conformity
to fact.
vermenging(v<1r-meng-ing), n. [Dutch "mingling"] The
extinction ofa debt when the debtor's and the creditor's
interests merge, as in a corporate merger.
verna (v<lr-n<1). Hist. A slave born in the slaveholder's
house.
versans in illicito (v<lr-sanz in i-lis-i-toh). [Latin] Hist.
Engaged in some unlawful occupation.
versari (vdf-sair-I), vb. [Latin] I. To be employed. 2. To
be conversant
versari in re illicita (var-sair-I in ree i-lis-a-ta). [Latin]
To be engaged in an unlawful activity (as a bar to a
claim for damages).
versus, prep. (l5c) Against. Abbr. v.; vs.
vert (vaet). Hist. 1. Anything that grows and bears green
leaves within a forest. 2. A power, given by royal grant,
to cut green wood in a forest
vertical competition. See COMPETITION.
vertical equality. In per capita distribution ofan estate,
parity of distribution among children's families. See
PER CAPITA. Cf. HORIZONTAL EQUALITY.
vertical trust. Antitrust. A combination that gathers
together under a single ownership a number of busi
nesses or plants engaged in successive stages of pro
duction or marketing. [Cases: Antitrust and Trade
Regulation
vertical union. See industrial union under UNION.
verus (veer-<1s), adj. [Latin] True; truthful; genuine;
actuaL
very heavy work. See WORK (1).
VESA. abbr. VIDEO ELECTRONICS STA~DARDS ASSOCIA
TION.
vessel. A ship, brig, sloop, or other craft used -or capable
of being used to navigate on water. -To qualify as
a vessel under the Jones Act, the structure's purpose
1699
must to some reasonable degree be to transport pas
sengers, cargo, or equipment from place to place across
navigable waters. [Cases: Shipping (;::::> 1.]
"Despite the important role a 'vessel' plays in maritime
law, there is no settled definition of the term. Congress
has defined a vessel as including 'every description of
watercraft or other artificial contrivance used, or capable
of being used, as a means of transportation on water.'
1 U.S.C.A. 3. The Supreme Court has defined vessels
as 'all navigable structures intended for transportation.'
Cope v. Vallette Dry-Dock Co., 119 U.S. 625 (1887)." Frank
L Maraist, Admiralty in a Nutshell 14 (3d ed. 1996).
"The term vessel is defined in 1 U.S.c. 3 as follows: 'The
word "vessel" includes every description of watercraft or
other artificial contrivance used, or capable of being used,
as a means of transportation on water.' This definition
has not been very influential in admiralty and maritime
cases. Litigants contending for vessel status often invoke
its remarkable breadth. Those opposing vessel status
typically respond, 'But the present context indicates oth
erwise: When courts mention the definition favorably, it
usually seems to be a makeweight argument." David W.
Robertson, Steven F. Friedell & Michael F. Sturley, Admiralty
and Maritime Law in the United States 59 (2001).
foreign vessel. A vessel owned by residents of, or sailing
under the flag of, a foreign nation. [Cases: Shipping
Jones Act vessel. A vessel whose crew members can
qualify as seamen under the Jones Act; esp., a craft
designed or used for transporting cargo or people on
navigable waters, or that was being used for navig |
; esp., a craft
designed or used for transporting cargo or people on
navigable waters, or that was being used for naviga
tion at the time of a worker's injury. See JONES ACT.
[Cases: Shipping
public vessel. A vessel owned and used by a nation or
government for its public service, whether in its navy,
its revenue service, or otherwise. See PUBLIC VESSELS
ACT. [Cases: United States (;::::> 125(1 1).J
seagoing vessel. A vessel that -considering its design,
function, purpose, and capabilities is normally
expected both to carry passengers for hire and to
engage in substantial operations beyond the boundary
line (set by the Coast Guard) dividing inland waters
from the high seas. -Typically excluded from the def
inition are pleasure yachts, tugs and towboats, fishing
boats, and other vessels that do not carry passengers
for hire. [Cases: Shipping C=c204.j
seaworthy vessel. A vessel that can withstand the
ordinary stress ofthe wind, waves, and other weather
that seagOing vessels might ordinarily be expected
to encounter. -In some legal contexts, the question
whether a vessel is seaworthy includes the question
whether it is fit to carry an intended cargo properly.
Under federal maritime law, a vessel's owner has the
duty to proVide a crew with a seaworthy vessel. See
SEAWORTHY. [Cases: Seamen Shipping
121,207.J
vest, vb. (l5c) 1. To confer ownership (of property) upon
a person. 2. To invest (a person) with the full title to
property. 3. To give (a person) an immediate, fixed
right of present or future enjoyment. 4. Hist. To put
(a person) into possession of land by the ceremony of
investiture. vesting. n. vestita manus
vested, adj. (18c) Having become a completed, consum
mated right for present or future enjoyment; not con
tingent; unconditional; absolute <a vested interest in
the estate>. [Cases: Estates in Property C=.> 1.]
"[Ujnfortunately, the word 'vested' is used in two senses.
Firstly, an interest may be vested In possession, when there
is a right to present enjoyment, e.g. when I own and occupy
Blackacre. But an interest may be vested, even where it
does not carry a right to immediate possession, if it does
confer a fixed right of taking possession in the future."
George Whitecross Paton, A Textbook ofJurisprudence 305
(G.W. Paton & David P. Derham eds., 4th ed. 1972).
"A future interest is vested if it meets two requirements:
first, that there be no condition precedent to the interest's
becoming a present estate other than the natural expira
tion of those estates that are prior to it in possession; and
second, that it be theoretically possible to identify who
would get the right to possession if the interest should
become a present estate at any time." Thomas F. Bergin
& Paul G. Haskell, Preface to Estates in Land and Future
Interests 66-67 (2d ed. 1984).
vested in interest. (I8c) Consummated in a way that
will result in future possession and use. -Reversions,
vested remainders, and any other future use or execu
tory devise that does not depend on an uncertain
period or event are all said to be vested in interest.
[Cases: Wills <>628-638.]
vested in possession. (I8c) Consummated in a way that
has resulted in present enjoyment.
vested estate. See ESTATE (I).
vested gift. See GIFT.
vested interest. See INTEREST (2).
vested legacy. See LEGACY.
vested ownership. See OWNERSHIP.
vested pension. See PENSION.
vested remainder. See REMAINDER.
vested right. See RIGHT.
vested-rights doctrine. Constitutional law. The rule that
the legislature cannot take away a right that has been
vested by a court's judgment; specif., the principle that
it is beyond the province of Congress to reopen a final
judgment issued by an Article III court. -Also termed
doctrine ofvested rights. [Cases: Constitutional Law (;::::>
2384,2630-2655.]
vestigial words (ve-stij-ee-;ll). Statutory words and
phrases that, through a succession of amendments,
have been made useless or meaningless. _ Courts do
not allow vestigial words to defeat the fair meaning of
a statute.
vestigium (ve-stij-ee-Jm). Archaic. A vestige, mark, or
sign; a trace, track, or impression left by a person or a
physical object.
vesting order. (1873) A court order passing legal title in
lieu ofa legal conveyance.
vestita manus (ves-tI-tJ may-nJs), n. [Latin "vested
hand"] Hist. The right hand used in the ceremony of
investiture.
vestita viro (ves-tHa vI-roh). [Law Latin] Hist. Clothed
with a husband.
"A married woman is said to be vestita viro, and so long as
this coverture exists her person cannot be attached on civil
diligence, unless that diligence proceeds upon a decree
ad factum praestandum, for the performance of some act
which she is bound to perform, and which cannot be validly
performed except by herself, ex. gr., to enter the heir of
her vassal, to produce or exhibit as a haver writings in her
own custody, &c." John Trayner, Trayner's Latin Maxims
628 (4th ed. 1894).
vestitive fact (ves-ta-tiv). See dispositive fact (1) under
FACT.
vestitus et mundus muliebris (ves-tI-tas et m;m-das
myoo-lee-ee-bris). [Latin] Hist. A woman's wearing of
apparel and ornaments.
vestry (ves-tree). Eccles. law. 1. The place in a church
where the priest's robes are kept. -Also termed sacristy.
2. An assembly of the minister, church wardens, and
parishioners to conduct church business.
vestry clerk. Eccles. law. An officer appointed to attend a
vestry and to take minutes of the proceedings.
vesture (ves-char). Hist. 1. The corn, grass, underwood,
stubble, or other growth -apart from trees -that
covers the land. -Also termed vestura (ves-t[y]oor-a);
vestura terrae (ter-ee); vesture ofland. 2. Seisin; inves
titure.
veteran. A person who has been honorably discharged
from military service.
Veterans Administration. See DEPARTMENT OF VETERANS
AFFAIRS.
Veterans Affairs, Department of. See DEPARTMENT OF
VETERANS AFFAIRS.
Veterans Appeals, U.S. Court of. See UNITED STATES
COURT OF APPEALS FOR VETERANS CLAIMS.
Veterans Benefits Administration. A unit in the US.
Department ofVeterans Affairs responsible for advising
and assisting veterans and their families who apply for
veterans' benefits. [Cases: Armed Services (;:::J 102.]
Veterans' Employment and Training Service. A unit
in the U.S. Department of Labor responsible for
administering various programs relating to veterans'
employment and training. The agency protects the
reemployment rights ofveterans and the employment
and retention rights of members of the Reserve and
National Guard. Its regional administrators work with
state employment -security agencies and with recipients
of grants under the Job Training Partnership Act to
ensure that veterans are provided the priority services
required by law. -Abbr. VETS.
Veterans Health Administration. A unit in the US.
Department of Veterans Affairs responsible for pro
viding hospital, nursing-home, and medical care to
eligible veterans of military service. [Cases: Armed
Services (;:::J 102.]
veteran's loan. See LOAN.
vetera statuta (vet-a-ra sta-t[y]oo-tCl), n. pl. [Law Latin
"ancient statutes"] The statutes from Magna Carta (1215) to the end of Edward II's reign (1327). -Also
termed antiqua statuta (an-tI-kwCl sta-t[y]oo-tCl). Cf.
NOVA STATUTA.
vetitive (vet-a-tiv), adj. Of, relating to, or having the
power to veto.
vetitum namium (vet-a-tClm nay-mee-am), n. [Law Latin
"a prohibited taking"] Hist. See NAMIUM VETITUM.
veto (vee-toh), n. [Latin "I forbid"] (17c) l. A power ofone
governmental branch to prohibit an action by another
branch; esp., a chief executive's refusal to sign into law
a bill passed by the legislature. [Cases: Statutes (;:::J25.]
2. VETO MESSAGE. PI. vetoes. -veto, vb.
absolute veto. (1852) An unrestricted veto that is not
subject to being overridden.
item veto. See line-item veto.
legislative veto. (1850) Hist. A veto allowing Congress
to block a federal executive or agency action taken
under congressionally delegated authority. The
Supreme Court held the legislative veto unconstitu
tional in INS v. Chadha, 462 US. 919,103 S.Ct. 2764
(1983). See DELEGATION DOCTRINE.
liberum veto (lib-ar-Clm). Hist. Formerly in Poland, the
right of any single member of the diet to invalidate
a measure.
limited veto. See qualified veto.
line-item veto. (1858) The executive's power to veto
some provisions in a legislative bill without affecting
other provisions . The U.S. Supreme Court declared
the presidential line-item veto unconstitutional in
1998. See Clinton v. City ofNew York, 524 U.S. 417,118
S.Ct. 2091 (1998). -Also termed item veto. [Cases:
Statutes (;:::J33.]
negative veto. See qualified veto.
overridden veto. (1971) A veto that the legislature has
superseded by again passing the vetoed act, usu. by a
supermajority oflegislators . In the federal govern
ment, a bill vetoed by the President must receive a
two-thirds majority in Congress to override the veto
and enact the measure into law. [Cases: Statutes (;:::J
35.]
pocket veto. (1842) A veto resulting from the President's
failure to sign a bill passed within the last ten days of
the congressional session. [Cases: Statutes (;:::J34.]
qualified veto. (1853) A veto that is conclusive unless
overridden by an extraordinary majority ofthe legis
lature. This is the type ofveto power that the Presi
dent ofthe United States has. -Also termed limited
veto; negative veto.
suspensory veto (sCl-spen-sCl-ree). (1911) A veto that
suspends a law until the legislature reconsiders it and
then allows the law to take effect if repassed by an
ordinary majority. -Also termed suspensive veto.
vetoer, n. One who vetoes. -Also termed vetoist.
veto message. (1830) A statement communicating the
reasons for the executive's refusing to sign into law a
1701
bill passed by the legislature. -Sometimes shortened
to veto.
veto power. (1883) An executive's conditional power
to prevent a bill that has passed the legislature from
becoming law.
veto-proof majority. See MAJORITY.
VETS. abbr. VETERANS' EMPLOYMENT AND TRAINING
SERVICE.
vetusjus (vee-t;)s jas). Roman & civil law. 1. The law ofthe
Twelve Tables. See TWELVE TABLES. 2. Long-established
or ancient law. 3. A law in force before the passage of
a later law.
vex, vb. (1Sc) L To harass, disquiet, or annoy. 2. To cause
physical or emotional distress. -vexatious, adj.
vexation, n.
vexari (vek-sair-I), vb. [Latin] To be harassed, vexed, or
annoyed.
vexata quaestio (vek-say-ta kwes-chee-oh). See VEXED
QUESTION.
vexation. (lSc) The damage that results from trickery
or malice.
vexatious (vek-say-sh;)s), adj. (l6c) (Of conduct) without
reasonable or probable cause or excuse; harassing;
annoying.
vexatious delay. An insurance company's unjustifiable
refusal to satisfy an insurance claim, esp. based on
a mere suspicion but no hard facts that the claim is
ill-founded. -Also termed vexatious refusal to pay;
refusal to pay. [Cases: Insurance C=3336.]
vexatious lawsuit. See VEXATIOUS SUIT.
vexatious litigant. See LITIGANT.
vexatious proceeding. See VEXATIOUS SUIT.
vexatious refusal to pay. See VEXATIOUS DELAY.
vexatious suit. (17c) A lawsuit instituted maliciously
.and without good grounds, meant to create trouble
and expense for the party being sued. -Also termed
vexatious lawsuit; vexatious litigation; vexatious pro
ceeding. Cf. MALICIOUS PROSECt:TION. [Cases: Action
Federal Civil Procedure
vexed question. (17e) 1. A question often argued about
but seemingly never settled. 2. A question or point that
has been decided differently by different tribunals and
has therefore been left in doubt. Also termed vexata |
question or point that
has been decided differently by different tribunals and
has therefore been left in doubt. Also termed vexata
quaestio (vek-say-t~ kwes-tee-oh).
v.g. abbr. VERBI GRATIA.
via (vI-a), n. [Latin "way, road"] Roman & civil law. 1. A
road, way, or right-of-way.
via publica (vI-a pab-li-ka). [Latin] Roman & civil law.
A public way or road. The land itself belongs to the
public.
2. Roman law. A type of rural servitude that gave the
holder the right to walk, ride, or drive over anoth
er's land; SERVITUS VIAE. It was broader than and
included the servitus itineris and the servitus actus; that vicar
is, via encompassed both iter (a footpath) and actus (a
driveway). 3. Civil law. The way in which legal proce
dures are followed.
via executiva (VI-~ eg-zek-ya-tI-vd). Civil law. Execu
tory process by which the debtor's property is seized,
without previous citation, for some reason specified
by law, usu. because ofan act or title amounting to a
confession ofjudgment.
via juris (VI-;) joor-is). [Latin] Hist. By means oflaw;
by means oflegal process.
via ordinaria (VI-a or-di-nair-ee-a). Civil law. The
ordinary way or process by which a citation is served
and all the usual forms oflaw are followed.
via action is (VI-;) ak-shee-oh-nis). [Latin] Hist. By way
of an action.
viable (vI-a-b~I), adj. (1832) 1. Capable ofliving, esp.
outside the womb <a viable fetus>. 2. Capable of inde
pendent existence or standing <a viable lawsuit>. 3.
Capable of succeeding <a viable option>. -viability
(vI-d-bil-a-tee), n.
viae servitus (vI-ee s;)r-va-tas). 1. See SERVITUS VIAE.
2. See VIA (2).
via executiva. See VIA (3).
viafacti (VI-a fak-tI), adv. [Law Latin "by way ofdeed"]
By force; in a forcible way.
viagere rente. See RENTE VIAGERE.
via juris. See VIA (3).
via ordinaria. See VIA (3).
via publica. See VIA (1).
via regia (VI-~ ree-jee-~). [Latin "the king's highway"]
Hist. The highway or common road called the "king's
highway" because the king authorized and protected
it.
viatical settlement. See SETTLEMENT (3),
viatication (vI-at-~-kay-sh;)n). [fr. Latin viaticus "relating
to a road or journey"] The purchase ofa terminally or
chronically ill policyholder's life insurance in exchange
for a lump-sum payment equal to a percentage of the
policy's full value. See viatical settlement under SETTLE
MENT.
viator (vI-ay-t<lr). 1. APPARITOR (1). 2. A terminally or
chronically ill life-insurance policyholder who sells
the policy to a third party in return for a lump-sum
payment equal to a percentage ofthe policy's face value.
[Cases: Insurance C~")1994.]
viatorial privilege. See PRIVILEGE (1).
vi aut clam (VI awt klam), adv. [Latin] Roman law. By
force or by stealth.
vi aut metu (VI awt mee-t[y]oo), adv. [Latin] Hist. By
force or fear.
vicar. 1. One who performs the functions of another;
a substitute. 2. The incumbent of an ecclesiastical
benefice. Cf. RECTOR.
1702 vicarage
vicarage (vik-Jr-ij). 1. The benefice of a vicar. 2. The
house or household of a vicar. 3. VICARSHIP.
vicar general. An ecclesiastical officer who helps the
bishop or archbishop in the discharge ofhis office.
vicarial tithe (vI-kair-ee-JI). See TITHE.
vicarious (vI-kair-ee-Js), adj. (17c) Performed or suffered
by one person as substitute for another; indirect; sur
rogate.
vicarious disqualification. See DISQUALIFICATION.
vicarious exhaustion of remedies. See EXHAUSTION OF
REMEDIES.
vicarious infringement. See INFRINGEMENT.
vicarious liability. See LIABILITY.
vicarious performance. See PERFORMANCE.
vicarious reduction to practice. See REDUCTION TO
PRACTICE.
vicarius apostolicus (vI-kair-ee-Js ap-Js-tahl-J-kJs), n.
[Latin "apostolic vicar"] Eccles. law. An officer through
whom the Pope exercises authority in remote regions.
This officer is sometimes sent with episcopal func
tions into provinces where there is no bishop resident
or where there has long been a vacancy in the see.
vicarship. The office, function, or duty ofa vicar. -Also
termed vicarage.
vice (VIS), n. (14c) 1. A moral failing; an ethical fault.
2. Wickedness; corruption. 3. Broadly, any defect or
failing.
vice (VI-see or VI-SJ), prep. (18c) In the place of; in the
stead of. As a prefix, vice-(VIS) denotes one who takes
the place of.
vice-admiral. Hist. A civil officer exercising admiralty
jurisdiction within a specific locale.
vice-admiralty. 1. The office of a vice-admiral. 2. The
district over which a vice-admiral has jurisdiction.
vice-admiralty court. Hist. A tribunal established in
British possessions beyond the seas, with jurisdiction
over maritime cases, including those related to prize .
The governor of the colony, in the capacity of "vice
admiral," exercised judicial authority in this court.
vice-chamberlain. Hist. A great officer under the lord
chamberlain . In the lord chamberlain's absence, the
vice-chamberlain would control and command the
officers attached to the part of the royal household
called the "chamber."
vice-chancellor. A judge appointed to act for the chan
cellor, esp. in a chancery court. -Abbr. Vc.
vice-comes (vI-sJ-koh-meez), n. [Law Latin] Hist. 1.
VISCOUNT. 2. SHERIFF. -Also spelled vicecomes.
vicecomes non misit breve. Hist. An entry in a continued
case's record noting that a sheriff has not yet returned
a writ. -Also written vice comes non misit breve; vice
comes non misit breve.
vicecomital (vI-sJ-kom-J-tJI). See VICONTIEL.
vice-comitissa (vI-sJ-kom-J-tis-J). See VISCOUNTESS. vice-commercial agent. See AGENT.
vice-consul. A consular officer subordinate to a consul;
esp., one who is substituted temporarily to fill the place
of a consul who is absent or has been relieved from
duty. [Cases: Ambassadors and Consuls C=>1-8.]
career vice-consul. A vice-consul who is a member of
the Foreign Service. -Also termed vice-consul of
career.
noncareer vice-consul. A vice-consul who is not a
member ofthe Foreign Service and who is appointed
without examination.
vice crime. See CRIME.
vice-dominus episcopi (vI-sJ-dom-J-nJs J-pis-kJ-pI). 1.
A vicar general. 2. A commissary of a bishop.
vicegerent (vIs-jeer-Jnt). A deputy; lieutenant.
vice-governor, n. A deputy or lieutenant governor.
vice-judex (vIs-joo-deks). Hist. A deputy judge.
vice-marshal. An officer appointed to assist the earl
marshal. See EARL MARSHAL OF ENGLAND.
vicem fructuum obtinere (vI-sem fnk-choo-Jm ob-ti
nee-ree). [Latin] Hist. To take the place offruits. The
phrase typically referred to interest as the produce of
money.
vice president, n. (16c) 1. An officer selected in advance
to fill the presidency if the president dies, resigns, is
removed from office, or cannot or will not serve . The
Vice President ofthe United States, who is elected at the
same time as the President, serves as presiding officer of
the Senate but may cast a vote only to break a tie. On the
death, incapacity, resignation, or removal ofthe Presi
dent, the Vice President succeeds to the presidency.
2. A corporate officer of mid-level to high rank, usu.
having charge of a department. -Abbr. VP.; VP.
Also written vice-president. [Cases: United States C=>
26.] -vice presidency, n. -vice-presidential, adj.
vice principal. See FELLOW-SERVANT RULE.
viceregent, n. 1. A deputy regent; esp., one who acts in
the place of a ruler, governor, or sovereign. 2. More
broadly, an officer deputed by a superior or by proper
authority to exercise the powers ofthe higher authority;
one with delegated power.
viceroy, n. The governor of a kingdom or colony, who
rules as the deputy of a monarch. -viceroyal, vice
regal, adj.
vice-sheriff. See deputy sheriff under SHERIFF.
vice-treasurer, n. A deputy or assistant treasurer.
vicinage (vis-J-nij). [Law French "neighborhood"] (14c)
1. Vicinity; proximity. 2. The place where a crime is
committed or a trial is held; the place from which jurors
are to be drawn for trial; esp., the locale from which
the accused is entitled to have jurors selected. -Also
termed vicinetum (vis-<l-nee-tJm). [Cases: Criminal
Law C=> 108; Jury C=>33(3).]
"Whereas venue refers to the locality in which charges will
be brought and adjudicated, vicinage refers to the locality
from which jurors will be drawn.... The vicinage concept
1703
requires that the jurors be selected from a geographi
cal district that includes the locality of the commission
of the crime, and it traditionally also mandates that such
district not extend too far beyond the general vicinity of
that locality." Wayne R. LaFave & Jerold H. Israel, Criminal
Procedure 16.1, at 738-39 (2d ed. 1992).
3. A right of common that neighboring tenants have
in a barony or fee.
vicious animal. See ANIMAL.
vicious intromission. See vitious intromission under
INTROMISSION.
vicious propensity. (1835) An animal's tendency to
endanger the safety ofpersons or property. See vicious
animal under ANIMAL. [Cases: Animals (>66.2,
66.5(2).]
vicontiel (vI-kon-tee-;:ll), adj. (l7c) 1. Ofor relating to a
viscount. 2. Of or relating to a sheriff. Also spelled
vicountiel. Also termed vicecomital.
vicontiel rent. Rist. Rent that a viscount or sheriff pays
for the use ofa royal farm.
vicontiels (vl-kon-tee-alz). Rist. 1. Money payable by a
viscount or sheriff to the Crown. 2. Vicontiel rents.
vicontiel writ. See WRIT.
victim, n. (I5c) A person harmed by a crime, tort, or
other wrong. -victimize, vb. victimization, n.
victim allocution. See ALLOCUTION.
victim-impact statement. (1981) A statement read into
the record during sentencing to inform the judge or jury
of the financial, physical, and psychological impact of
the crime on the victim and the victim's family. [Cases:
Sentencing and Punishment C=>361, 1763.]
victimless crime. See CRIME.
victim-precipitated homicide. See HOMICIDE.
victim-related adjustment. An increase in punishment
. available under federal sentencing gUidelines when the
defendant knew or should have known that the victim
bore a particular characteristic -e.g., the victim was
unusually vulnerable (because ofage or condition) - or
was otherwise particularly susceptible to the criminal
conduct. See USSG 3Al.l, 1.2. [Cases: Sentencing
and Punishment
Victims of Child Abuse Laws. An organization of
persons who claim to have been wrongly accused of
sexually abusing children. Abbr. VOCAL. Cf. FALSE
MEMORY SYNDROME FOUNDATION.
victualer (vit-al-ar). Rist. 1. A person authorized by
law to keep a house of entertainment for the public; a
publican. [Cases: Public Amusement and Entertain
ment C-~16.] 2. A person who serves food or drink
prepared for consumption on the premises. Also
spelled victualler. [Cases: Food C=>0.5, 3.J
victual rent (vit-[a]I). Scots law. A rent paid in grain or
its monetary equivalent.
victus (vik-ti3s). Civil law. Sustenance; support; a means
ofliving. vietarmis
vidame (vee-dam), [FrenchJ Hist. In French feudal law,
an officer who represented the bishop. Over time,
these officers erected their offices into fiefs and became
feudal nobles, such as the vidame ofChartres, Rheims,
etc. They continued to take their titles from the seat of
the bishop whom they represented, even though the
lands held by virtue oftheir fiefs might be situated else
where.
vide (vI |
they represented, even though the
lands held by virtue oftheir fiefs might be situated else
where.
vide (vI-dee also vee-day). [Latin] See. This is a citation
signal still seen in some texts, esp. in the abbreviated
fOfm q.v. (quod vide "which see"). Vide ante or vide
supra refers to a previous passage in a text; vide post or
vide infra refers to a later passage.
videlicet (vi-del-;:l-set or -sit). [Latin] (ISc) To wit; that is
to say; namely; SCILICET. The term is used primarily
to point out, particularize, or make more specific what
has been previously stated in general (or occas. obscure)
language. One common function is to state the time,
place, or manner when that is the essence ofthe matter
at issue. -Abbr, viz. See VIZ.
Video Electronics Standards Association. A nonprofit
organization that promotes and develops industry-wide
standards for computers to ensure interoperability, and
encourage innovation and market growth. Abbr.
VESA.
video piracy. See PIRACY (3).
Video Privacy Protection Act. A federal statute that bars
video stores from disclosing to third parties the names
ofcustomers' rentals. 18 USCA 2710.
vidimus (vid-a-mi3s), n. [Latin "we have seen"] 1. An
inspection ofdocuments, etc. 2. An abstract, syllabus,
or summary. 3. An attested copy of a document. 4.
INSPEXIMUS.
Vidi scivi et audivi (vl-dI SI-VI et aw-dl-vI). Hist. I saw,
knew, and heard. This was formerly an essential part
ofthe notary's docket attached to the end ofan instru
ment of seisin, by which the notary claimed to have
been personally present on the ground when seisin
was given and thus to have known the facts to be true
by having heard the words spoken and seen the acts
done,
vidua regis (vij-oo-i3 ree-jis), n. [Latin]!. The widow of
the king. 2. The widow ofa tenant in capite. In sense
2, she was so called because she was not allowed to
marry a second time without the king's permission.
She obtained her dower from the king, who was her
patron and defender.
viduitatis professio (va-d[y]oo-a-tay-tis pra-fes[hJ
ee-oh), n. [Latin] Rist. A woman's solemn act of pro
fessing that she will live as a single, chaste woman.
viduity (vi-dfy]oo-a-tee). Archaic. Widowhood.
vie (vee). [French] Life . The term occurs in such Law
French phrases as cestui que vie and pur autre vie.
vi et armis (VI et ahr-mis). [Latin) Hist. By or with force
and arms, See trespass vi et armis under TRESPASS.
"The words 'with force and arms,' anciently 'vi et armis,'
were, by the common law, necessary in indictments for
offences which amount to an actual disturbance of the
peace, or consist, in any way, of acts of violence; but it
seems to be the better opinion, that they were never neces
sary where the offence consisted of a cheat, or non-fea
zance, or a mere consequential injury." 1 Joseph Chitty, A
Practical Treatise on the Criminal Law 240 (2d ed. 1826).
"vi et armis . .. was a necessary part of the allegation, in
medieval pleading, that a trespass had been committed
with force and therefore was a matter for the King's Court
because it involved a breach of the peace. In England, the
term survived as a formal requirement of pleading until
1852." Bryan A. Garner, A Dictionary ofModem Legal Usage
916 (2d ed. 1995).
view, n. 1. The common-law right of prospect -that
is, an outlook from the windows of one's house. 2. An
urban servitude that prohibits the obstruction of the
outlook from a person's house. [Cases: Adjoining Land
owners 10; Easements 011, 19,45.] 3. A jury's
trip to inspect a place or thing relevant to the case it is
considering; the act or proceeding by which a tribunal
goes to observe an object that cannot be produced
in court because it is immovable or inconvenient to
remove. The appropriate procedures are typically
regulated by state statute. At common law, and today
in many civil cases, the trial judge's presence is not
required. The common practice has been for the jury
to be escorted by "showers" who are commissioned for
this purpose. Parties and counsel are generally permit
ted to attend, although this is a matter typically within
the trial judge's discretion. Cf. VIEW OF AN INQUEST.
Criminal Law Federal Civil Procedure
Trial 4. In a real action, a defendant's
observation ofthe thing at issue to ascertain its identity
and other circumstances surrounding it. Cf. DEMAND
OF VIEW.
viewer. (15c) A person, usu. one ofseveral, appointed by
a court to investigate certain matters or to examine a
particular locality (such as the proposed site of a new
road) and to report to the court.
view ofan inquest. (1837) A jury's inspection ofa place
or property to which an inquiry or inquest refers. Cf.
VIEW (3).
view of frankpledge. Rist. The twice-yearly gathering
and inspection of every freeman within the district who
was more than 12 years old to determine whether each
one had taken the oath of allegiance and had found
nine freeman pledges for his peaceable demeanor. See
FRANKPLEDGE.
viewpoint discrimination. See DISCRIMINATION.
viewpoint-neutral. See NEUTRAL.
vif-gage (veef-gayj or vif-). [Law French] See vadium
vivum under VADIUM.
vigil. Eccles. law. The day before any solemn feast.
vigilance. (16c) Watchfulness; precaution; a proper
degree of activity and promptness in pursuing one's
rights, in guarding them from infraction, and in dis
covering opportunities for enforcing one's lawful
claims and demands. vigilant, adj. (15c) Watchful and cautious; on the alert;
attentive to discover and avoid danger.
vigilante (vij-a-Ian-tee). (1856) A person who seeks to
avenge a crime by taking the law into his or her own
hands.
vigilantism (vij-a-lan-tiz-dm). The act of a citizen who
takes the law into his or her own hands byapprehend
ing and punishing criminals.
viis et modis (VI-is et moh-dis). [Latin] Eccles. law. By all
ways and means . In ecclesiastical courts, service ofa
decree or citation viis et modis is equivalent to substi
tuted service in temporal courts. It requires posting of
a notice where a person is likely to be found. This type
of service is contrasted with personal service.
vi laka amovenda. See DE VI LAICA AMOVENDA.
vill (viI). Rist. 1. A part into which a hundred or wapen
take was divided. 2. A town or village.
village. 1. Traditionally, a modest assemblage of houses
and buildings for dwellings and businesses. 2. In some
states, a municipal corporation with a smaller popu
lation than a city. Also termed (in sense 2) town;
borough. [Cases: Municipal Corporations
villanis regis subtractis reducendis (vi-Iay-nis ree-jis
sdb-trak-tis ree-d[y]oo-sen-dis), n. [Latin "for return
ing the king's villeins who have been removed"] Hist.
A writ that lay for the bringing back of the king's
bondmen who had been carried away by others out of
his manors, where they belonged.
villanum servitium (vi-lay-ndm sdr-vish-ee-<lm), n.
[Latin] Rist. See VILLEINAGE.
villein (vil-<ln). Hist. A person entirely subject to a lord
or attached to a manor, but free in relation to all others;
a serf. -At the time of the Domesday Inquest (shortly
after the Norman Conquest), about 40% of house
holds were marked as belonging to villeins: they were
the most numerous element in the population.
Cf. FREEMAN.
villein in gross. A villein who was annexed to the
person ofthe lord, and transferable by deed from one
owner to another.
villein regardant (ri-gahr-ddnt). A villein annexed to
the manor ofland_
villeinage (vil-d-nij). Hist. 1. The holding of property
through servitude to a feudal lord; a servile type of
tenure in which a tenant was obliged to render base
services to a lord. Cf. KNIGHT SERVICE; SOCAGE. 2. A
villein's status, condition, or service. Also spelled
villenage; villainage; villanage. Also termed villein
tenure.
"The typical tenant in villeinage does not know in the
evening what he will have to do in the morning.. . [Tl
here is a large element of real uncertainty; the lord's will
counts for much; when they go to bed on Sunday night
they do not know what Monday's work will be; it may be
threshing, ditching, carrying: they cannot tell. This seems
the point that is seized by law and that general opinion of
which law is the exponent: any considerable uncertainty
as to the amount or kind of the agricultural services makes
the tenure unfree. The tenure is unfree, not because the
1705
tenant 'holds at the will of the lord,' in the sense of being
removable at a moment's notice, but because his services,
though in many respects minutely defined by custom,
cannot be altogether defined without frequent reference
to the lord's will." 1 Frederick Pollock & Frederic William
Maitland, History ofEnglish Law Before the Time ofEdward
1371 (2d ed. 1898).
"At the lower level the services were not always defined.
The duties of the peasant were chiefly agricultural. Ifthey
were unfixed, so that the lord might in theory demand all
manner of work, the tenure was 'unfree' and was called vil
leinage." J,H. Baker, An Introduction to English Legal History
260 (3d ed. 1990).
privileged villeinage. Villeinage in which the services
to be performed were certain, though of a base and
servile nature.
pure villeinage. Villeinage in which the services were
not certain, but the tenant was obliged to do whatever
he was commanded whenever the command came.
villein in gross. See VILLEIN.
villein regardant. See VILLEIN.
villein service. Hist. A base service that a villein per
formed, such as working on the lord's land on certain
days of the week (usu. two to four) . These services
were not considered suitable to a man of free and hon
orable rank. Also termed villein servitium. See WEEK
WORK.
villein socage (sok-ij). See SOCAGE.
villenous judgment (vil-;,-n;,s). Hist. A judgment that
deprived a person of his Libera lex, as a result ofwhich
he was discredited and disabled as a juror and witness,
forfeited his goods and chattels and land, had his houses
razed and trees uprooted, and went to prison. Also
spelled villainous judgment.
vinagium (vi-nay-jee-dm). A payment in kind ofwine
as rent for a vineyard.
vinculacion (vin-koo-Iah-syohn). Spanish law. A linking
, or encumbering; esp., an entail.
vinculo (ving-ky;,-loh), n. [Latin "by bond"] Spanish law.
1. A tie or bond; esp., the bond of marriage. See divorce
a vinculo matrimonii under DIVORCE. 2. An entail.
vinculum juris (ving-ky;,-l;,m joor-is). [Latin "a bond
of the law"] Roman law. The tie that legally binds one
person to another; legal bond; obligation. Cf. SOLUTIO
OBLIGA TIONIS.
vinculum personarum ab eodem stirpite descendentium
(ving-ky;,-I;,m pdr-Sd-nair-dm ab ee-oh-d;,m stI-pa
tee dee-sen-den-shee-am). [Law Latin] Iiist. The bond
uniting persons descended from the same stock.
vindex (vin-deks), n. [Latin] Civil law. One who guaran
teed the appearance of a defendant in court on pain of
being liable for the judgment debt.
vindicare (vin-di-kair-ee), vb. [Latin "to claim or chal
lenge"] Roman law & Hist. To demand as one's own;
to assert a right in or to (a thing); to assert or claim
ownership of (a thing).
vindicate, vb. (l6c) 1. To clear (a person or thing) from
suspicion, criticism, blame, or doubt <DNA tests violence
vindicated the suspect>. 2. To assert, maintain, or
affirm (one's interest) by action <the claimants sought
to vindicate their rights through a class-action suit>.
3. To defend (one's interest) against interference or
encroachment <the borrower vindicated its interest in
court when the lender tried to foreclose>. 4. Roman
& civil law. To assert a legal right to (a thing); to seek
recovery of (a thing) by legal process <Antony Hon
oratus attempted to vindicate the sword he had lent his
cousin>. -vindication, n. -vindicator, n.
vindicatio (vin-di-kay-shee-oh), n. [Latin "claim"]
Roman law. 1. An action by the owner to claim
property.
vindicatio servitutis (vin-di-kay-shee-oh sdr-v;,-t[y]
oo-tis). [Latin "claim of servitude"] Roman |
-shee-oh sdr-v;,-t[y]
oo-tis). [Latin "claim of servitude"] Roman law. An
action against the owner ofland over which the plain
tiff claims that a servitude exists. Also termed actio
confessoria.
2. The claiming of a thing as one's own; the assertion
of a right in or title to a thing. PI. vindicationes (vin
di-kay-shee-oh-neez).
vindicatory part (vin-dd-ka-tor-ee), (1881) The portion
of a statute setting forth the penalty for committing a
wrong or neglecting a duty.
vindicta (vin-dik-ta), n. Roman law. 1. A rod or wand.
2. The assertion of freedom or ownership by sym
bolically touching the person or thing with a rod. See
FESTUCA.
vindictive damages. See punitive damages under
DAMAGES.
vindictive prosecution (vin-dik-tiv). See PROSECU
TION.
viol (vyohl), n. [French] French law. Rape; indecent
assault.
violation, n. (I5c) 1. An infraction or breach of the law;
a transgression. See INFRACTION. 2. The act of breaking
or dishonoring the law; the contravention of a right or
duty. 3. Rape; ravishment. 4. Under the Model Penal
Code, a public-welfare offense . In this sense, a viola
tion is not a crime. See Model Penal Code 1.04(5).
violate, vb. violative (vI-a-lay-tiv), adj. -violator,
n.
violation warrant. See WARRANT (1).
violence. (14c) The use of physical force, usu. accompa
nied by fury, vehemence, or outrage; esp., physical force
unlawfully exercised with the intent to harm. Some
courts have held that violence in labor disputes is not
limited to physical contact or injury, but may include
picketing conducted with misleading signs, false state
ments, erroneous publicity, and veiled threats by words
and acts.
domestic violence. 1. Violence between members of a
household, usu. spouses; an assault or other violent
act committed by one member of a household
against another. See BATTERED-CHILD SYNDROME;
BATTERED-WOMAN SYNDROME. [Cases: Assault and
Battery (;:=>48.]2. The infliction ofphysical injury, or
1706 Violence Against Women Act
the creation of a reasonable fear that physical injury
or harm will be inflicted, by a parent or a member or
former member ofa child's household, against a child
or against another member ofthe household. -Also
termed domestic abuse;family violence. 3. Archaic.
Insurrection or unlawful force fomented from within
a country.
Violence Against Women Act. A federal statute that
established a federal civil-rights action for victims
of gender-motivated violence, without the need for
a criminal charge. 42 USCA 13981. -In 2000, the
Supreme Court invalidated the statute, holding that
neither the Commerce Clause nor the Enforcement
Clause of the 14th Amendment authorized Congress
to enact the civil-remedy provision ofthis Act. United
States v. Morrison, 120 S.Ct. 1740 (2000). -Abbr.
VAWA. [Cases: Civil Rights (;=:1035.]
violent, ad). (14c) 1. Of, relating to, or characterized
by strong physical force <violent blows to the legs>.
2. Resulting from extreme or intense force <violent
death>. 3. Vehemently or passionately threatening
<violent words>.
violent crime. See CRIME.
violent death. See DEATH.
violent felony. See violent offense under OFFENSE (1).
violent offense. See OFFENSE (1).
violent profits. Scots law. Penal damages imposed against
a tenant who refused to surrender rented property to
the landlord.
vir (veer), n. [Latin] 1. An adult male; a man. 2. A
husband. _ In the Latin phrases and maxims that once
pervaded English law, vir generally means "husband,"
as in the expression vir et uxor (husband and wife). See
ET VIR. Cf. UXOR.
vires (vI-reez), n. (18c) 1. Natural powers; forces. 2.
Granted powers, esp. when limited. See ULTRA VIRES;
INTRA VIRES.
vir et uxor (veer et <lk-sor). [Latin] Husband and wife.
virga (v<lr-ga). Hist. A rod or staff; esp., a rod as an ensign
of office.
virgata (var-gay-ta). 1. A quarter of an acre ofland. See
ACRE. 2. A quarter ofa hide ofland. See HIDE (1).
virgata regia (var-gay-t<l ree-jee-<l). [Latin "king's verge"]
Hist. The bounds ofthe king's household, within which
the court of the steward had jurisdiction.
virga terrae (var-ga ter-ee), n. [Latin "branch ofland"]
Hist. A variable measure ofland ranging from 20 to 40
acres. -Also termed virgata terrae. See YARDLAND.
virge. See VERGE.
viridario eligendo (vir-<l-dair-ee-oh el-a-jen-doh). Hist.
A writ for choice ofa verderer in the forest.
virile share. Civil law. An amount that an obligor owes
jointly and severally with another. La. Civ. Code art.
1804. -Also termed virile portion. virtual adoption. See adoption by estoppel under
ADOPTION.
virtual child pornography. See PORNOGRAPHY.
virtual representation. See REPRESENTATION (3).
virtual-representation doctrine. (1945) The principle
that a judgment may bind a person who is not a party
to the litigation ifone ofthe parties is so closely aligned
with the nonparty's interests that the nonparty has been
adequately represented by the party in court. _ Under
this doctrine, for instance, a judgment in a case naming
only the husband as a party can be binding on his wife
as welL See RES JUDICATA. [Cases: Judgment
virtue ethics. Ethics. An ethical theory that focuses on
the character of the actor rather than on the nature of
the act or its consequences. -This approach received its
first and perhaps its fullest expression in the works of
Aristotle, esp. in his Ethics. Cf. CONSEQUENTIALISM.
virtute cujus (var-t[y]oo-tee k[y]oo-j<ls), adv. [Latin] Hist.
By virtue whereof. _ This phrase began the clause in a
pleading that attempted to justify an entry onto land
by alleging that it was by virtue of an order from one
entitled that the entry took place.
virtute officii (var-t[y]oo-tee a-fish-ee-I), adv. [Latin]
Hist. By virtue ofone's office; by the authority invested
in one as the incumbent of a particular office. -An
officer acts virtute officii when carrying out some
official authority as the incumbent ofan office.
vis (vis). [Latin "power"] (I7c) 1. Any force, violence, or
disturbance relating to a person or property.
"Vis, as a legal term, was understood to denote the orga
nizing and arming of tumultuous bodies of men for the
purpose of obstructing the constituted authorities in
the performance of their duty, and thus interrupting the
ordinary administration of the laws. No such offence was
recognised by the Criminal Code until the last century of
the republic, when violent riots by hired mobs became so
frequent, that M. Plautius Silvanus, Tribune of the Plebs,
S.c. 89, [secured the paSSing of] the lex P/autia de Vi, in
terms of which, those convicted of such practices were
banished." William Ramsay, A Manual ofRoman Antiquities
347 (Rodolfo Lanciani ed., 15th ed. 1894).
2. The force oflaw. _ Thus vim habere ("to have force")
is to be legally valid. PI. vires.
visa (vee-z<l). An official indorsement made on a passport,
showing that it has been examined and that the bearer
is permitted to proceed; a recognition by the country
in which a passport-holder wishes to travel that the
holder's passport is valid. - A visa is generally required
for the admission of aliens into the United States. 8
USCA 1181, 1184. -Also termed (archaically) vise
(vee-zay or vi-zay). [Cases: Aliens, Immigration, and
Citizenship <8::::> 170-207.]
vis ablativa (vis ab-I<l-tI-V<l), n. [Latin "ablative force"]
Civil law. Force exerted in taking something away from
another. Pl. vires ablativae.
vis absoluta (vis ab-sa-loo-ta). Physical compulsion.
The difference is between compulsion of the will (vis
compulsiva) which results in an act though not of free
volition, and physical compulsion (vis absoluta) in which the
1707
unavoidable movement is no act at all." Rollin M. Perkins &
Ronald N. Boyce, Criminal Law 1054-55 (3d ed. 1982).
vis armata (vis ahr-may-t<'l). [Latin "armed force"] Hist.
Force exerted by means ofweapons. Cf. VIS INERMIS.
Also termed armata vis.
vis aut metus qui cadit in constantem virum (vis awt
mee-t<'ls kWI kay-dit [or kad-itl in bn-stan-t<'lm
VI-r<'lm). [Latin] Hist. A force or fear sufficient to
overcome a man of firmness and resolution.
vis-a-vis (veez-<l-vee). [French "face to face"] (ISc) In
relation to; opposite to <the creditor established a pre
ferred position vis-a-vis the other creditors>.
Visby, laws of. See LAWS OF VISBY.
vis clandestina (vis klan-des-tI-n<ll, n. [Latin "clandes
tine force") Hist. Force furtively used, esp. at night.
vis compuisiva (vis kom-p<ll-SI-V<l), n. [Latin "compul
sive force"] Hist. Force exerted to compel another to
do something involuntarily; menacing force exerted
by terror.
viscount (vI-kownt). 1. The title of the fourth rank of
European nobility. _ In the British peerage, viscount
is placed between the dignity ofearl and baron. 2. Hist.
A sheriff.
viscountess (vI-kown-tisl_ 1. The wife of a viscount.
Also termed vice-comitissa. 2. A woman who holds the
rank ofviscount in her own right.
vis divina (vis di-Vl-n<l), n. Civil law. Divine or superhu
man force; ACT OF GOD; VIS MAJOR.
vise. See VISA.
vis expulsiva (vis eks-pal-SI-V<'l), n_ [Latin "expul
sive force"] Hist. Force used to expel or dispossess
another.
vis exturbativa (vis eks-t<lr-b<l-tI-VJ), n. [Latin "eliminat
ing force"] Hist. Force used to thrust out another, esp.
when two claimants are contending for possession.
vis jluminis (vis floo-m<'l-nis), n. [Latin "the force of a
river"] Civil law. The force exerted by a stream or river;
waterpower.
visible, adj. 1. Perceptible to the eye; discernible by sight
2_ Clear, distinct, and conspicuous.
visible crime. See street crime under CRIME.
visible means ofsupport. (1S46) An apparent method
of earning a livelihood. -Vagrancy statutes have long
used this phrase to describe those who have no osten
sible ability to support themselves.
vis illicita (vis il-lis-a-t;}). See VIS I:II"fURIOSA.
vis impressa (vis im-pres-<l), 11. [Latin "impressed force"]
The original act of force from which an injury arises,
as distinguished from the proximate (or immediate)
force.
vis inermis (vis in-.n-mis), n. [Latin] Unarmed force.
CE VIS ARMATA.
vis injuriosa (vis in-joor-ee-oh-s<'l), n. [Latin "injuri
ous force"] Hist. Wrongful force. -Also termed vis
illicita. visitation order
vis inquietativa (vis in-kwI-<l-t;}-tl-V<l), n. [Latin" disqui
eting force"] Civil law_ Force that prevents another from
using his or her possession quietly and in peace_
visit, n. Int'llaw. A naval officer's boarding an ostensibly
neutral merchant vessel from another state to exercise
the right of search. -This right is exercisable when
suspicious circumstances exist, as when the vessel is
suspected ofinvolvement in piracy. Also termed visi
tation. See RIGHT OF SEARCH. [Cases: War and National
Emergency (:::;::>20.J
visitation (viz-<l-tay-sh<ln). (14c) 1. Inspection; superin
tendence; direction; regulation. 2. Family law. A rela
tive's, esp. a noncustodial parent's, period of access to
a child. -Also termed parental access; access; parent
ing time; residential time. [Cases: Child Custody C=>
175-231.] 3. The process ofinquiring into and correct
ing corporate irregularities. [Cases: Corporations
394.]4. VISIT.
grandparent visitation. A grandparent's court
approved access to a |
ations
394.]4. VISIT.
grandparent visitation. A grandparent's court
approved access to a grandchild. -The Supreme
Court recently limited a grandparent's right to have
visitation with his or her grandchild if the parent
objects, citing a parent's fundamental right to raise
his or her child and to make all decisions concerning
the child free from state intervention absent a threat
to the child's health and safety. Troxel v. Granville, 530
U.S. 57, 120 S.Ct. 2054 (2000). [Cases: Child Custody
restricted visitation. See supervised visitation_
stepped-up visitation. Visitation, usu. for a parent who
has been absent from the child's life, that begins on a
very limited basis and increases as the child comes to
know the parent. -Also termed step-up visitation.
supervised visitation. Visitation, usu. court-ordered,
in which a parent may visit with the child or children
only in the presence of some other individuaL _ A
court may order supervised visitation when the
visiting parent is known or believed to be prone to
phYSical abuse, sexual abuse, or violence. -Also
termed restricted visitation. [Cases: Child Custody
visitation books. Hist Books compiled by the heralds,
when royal progresses were solemnly and regularly
made into every part of the kingdom, to inquire into
the state offamilies and to register whatever marriages
and descents were verified to them upon oath.
visitation credit. Family law. A child-support reduction
that reflects the amount oftime the child lives with the
noncustodial parent. [Cases: Child Support (:::;::> 165.J
visitation order_ (1944) Family law. 1. An order estab
lishing the visiting times for a noncustodial parent with
his or her child. [Cases: Child Custody C;>525.] 2. An
order establishing the visiting times for a child and a
person with a significant relationship to the child.
Such an order may allow for visitation between (1) a
grandparent and a grandchild, (2) a child and another
relative, (3) a child and a stepparent, or (4) occasionally,
visitation right
a child and the child's psychological parent. -Also
termed access order.
visitation right. (1935) 1. Family law. A noncustodial
parent's or grandparent's court-ordered privilege of
spending time with a child or grandchild who is living
with another person, usu. the custodial parent. The
noncustodial parent with visitation rights may some
times be a parent from whose custody the child has
been removed because of abuse or neglect. [Cases:
Child Custody C=> 175-231,282.] 2. Int'llaw. A bel
ligerent nation's right to search a neutral vessel to find
out whether it is carrying contraband or is otherwise
engaged in nonneutral service . Ifthe searched vessel
is doing either of these things, the searchers may seize
the contraband and carry out an appropriate punish
ment. -Also termed (in both senses) right ofvisita
tion.
visitatorial (viz-;l-t;l-tor-ee-;ll), adj. Of or relating to
on-site inspection or supervision. Also termed visi
torial.
"To eleemosynary corporations, a visitatorial power is
attached as a necessary incident .... [PJrivate and particu
lar corporations, founded and endowed by individuals for
charitable purposes, are subject to the private government
of those who are the effiCient patrons and founder. If there
be no visitor appointed by the founder, the law appoi nts
the founder himself, and his heirs, to be the VIsitors. The
visitatorial power arises from the property which the
founder assigned to support the charity; and as he is the
author of the charity, the laws give him and his heirs a visi
tatorial power; that is, an authority to inspect the actions
and regulate the behaVior of the members that partake of
the charity. This power is judicial and supreme, but not
legislative." 2 James Kent, Commentaries on American Law
*300-01 (George Comstock ed., 11th ed. 1866).
visitatorial power. See POWER (3).
visiting judge. See JUDGE.
visitor. 1. A person who goes or comes to a particular
person or place.
business visitor. See BUSI-:-.!ESS VISITOR.
2. A person appointed to visit, inspect, inquire into,
and correct corporate irregularities. [Cases: Corpora
tions
visitorial. See VISITATORIAL.
visitorial power. See visitatorial power under POWER
(3).
visitor ofmanners. A regarder's office in the forest.
vis laica (vis laY-d-b), n. [Latin "lay force"] Hist. An
armed force used in holding possession of a church.
vis licita (vis liS-d-td), n. [Latin] Lawful force.
vis major (vis may-j;lr), n. [Latin "a superior force"] (I7c)
1. A greater or superior force; an irresistible or over
whelming force ofnature; FORCE MAJEURE. Cf. ACT OF
GOD. 2. A loss resulting immediately from a natural
cause without human intervention and that could not
have been prevented by the exercise ofprudence, dili
gence, and care. -Also termed act of nature; act of
providence; superior force; irresistible force; vis divina. 1708
[Cases: Carriers C=> 119; Negligence <'>::>440; Shipping
C=> 120,179.]
vis major naturae (vis may-jor nd-tyoor-ee). [Latin] Hist.
The superior force of nature. See FORCE MAJEURE.
visne (veen or veen-ee). [Law French fro Latin visnetuml
Neighborhood; at common law, the district from which
juries were drawn; VJCINAGE.
vis perturbativa (vis p;lr-t;lr-bd-tI-Vd), n. [Latin "per
turbing force"] Hist. Force used between persons con
tending for possession of something.
vis proxima (vis prahk-sd-m;l), n. [Latin "proximate
force"] Hist. Immediate force.
vis simplex (vis sim-pleks), n. [Latin "simple force"] Hist.
Mere force; sheer force.
VISTA (vis-t;l). abbr. (1964) Volunteers in Service to
America, a federal program established in 1964 to
provide volunteers to help improve the living condi
tions of people in the poorest areas ofthe United States,
its possessions, and Puerto Rico. [Cases: United States
C=>82(4).]
vi statuti (VI st,H[y]oo-tI). [Law Latin] Hist. By force of
statute.
Visual Artists Rights Act. Copyright. A 1990 federal law
giving a visual artist nontransferable moral rights of
integrity and attribution in original and limited-edition
creations . Passed in order to meet Berne Convention
standards, the Act protects the original artist not the
owner of the copyright -by granting some rights to
prevent the work from being changed or destroyed, and
by guaranteeing that the artist may claim authorship of
the original work but may deny authorship ifthe work
is modified. 17 USC A 106A, 113. Abbr. VARA.
[Cases: Copyrights and Intellectual Property
visus (vl-sas arvl-zas), n. [Latin] Hist. An inspection of
a place, person, or thing. See VIEW (3), (4).
vital statistics. (1837) Public records usu. relating to
matters such as births, marriages, deaths, diseases, and
the like that are statutorily mandated to be kept by a
city, state, or other governmental division or subdivi-
sion. _ On the admissibility ofvital statistics, see Fed. _
R. Evid. 803(9). [Cases: Health C='395.]
vital term. Seefundamerltal term under TERM (2).
vitiate (vish-ee-ayt), vb. (l6c) 1. To impair; to cause to
have no force or effect <the new statute vitiates any
common-law argument that the plaintiffs might have>.
2. To make void or voidable; to invalidate either com
pletely or in part <fraud vitiates a contract>. 3. To
corrupt morally <Mr. Lawrence complains that his
children were vitiated by their governess>. vitia
tion, n. -vitiator, n.
vitilitigate (vit-d-lit-a-gayt), vb. [fro Latin vitilitigare "to
quarrel disgracefully"] Archaic. To litigate merely from
quarrelsome motives; to carryon a lawsuit in an unduly
contentious, wrangling way. -vitilitigation, n. vit
ilitigious (vit-d-li-tij-<:Is), adj.
vitious intromission. See INTROMISSION.
1709
vitium cierici (vish-ee-;Jm kler-;J-sI). [Latin] See clerical
error under ERROR.
vitium reale (vish-ee-<1m ree-ay-Iee). [Latin "true error"]
Hist. & Scots law. A defect in a title that renders the
movable property nontransferable; speci., an inherent
vice in the title ofanyone who holds a stolen thing, even
if acquired honestly, so that the true owner can reclaim
it. Cf. tABES REALIS QUAE REI INHAERET.
"A person who comes into possession of moveable property
without any title to retain custody thereof is obliged
to restore it to the person truly entitled to the posses
sion thereof .... [P]roperty so acquired is affected by an
inherent vitium reale which prevents the thief or fraudulent
person from conferring a good title on anyone, even a taker
from him in good faith, who has given value and taken
without notice of the thief's defective title; such a person
must return the property to the true owner, or pay compen
sation therefor. ... An exception to the rule of vitium reale
exists in the cases of money, bank-notes and negotiable
instruments ...." 2 David M. Walker, Principles ofScottish
Private Law: Law of Obligations 505-06 (1988).
vitium scriptoris (vish-ee-<1m skrip-tor-is), n. [Latin "the
mistake ofa scribe"] Hist. A clerical error in writing.
vitricus (vi-tr<1-k<1s), n. [Latin] Hist. A stepfather.
viva aqua (VI-V<1 ak-w<1), n. [Latin "living water"] Hist.
Running water; water that comes from a spring or
fountain.
viva pecunia (VI-V<1 pi-kyoo-nee-<1), n. [Latin "living
money"] Hist. Cattle, which obtained this name during
the Saxon period, when they were received as money,
usu. at regulated prices.
viva voce (VI-Vd voh-see also vee-Vd voh-chay), adv. [Law
Latin "with living voice"] (l6c) By word of mouth;
orally. In reference to votes, the term means a voice
vote was held rather than a vote by ballot. In reference
to the examination of witnesses, the term means that
oral rather than written testimony was taken. See voice
vote under VOTE (4). [Cases: Elections C=214.]
viva voce vote. See voice vote under VOTE (4).
vivisection, n. 1. Physiological or pathological experi
mentation on or investigation of living vertebrate
animals using procedures likely to cause severe pain.
2. By extension, questioning or criticism that is intense,
minute, and merciless.
vivum vadium (vl-v;Jm vay-dee-dm). See vadium vivum
under VADIUM.
viz. (viz). abbr. [Latin videlicet] (16c) Namely; that is to
say <the defendant engaged in fraudulent activities,
viz., misrepresenting his gross income, misrepresenting
the value ofhis assets, and forging his wife's signature>.
See VIDELICET.
vocabula artis (voh-kab-Y<1-ld ahr-tis), n. [Latin] Words
ofart. See TERM OF ART.
VOCAL. abbr. VICTIMS OF CHILD ABUSE LAWS.
vocare ad curiam (voh-kair-ee ad kyoor-ee-dm), vb.
[Latin] To summon to court.
vocatio in jus (voh-kay-shee-oh in jas). [Latin] Roman
law. A plaintiff's oral summoning ofa defendant to go voidable
before a magistrate . The vocatio in jus occurred when
the plaintiffwould summon the defendant in formal
words to accompany the plaintiff.
vocation. A person's regular calling or business; one's
occupation or profession.
vociferatio (voh-sif-<1-ray-shee-oh), n. [Latin] Hist. An
outcry; HUE AND CRY.
voco (voh-koh). [Latin "I call"] Hist. I summon; I vouch.
See VOCATIO IN JUS.
Voconian law (v<1-koh-nee-in). See LEX VOCONIA.
voice exemplar. (1954) A sample ofa person's voice used
for the purpose of comparing it with a recorded voice
to determine whether the speaker is the same person.
Although voiceprint identification was formerly inad
missible, the trend in recent years has been toward
admissibility. See Fed. R. Evid. 901. [Cases: Criminal
Law C=339.6; Evidence C=150.]
voiceprint. (1962) A distinctive pattern of curved lines
and whorls made by a machine that measures human
vocal sounds for the purpose ofidentifying an individ
ual speaker. Like fingerprints, voiceprints are thought
to be unique to each person. [Cases; Criminal Law (;::J
339.6; Evidence G-"'; |
to be unique to each person. [Cases; Criminal Law (;::J
339.6; Evidence G-"';:;) 150.]
voice vote. See VOTE (4).
void, adj. (14c) 1. Of no legal effect; null. -The distinc
tion between void and voidable is often of great practical
importance. Whenever technical accuracy is required,
void can be properly applied only to those provisions
that are of no effect whatsoever -those that are an
absolute nullity. -void, avoid, vb. -voidness, n.
facially void. (1969) (Of an instrument) patently void
upon an inspection of the contents. -Also termed
void on itsface.
void ab initio (ab i-nish-ee-oh). (17c) Null fro111 the
beginning, as from the first moment when a contract
is entered into. - A contract is void ab initio ifit seri
ously offends law or public policy, in contrast to a
contract that is merely voidable at the election ofone
party to the contract. [Cases: Contracts (;::J98, 136.]
voidforvagueness. (1814) 1. (Ofa deed or other instru
ment affecting property) haVing such an insufficient
property description as to be unenforceable. [Cases:
Deeds (;::::;)37.] 2. (Of a penal statute) establishing
a requirement or punishment without specifying
what is required or what conduct is punishable, and
therefore void because violative of due process.
Also termed void for indefiniteness. See VAGUE"'ESS
DOCTRINE. [Cases: Constitutional Law G-"';:;)4506;
Criminal Law C=13.1.]
2. VOIDABLE. -Although sense 1 above is the strict
meaning ofvoid, the word is often used and construed
as bearing the more liberal meaning of "voidable."
voidable, adj. (15c) Valid until annulled; esp., (of a
contract) capable of being affirmed or rejected at the
option of one of the parties. 1his term describes a
valid act that may be voided rather than an invalid act
1710 voidable agreement
that may be ratified. Also termed avoidable. [Cases:
Contracts 136.] -voidability, n.
"Most of the disputed questions in the law of infancy turn
upon the legal meaning of the word 'voidable' as applied to
an infant's acts. The natural meaning of the word imports
a valid act which may be avoided, rather than an invalid
act which may be confirmed, and the weight of authority
as well as reason points in the same direction. Certainly,
50 far as executed transfers of property are concerned
the authority of the decisions clearly supports this view."
1 Samuel Williston, The Law Governing Sales of Goods 12,
at 28 (3d ed. 1948).
"The promise of an infant surety is voidable as distin
guished from void. The infant may expressly disaffirm
or assert the defense of infancy when sued at any time
before the expiration of a reasonable time after majority."
Laurence P. Simpson, Handbook on the Law of Suretyship
82 (1950).
voidance, n. (14c) The act of annulling, canceling, or
making void. Also termed avoidance.
void contract. See CONTRACT.
void for indefiniteness. See void for vagueness under
VOID.
void for vagueness. See VOID.
void-for-vagueness doctrine. 1. See VAGUENESS DOC
TRINE. 2. See void for vagueness under VOID.
void judgment. See JUDGMENT.
void legacy. See LEGACY.
void marriage. See MARRIAGE (1).
void on its face. See facially void under VOlD.
void process. See PROCESS.
voir dire (vwahr deer also vor deer or vor dIr), n.
[Law French "to speak the truth"] (17c) 1. A prelimi
nary examination of a prospective juror by a judge or
lawyer to decide whether the prospect is qualified and
suitable to serve on a jury . Loosely, the term refers to
the jury-selection phase ofa trial. [Cases: Jury (:::::> 131.J
2. A preliminary examination to test the competence
of a witness or evidence. [Cases: Witnesses (:::::>77.]
3. Hist. An oath administered to a witness requiring
that witness to answer truthfully in response to ques
tions. -Also spelled voire dire. -Also termed voir dire
exam; examination on the voir dire. -voir dire, vb.
voiture (vwah-t[y]oor), n. Carriage; transportation by
carriage.
volatile stock. See STOCK. volatility. In securities markets, the quality of having
sudden and extreme price changes.
volens (voh-Ienz), adj. [Latin] (1872) Willing. See NOLENS
VOLENS.
volenti non fit injuria (voh-Ien-tr non fit in-joor-ee-<l).
[Law Latin "to a willing person it is not a wrong," Le.,
a person is not wronged by that to which he or she
consents] (17c) The principle that a person who know
ingly and voluntarily risks danger cannot recover for
any resulting injury . This is the type of affirmative
defense that must be pleaded under Fed. R. Civ. P.
8(c). -Often shortened to valenti. See ASSUMPTION OF
THE RISK. [Cases: Negligence Torts (:::::> 126.]
"[Tlhe maxim 'Volenti non fit injuria' ... is certainly of
respectable antiquity. The idea underlying it has been
traced as far back as Aristotle, and it was also recogn
ised in the works of the classical Roman jurists, and in
the Canon Law. In English law, Bracton in his De Legibus
Angliae (ca. A.D. 1250-J258) uses the maxim, though not
with the technicality that attached to it later, and in a Year
Book case of 1305 it appears worded exactly as it is now.
So far as actual citation of the maxim goes, most of the
modern cases use it in (onnexion with harm to the person
rather than to property." P.H. Winfield, A Textbook of the
Law ofTort 13, at 24 (5th ed. 1950).
volition (va-lish-;m orvoh-), n. (17c) 1. The ability to
make a choice or determine something. 2. The act of
making a choice or determining something. 3. The
choice or determination that someone makes. -voli
tional, adj.
volitional test. See IRRESISTIBLE-IMP1;LSE TEST.
Volksgerictshof. See PEOPLE'S COURT (2)
Volstead Act (vol-sted). A federal statute enacted in 1919
to prohibit the manufacture, sale, or transportation of
liquor. Sponsored by Andrew Joseph Volstead of
Minnesota, a famous Prohibitionist, the statute was
passed under the 18th Amendment to the U.S. Consti
tution. When the 21st Amendment repealed the 18th
Amendment in 1933, the Volstead Act was voided.
[Cases: Intoxicating Liquors (:::::> 17.]
volume discount. See DISCOUNT.
volumen (vol-yoo-m<ln), n. [Latin "a rolled-up thing"]
Civil law. A volume. PI. volumina.
volumus (vol-<l-m<ls), vb. [Latin] Hist. We will; it is our
will. This was the first word ofa clause in royal writs
of protection and letters patent. It uses the royal we
the plural first person by which monarchs have tradi
tionally spoken.
voluntariae jurisdictionis (vol-.:m-tair-ee-ee juur-is
dik-shee-oh-nis). [Latin] Hist. Ofor pertaining to vol
untary jurisdiction. See voluntary jurisdiction under
JURISDICTION.
voluntarily, adv. Intentionally; without coercion.
voluntarius daemon (vol-<ln-tair-ee-<ls dee-m"n), n.
[Law Latin "voluntary madman"] Hist. A drunkard;
one who has voluntarily contracted madness by intoxi
cation.
voluntary, adj. (14c) 1. Done by design or intention
<voluntary act>. 2. Unconstrained by interference; not
1711
impelled by outside influence <voluntary statement>.
3. Without valuable consideration or legal obligation;
gratuitous <voluntary gift>. [Cases: Contracts (:::>47.]
4. Having merely nominal consideration <voluntary
deed>. -voluntariness, n.
voluntary abandonment. See ABANDONMENT (3).
voluntary appearance. See APPEARANCE.
voluntary arbitration. See ARBITRATION.
voluntary assignment. See general assignment under
ASSIGNMENT (2).
voluntary association. See ASSOCIATION (3).
voluntary assumption of the risk. See ASSUMPTION OF
THE RISK.
voluntary bankruptcy. See BANKRUPTCY.
voluntary bar. See BAR.
voluntary bond. See BOND (3).
voluntary commitment. See COMMITMENT.
voluntary confession. See CONFESSION.
voluntary consent. See CONSENT (1).
voluntary contract. See gratuitous contract (2) under
CONTRACT.
voluntary conveyance. See CONVEYANCE.
voluntary courtesy. (17c) An act ofkindness performed
by one person toward another, from the free will of
the doer, without any previous request or promise of
reward made by the person who is the object of the
act. No promise of remuneration arises from such
an act.
voluntary deposit. See DEPOSIT (5).
voluntary disclosure ofoffense. See DISCLOSURE (1).
voluntary discontinuance. See NONSUIT (1).
voluntary dismissal. See DISMISSAL (1).
voluntary dissolution. See DISSOLUTION.
voluntary escape. See ESCAPE (3).
voluntary euthanasia. See EUTHANASIA.
voluntary exposure to unnecessary danger. (1883) An
intentional act that, from the standpoint ofa reason
able person, gives rise to an undue risk ofharm. The
phrase suggests that the actor was consciously willing
to take the risk. [Cases: Insurance (:::>2592.]
voluntary ignorance. (1836) Willful obliviousness; an
unknowing or unaware state resulting from the neglect
to take reasonable steps to acquire important knowl
edge. [Cases: Insurance C::)2965; Negligence
212.]
voluntary improvement. See IMPROVEMENT.
voluntary intoxication. See INTOXICATION.
voluntary jurisdiction. See JURISDICTION.
voluntary lien. See LIEN.
voluntary manslaughter. See MANSLAUGHTER.
voluntary oath. See nonjudicial oath (1) under OATIL
vote
voluntary petition. See PETITION.
voluntary pilot. See PILOT.
voluntary pooling. See POOLING.
voluntary-registry law. See ADOPTION-REGISTRY STAT
UTE.
voluntary respite. See RESPITE.
voluntary sale. See SALE.
voluntary search. See SEARCH.
voluntary settlement. See SETTLEMENT (1).
voluntary statement. See STATEMENT.
voluntary stranding. See STRANDING.
voluntary surety. See SURETY.
voluntary suretyship. See SURETYSHIP.
voluntary trust. See TRUST.
voluntary unitization. See UNITIZATION.
voluntary waste. See WASTE (1).
voluntas (vd-Ian-tas), n. [Latin] Hist. 1. Volition, purpose,
or intention; a feeling or impulse that prompts the com
mission ofan act. 2. A will by which a testator plans to
dispose ofan estate; WILL.
voluntas testatoris (v.)-lan-tas tes-t.;J-tor-is). [Latin]llist.
'The intention ofa testator.
voluntatis non necessitatis (vol-;:m-tay-tis non n.;J-ses-i
tay-tis). [Latin] Hist. A matter of choice, not ofneces
Sity.
volunteer. (16c) l. A voluntary actor or agent in a trans
action; esp., a person who, without an employer's assent
and without any justification from legitimate personal
interest, helps an employee in the performance ofthe
employer's business. 2. The grantee in a voluntary
conveyance; a person to whom a conveyance is made
without any valuable consideration. See voluntary con
veyance under CONVEYANCE. 3. Military law. A person
who enters military service voluntarily and is then
subject to the same rules as other soldiers. Cf. DRAFT
(2). 4. A rchaic. See OFFICIOUS INTERMEDDLER.
Volunteers in Service to America. See VISTA.
vote, n. (15c) 1. The expression of one's preference or
opinion in a meeting or election by ballot, show of
hands, or other type of communication <the Republi
can candidate received more votes than the Democratic
candidate>.
absentee vote. See absentee voting under VOTING.
bullet vote. A vote cast for fewer nominees than are
being elected . A bullet vote slightly enhances the
ballot's effect on the outcome. Also termed bullet
ballot.
casting vote. A deciding vote cast by the chair ofa delib
erative assembly when the votes are tied . The U.S.
Constitution gives the Vice President the casting vote
in the Senate. U.S. Const. art. I, 3. [Cases: United
States C::>18.]
"One is, that to secure at all times the possibility of a
definite resolution of the body, it is necessary that the
1712 vote
President should have only a casting vote. And to take the
senator of any State from his seat as senator, to |
2 vote
President should have only a casting vote. And to take the
senator of any State from his seat as senator, to place him
in that of President of the Senate, would be to exchange,
in regard to the State from which he came, a constant
for a contingent vote." The Federalist No. 68 (Alexander
Hamilton).
effective vote. A vote that counts toward a winning
candidate, to the extent needed to win . A vote that
goes to a winning candidate is "effective" to the extent
needed to win, and "excess" beyond that point. For
example, ifa candidate needs IOO votes and gets ISO,
then 50 votes are excess votes and each vote is two
thirds effective and one-third excess. Cf. excess vote;
wasted vote.
excess vote. A vote that counts toward a winning can
didate, beyond the extent needed to win. Cf. effective
vote.
exhausted vote. A preferential vote on which all the
ranked candidates have already been elected or elimi
nated. -Also termed exhausted ballot.
illegal vote. A vote that does not count because it was
cast by someone not entitled to vote or for an ineli
gible choice, or in a form or manner that does not
comply with the applicable rules. See spoiled ballot
under BALLOT (2). [Cases: Elections (::::>227.]
legal vote. A vote cast in the proper form and manner
for an eligible choice by someone entitled to vote.
paired vote. An abstention resulting from a pairing.
See PAIR.
preferential vote. A vote that ranks the choices in order
of preference. A preferential vote may be transfer
able or weighted. -Also termed preferential ballot.
Cf. Single transferable vote; weighted vote. [Cases: Elec
tions (::::>237.]
single transferable vote. A preferential vote that will
migrate or "transfer" away from a candidate whom
it will no longer help . Under transferable voting, a
candidate wins if his or her first-choice votes reach
the number needed to win, or the "threshold." Ifno
candidate reaches the threshold, the least-preferred
candidate is dropped and his or her votes transfer
to the next-preferred candidate on each ballot. If a
candidate reaches the threshold with an excess, that
excess still transfers -after being discounted by
the non-excess fraction needed to reach the thresh
old among the surviving candidates. Each transfer
preserves each vote as long as at least one candidate
that the voter ranked survives. The redistribution
continues until enough candidates reach the thresh
old or the number of surviving candidates equals
the number of representatives still to be elected. See
DROOP QUOTA. Also termed STY; transferable vote;
choice voting. [Cases: Elections .
transferable vote. See single transferable vote.
unintelligible vote. An otherwise legal vote cast in
a form from which the tellers cannot ascertain the
voter's intent. On a secret ballot, no voter may
properly claim an unintelligible vote for the purpose ofexplaining it since the vote may have been cast by
another voter who cannot contradict the claimant
without sacrificing his or her right to secrecy.
vote ofno confidence. See NO-CO:-lFIDENCE VOTE.
wasted vote. A vote that does not count toward any
winning candidate. Cf. eflective vote; excess vote.
weighted vote. A nontransferable preferential vote
whose strength is allocated among the ranked pref
erences either by the voter or according to a series of
fixed weights. [Cases: Elections (::=>237.]
2. The total number of votes cast in an election <the
incumbent received 60% ofthe vote>. [Cases: Elections
L] 3. The majority or supermajority needed for a
certain question <a two-thirds vote>. [Cases: Elections
(:::>237.]
majority vote. See MAJORITY (2).
plurality vote. See PLURALITY.
tie vote. An equally divided vote . A tie vote is not
a deadlock unless the assembly is obliged to act, for
example when electing an officer to an office that will
otherwise be vacant. Cf. DEADLOCK. [Cases: Elections
unanimous vote. A vote in which every voter concurs.
See UNANIMOUS (2).
winner-take-all vote. An election in which the majority
(or sometimes the plurality) elects all the representa
tives. Cf. UNIT RULE; PROPORTIONAL REPRESENTA
TION; proportional voting under VOTING. [Cases:
Elections (::::>237.]
4. The act of voting, usu. by a deliberative assembly
<the Senate postponed the vote on the gun-control
bill>. [Cases: States (::::>35.] vote, vb.
counted vote. Parliamentary law. A vote taken in a way
that individually counts each voter . Examples of a
counted vote are a show of hands, a standing vote, a
roll-call vote, or a written ballot. See DIVISION (1).
division vote. See DIVISIO:-l (I).
lobby vote. A counted vote taken by each voter passing
through a lobby between tellers. Also termed teller
vote.
rising vote. 1. See standing vote. 2. A vote ofapprecia
tion demonstrated by the members standing, some
times silently but usu. with applause. -Also termed
rising vote ojthanks.
roll-call vote. A counted vote by roll call, in which the
secretary calls each member's name, in answer to
which the member casts aloud his or her vote . The
U.S. Constitution provides that "the Yeas and Nays of
the Members of either House on any question shall,
at the Desire of one fifth of those Present, be entered
on the Journal." U.S. Canst. art. I, 5, cl. 3. Also
termed vote by yeas and nays; yeas and nays. See roll
call under CALL (1). [Cases: United States C:=> 18.]
serpentine vote. A standing vote in which the voters
count off and sit down, with the count progressing up
1713
one row and down the next until each member on the
side of the question being counted has voted.
standing vote. A counted vote taken by each voter
standing up when his or her side of the question
is counted. Also termed rising vote; standing
division.
teller vote. See lobby vote.
viva voce vote. See voice vote.
voice vote. A vote taken by the voters collectively
answering aloud, usu. with "aye" or "nay," when their
side ofthe question is called. -Also termed viva voce
vote. [Cases: Elections C=>214.]
vote by show of hands. A vote taken by the voters
raising their hands when their side ofthe question is
counted. -Often shortened to show ofhands.
vote by yeas and nays. See roll-call vote.
vote dilution. See DILUTION (3).
vote immediately. See CLOSE DEBATE.
vote ofno confidence. See NO-CONFIDENCE VOTE.
voter. (I6c) 1. A person who engages in the act ofvoting.
2. A person who has the qualifications necessary for
voting. -Also termed (in sense 2) legal voter; qualified
voter. [Cases: Elections C':"59-87.]
registered voter. A person who is qualified to vote and
whose name is recorded in the voting district where
he or she resides. [Cases: Elections (,.~~95-119.]
voting. (16c) The casting of votes for the purpose of
deciding an issue.
absentee voting. (1932) 1. Participation in an election
by a qualified voter who is unable to appear at the
polls on election day. 2. ]he practice of allowing
voters to participate in this way. -Also termed (in
sense 1) absentee ballot; absentee vote. See absentee
ballot under BALLOT (2). Cf. early voting. [Cases: Elec
tions (;:::~ 126(6),216.1.]
choice voting. See single transferable vote under VOTE
(1).
class voting. (1941) A method ofshareholder voting in
which different classes of shares vote separately on
fundamental corporate changes that affect the rights
and privileges ofthat class. Also termed voting by
class; voting by voting group. [Cases: Corporations
C=>197.J
cumulative voting. (1884) A system in which each voter
may cast more than one vote for the same candidate.
Cumulative voting helps a minority elect at least
one representative. It is common in shareholder elec
tions. [Cases: Corporations C=>200, 283(2).]
early voting. (1984) Voting before the day ofan election,
esp. during a period designated for that purpose .
Unlike with absentee voting, taking advantage of
early voting does not require the voter to swear to the
inability to come to the polling place on election day.
ct absentee voting. [Cases: Elections C=>205.l.j
first-past-the-post voting. See plurality voting. voting
Hare- Ware voting. See instant-runoff voting.
instant-runoff voting. A system of preferential voting
that mimics a runoff election by using each voter's
ranked preferences instead of a second round of
voting. See runoff election under ELECTION (3).
Also termed Hare- Ware voting; West Australian plan.
Abbr. IRV. [Cases: Elections C=>237.J
limited voting. A system in which each voter must cast
fewer votes than the number ofrepresentatives being
elected.
low-total voting. A system of weighted preferential
voting that adds up the ranked preferences -"1" for
a first choice, "2" for a second choice, and so forth
so that the most-preferred candidate wins by having
the lowest totaL See preferential voting; weighted vote
under VOTE (1). [Cases: Elections C=>237.J
majority voting. A system in which each voter may cast
one vote per representative being elected, and a simple
majority is required for election. [Cases: Corporations
C:.>283(2).]
noncumulative voting. (1956) A corporate voting
system in which a shareholder is limited in board
elections to voting no more than the number ofshares
that he or she owns for a single candidate . The result
is that a majority shareholder will elect the entire
board of directors. -Also termed straight voting.
[Cases: Corporations (::.-:>283(2).]
plurality voting. Election by plurality. See PLURAL
ITY. -Also termed first-past-the-post voting.
preferential voting. A system in which each voter ranks
the choices in order of preference . A preferential
vote may be transferable or weighted. -Also termed
rank-order voting. See Single transferable vote under
VOTE (1); weighted vote under VOTE (1). [Cases: Elec
tions C=>237.]
proportional voting. A system of transferable prefer
ential voting in a multi-representative election. See
preferential vote under VOTE (1); single transferable
vote under VOTE (1). -Also termed proportional rep
resentation. [Cases: Elections C=>237.]
rank-order voting. See preferential voting.
straight voting. See noncumulative voting.
two-round voting. A system in which the voting occurs
in two rounds, with the first round determining the
candidate's eligibility for the second round . 'The
second round may be a runoff between the top two
candidates from the first round, an election by plural
ity among candidates who won their political parties'
nominations in the first round, or an election by plu
rality among the candidates from the first round who
reached a certain threshold. See runoff election under
ELECTION (3). [Cases: Elections (;=>237.]
voting by class. See class voting.
voting by voting group. See class voting.
voting by yeas and nays. See roll-call vote under VOTE
(4).
1714 voting agreement
voting agreement. See POOLING AGREEMENT.
voting by class. See class voting under VOTING.
voting by voting gronp. See class voting under VOTING.
voting group. (1972) 1. A classification of sharehold
ers by the type of stock held for voting on corporate
matters. 2. Collectively, the shareholders falling within
such a classification.
voting member. See MEMBER.
Voting Rights Act. The federal law that guarantees a
citizen's right to vote, without discrimination based on
race, color, or previous condition ofservitude. 42 VSCA
1971-1974. [Cases: Elections 0'7.: 12.)
voting security. See voting stock under STOCK.
voting stock. See STOCK.
voting-stock rights. A stockholder's right to vote stock
in the affairs of the company. -Typically, holders of
common stock have one vote for each share. Holders
ofpreferred stock usu. have the right to vote when pre
ferred dividends are in default for a specified period.
[Cases: Corporations
voting trust. See TRUST.
voting-trust certificate. A certificate issued by a voting
trustee to the beneficial holders of shares held by the
voting trust. _ A voting-trust certificate may be as
readily transferable as the underlying shares; it carries
with it all the incidents ofownership except the power
to vote. See voting trust under TRUST. [Cases: Corpora
tions G'::;) 198.1(3).]
votum (voh-tam), n. [Latin] Hist. A vow; a promise. See
dies votorum under DIES.
votum captandae mortis alienae (voh-tam kap-tan
dee mor-tis ay-Iee-ee-nee or al-ee-). [Latin) Hist. An
earnest desire for another's death. -An heir could not
sell his or her rights to an ancestor's estate because such
a transaction would likely induce votum captandae
mortis alienae.
vouch, vb. (14c) 1. To answer for (another); to personally
assure <the suspect's mother vouched for him>. 2. To
call upon, rely on, or cite as authority; to substanti
ate with evidence <counsel vouched the mathematical
formula for determining the statistical probability>. 3.
Hist. To call into court to warrant |
sel vouched the mathematical
formula for determining the statistical probability>. 3.
Hist. To call into court to warrant and defend, usu. in a
fine and recovery. See FINE (1).4. His!. To authenticate
(a claim, etc.) by vouchers.
vouchee (vow-chee), n. Hist. 1. A person vouched into
court; one who has been vouched over. See VOUCH
OVER. 2. A person cited as authority in support ofsome
fact.
voucher, n. (17c) 1. Confirmation of the payment or
discharge of a debt; a 2. A written or printed
authorization to disburse money. 3. Hist. A person who
calls on another person (the vouchee) as a witness, esp.
in support of a warranty of title. 4. Hist. The tenant in
a writ of right. voucher to warranty. Hist. The calling into court of a
person who has warranted lands, by the person war
ranted, to come and defend a lawsuit.
vouching-in. (1849) 1. At common law, a procedural
device by which a defendant may give notice of suit
to a third party who may be liable to the defendant on
the subject-matter of the suit, so that the third party
will be bound by the court's decision. -Although this
device has been largely replaced by third-party practice,
it remains available under the Federal Rules of Civil
Procedure. Humble Oil & Refining Co. v. Philadelphia
Ship IVfaintenance Co., 444 F.2d 727, 735 (3d Cir. 1971).
[Cases: Federal Civil Procedure ~281; Parties ~49.)
2. The invitation ofa person who is liable to a defendant
in a lawsuit to intervene and defend so that, ifthe invi
tation is denied and the defendant later sues the person
invited, the latter is bound by any determination offact
common to the two lawsuits. See VCC 2-607. [Cases:
Indemnity~40, 79.)3. IMPLEADER.
vouch over, vb. (16c) To cite (a person) into court in one's
stead. See VOUCHEE (1).
vox signata (vahks sig-nay-ta). [Law Latin] Hist. A tech
nical word; a formal word. Pi. voces signatae.
voyage. Maritime law. The passing ofa vessel by sea from
one place, port, or country to another. -Courts gener
ally hold that the term includes the entire enterprise,
not just the route. [Cases: Shipping 165.]
foreign voyage. A voyage to a port or place within
the territory of a foreign nation. -Ifthe voyage is
from one port in a foreign country to another port in
the same country, it is considered a foreign voyage.
[Cases: Seamen ~18.]
freighting voyage. A voyage that involves a vessel's
transporting cargo between terminal points.
trading voyage. A voyage that contemplates a vessel's
touching and stopping at various ports to traffic in,
buy and sell, or exchange commodities on the owners'
and shippers' account.
voyage charter. See CHARTER (8).
voyage insurance. See INSURANCE.
voyage policy. See INSURANCE POLICY.
voyeur (voy-y;}r also vwah-y;}r), n. (1900) A person who
observes something without participating; esp., one
who gains pleasure by secretly observing another's
genitals or sexual acts. [Cases: Disorderly Conduct
~123.]
voyeurism, n. (1900) Gratification derived from observ
ing the genitals or sexual acts ofothers, usu. secretly.
[Cases: Disorderly Conduct 123.] voyeuristic,
adj.
V.P. abbr. See VICE PRESIDENT.
vs. abbr. VERses.
vulgar abuse. See verbal abuse under ABUSE.
vulgaris purgatio (val-gair-is par-gay-shee-oh), n. [Law
Latin] See ORDEAL (1).
1715
vulgar purgation. See PURGATION.
vulgar substitution. See SUBSTITUTION (4).
vulgo concepti (v31-goh bn-sep-tr), n. [Latin] Hist. Ille
gitimate children; bastards. vulture fund
vulgo quaesiti (v31-goh kwi-sI-tr), n. [Latin] Hist.
Spurious children; the offspring ofpromiscuity, so that
the true fathers are unknowable.
vulnerable adult. See ADULT.
vulture fund. See MUTUAL FUND.
w
W-2 form. (18c) (1948) Tax. A statement of earnings
and taxes withheld (including federal, state, and local
income taxes and FICA tax) during a given tax year.
The W-2 is prepared by the employer, provided to each
employee, and filed with the Internal Revenue Service.
Cf. w-4 FORM. [Cases: Internal Revenue ~~)4849.1
W-4 form. (1955) Tax. A form indicating the number of
personal exemptions an employee is claiming and that
is used by the employer in determining the amount of
income to be withheld from the employee's paycheck
for federal-income tax purposes. -Also termed
Employee's Withholding Allowance Certificate. Cf. W-2
FORM. [Cases; Internal Revenue C:::'-4849.]
wacreour (wah-kroor), n. [Law French) Hist. A
vagrant.
Wade hearing. (1969) Criminal law. A pretrial hearing
in which the defendant contests the validity of his or
her out-of-court identification. -Ifthe court finds
that the identification was tainted bv unconstitutional
methods, the prosecution cannot ~se the identifica
tion and must link the defendant to the crime by other
means. United States v. Wade, 388 U.S. 218, 87 S.Ct.
1926 (1967). [Cases: Criminal Law C:::'-339.11(2).]
wadia (way-dee-;), r!. [Law Latin] Hist. Pledges.
wadset, n. Scots law. 1. A mortgage. -Also termed (in
Roman law) fiducia. 2. A pledge or pawn.
wadset, vb. Scots law. 1. To mortgage. 2. To pledge.
wafer seal. See SEAL.
wafter (waf-t;)r), r!. [Middle English "convoyer"] Hist.
An English naval officer appointed under Edward IV
to protect fishermen, esp. on the coast of Norfolk and
Suffolk. -Also spelled waftor.
waga (way-g;), n. [Law Latin) Hist. A measure ofweight;
a measure ofgoods.
wage, n. (usu. pI.) (14c) Payment for labor or services, usu.
based on time worked or quantity produced; specif.,
compensation of an employee based on time worked
or output of production. -Wages include every form
of remuneration payable for a given period to an indi
vidual for personal services, including salaries, com
missions, vacation pay, bonuses, and the reasonable
value of board, lodging, payments in kind, tips, and
any similar advantage received from the employer. An
employer usu. must withhold income taxes from wages.
Cf. SALARY. [Cases: Labor and Employment <>:~j 168.]
covered wages. Wages on which a person is required
to pay social-security taxes. [Cases: Internal Revenue
<.r~4374.]
current wages. Wages for the current period; wages that
are not past due. front wages. Prospective compensation paid to a
victim ofjob discrimination until the denied position
becomes available. [Cases: Civil Rights (;:>1471,1571,
1583(2).]
minimum wage. The lowest permissible hourly rate
of compensation for labor, as established by federal
statute and required of employers engaged in inter
state commerce. 29 USCA 206. [Cases: Labor and
Employment C::::>2337.J
noncovered wages. Wages on which a person is not
required to pay SOCial-security taxes. [Cases: Internal
Revenue C=4374.]
real wages. Wages representing the true purchasing
power ofthe dollar, derived by dividing a price index
into money wages.
wage, vb. 1. To engage in (a war, etc.). 2. Archaic. To give
security for (a performance, etc.). Cf. GAGE.
Wage and Hour Division. The division of the Employ
ment Standards Administration in the U.S. Depart
ment ofLabor responsible for enforcing the Fair Labor
Standards Act, the Family and Medical Leave Act, the
Employee Polygraph Protection Act, and other work
place-related statutes and regulations. -Abbr. WHD.
See EMPLOYMENT STANDARDS ADMINISTRATION.
wage-and-hour law. A law (such as the federal Fair
Labor Standards Act) governing minimum wages and
maximum working hours for employees. [Cases: Labor
and Employment ~.J2215.]
wage-and-prke controls. A system ofgovernment-man
dated maximum prices that can be charged for differ
ent goods and services or paid to various workers in
different jobs.
wage-and-price freeze. See FREEZE.
wage assignment. 1. See attachment of wages under
ATTACHMENT (1). 2. INCOME-WITHHOLDING ORDER.
3. ASSIGNMENT (2).
wage-assignment order. See INCOME-WITHHOLDING
ORDER.
wage-earner's plan. See CHAPTER 13.
wager, n. (l4c) 1. Money or other consideration risked
on an uncertain event; a bet or gamble. 2. A promise
to pay money or other consideration on the occurrence
of an uncertain event. 3. See wagering contract under
CONTRACT. [Cases: Gaming 1.] -wager, vb.
wagerer, n.
wagering contract. See CONTRACT.
wager of battle. See TRIAL BY COMBAT.
wager oflaw. Hist. A method ofproof in which a person
defends against a claim by swearing that the claim is
groundless, and by enlisting others (compurgators) to
1717 waiver
swear to the defendant's credibility. Also termed
gager del ley (gay-jdr del lay); vadiatio legis (vad-ee-ay
shee-oh lee-jis). See COM PURGATION.
wager policy. See INSURANCE POLICY.
wages. See WAGE.
wage-withholding. See attachment of wages under
ATTACHMENT (1).
wage-withholding order. See INCOME-WITHHOLDING
ORDER.
Wagner Act. See NATIONAl. LABOR RELATIONS ACT.
wagonage (wag-d-nij). 1. Transportation by a wagon. 2.
The fee for carriage by wagon. 3. A group ofwagons.
waif, n. (l4c) 1. An abandoned article whose owner is
unknown, esp. something stolen and thrown away by
the thief in flight, usu. through fear of apprehension.
At cornman law, ifa waif, whether stolen or merely
abandoned, was seized before the owner reclaimed
it, the title vested in the Crown. The owner was thus
punished for leaVing the property or for failing to
pursue the thief and attempting to recover the property.
Today, however, the general rule is that a waif passes to
the state in trust for the true owner, who may regain it
by proving ownership.
"Waifs, bona waviata, are goods stolen, and waived or
thrown away by the thief in his flight. for fear of being
apprehended. These are given to the king by the law, as a
punishment upon the owner, for not himself pursuing the
felon, and taking away his goods from him. And therefore
if the party robbed do his diligence immediately to follow
and apprehend the thief (which is called making fresh
suit) or do convict him afterwards, or procure evidence
to convict him, he shall have his goods again." 1 William
Blackstone, Commentaries on the Laws ofEngland 286-87
(1765).
2. Hist. A homeless person, esp. a woman or child; a
social outcast. See WAIVERY.
"(In the thirteenth century] a woman, though she cannot be
outlawed, can be 'waived: declared a 'waif,' and 'waiver'
seems to have all the effects of outlawry." 1 Frederick
Pollock & Frederic William Maitland, History ofEnglish Law
Before the Time ofEdward I 482 (2d ed. 1898).
wainable (way-nd-bdl), adj. Archaic. (Ofland) plowable;
tillable.
wainage (way-nii), n. Hist. 1. lhe plow, team, and other
implements used by a person (esp. a villein) to cultivate
the soil; instruments of husbandry. 2. Cultivated land
or the profits from it. Also termed wainagium; way
nagium (way-nay-jee-<'lm); (in sense 2) gainage.
wainbote. See BOTE (1).
wait-and-see principle. (1989) A modification to the rule
against perpetuities, under which a court may deter
mine the validity ofa contingent future interest based
on whether it actually vests within the perpetuities
period, rather than on whether it possibly could have
vested outside the period. -Also termed second-look
doctrine. [Cases: Perpetuities
waiting clerk. Hist. An officer who waits in attendance
on the court of chancery. The office of the waiting clerk was abolished in 1842 by the Court of Chancery
Act. St. 5 & 6 Viet. ch. 103.
waiting period. (1897) A period that must expire before
some legal right or rem |
. 103.
waiting period. (1897) A period that must expire before
some legal right or remedy can be enjoyed or enforced.
For example, many states have waiting periods for
the issuance of marriage licenses or the purchase of
handguns.
waive (wayv), n. Archaic. A woman who has by her
conduct deprived herself of the protection ofthe law; a
female outlaw . The term "outlaw" usu. referred only
to a male. See OUTLAW (1), (2).
waive, vb. (l4c) 1. To abandon, renounce, or surrender (a
claim, privilege, right, etc.); to give up (a right or claim)
voluntarily. Ordinarily, to waive a right one must do
it knowingly with knowledge of the relevant facts.
[Cases: Estoppel <::=>52.10.] 2. To refrain from insist
ing on (a strict rule, formality, etc.); to forgo. 3. Hist .
To declare someone a waif. See WAIF (2).
waiver (way-var), n. (17c) l. The voluntary relinquish
ment or abandonment express or implied of a
legal right or advantage; FORFEITURE (2) <waiver of
notice>. The party alleged to have waived a right
must have had both knowledge of the existing right
and the intention of forgOing it. Cf. ESTOPPEL. [Cases:
Estoppel <::=>52.10.]
'The term waiver is one of those words of indefinite con
notation in which our legal literature abounds; like a cloak,
it covers a multitude of sins." William R. Anson, Principles
of the Law of Contract 419 (Arthur L Corbin ed., 3d Am.
ed. 1919).
'''Waiver' is often inexactly defined as 'the voluntary
relinquishment of a known right.' When the waiver is
reinforced by reliance, enforcement is often said to rest
on 'estoppel.' ... Since the more common definition of
estoppel is limited to reliance on a misrepresentation of
an existing fact, reliance on a waiver or promise as to the
future is sometimes said to create a 'promissory estoppel:
The common definition of waiver may lead to the incorrect
inference that the promisor must know his legal rights
and must intend the legal effect of the promise. But ... it
is sufficient if he has reason to know the essential facts."
Restatement (Second) of Contracts 84 cmt. b (1979).
"Waiver is often asserted as the justification for a decision
when it is not appropriate to the circumstances." Robert
E. Keeton & Alan I. Widiss, Insurance Law 6.8, at 719
(1998).
"Although it has often been said that a waiver is 'the inten
tional relinquishment of a known right,' this is a misleading
definition. What is involved is not the relinquishment of a
right and the termination of the reciprocal duty but the
excuse ofthe nonoccurrence ofor a delay in the occurrence
of a condition of a duty." E. Allan Farnsworth, Contracts
8.5, at 561 (3d ed. 1999).
express waiver. (I8c) A voluntary and intentional
waiver. [Cases: Estoppel <::=>52.10(2).]
implied waiver. (I8c) A waiver evidenced by a party's
decisive, unequivocal conduct reasonably inferring
the intent to waive. [Cases: Estoppel (;::-:;,>52.10(3).]
"An implied waiver may arise where a person has pursued
such a course of conduct as to evidence an intention to
waive a right, or where his conduct is inconsistent with
any other intention than to waive it. Waiver may be inferred
from conduct or acts putting one off his guard and leading
him to believe that a right has been waived. Mere silence,
1718 waiver by election of remedies
however, is no waiver unless there is an obligation to i
speak." 28 Am. Jur. 2d Estoppel and Waiver 160, at
845-46 (1966).
prospective waiver. (1889) A waiver ofsomething that
has not yet occurred, such as a contractual waiver of
future claims for discrimination upon settlement of
a lawsuit.
subject-matter waiver. A waiver that may result when
a party voluntarily discloses a communication or
privileged material about a particular topic to a third
party. A party's voluntary disclosure may lead a
court to find an implied waiver that extends to all
other communications relating to the same subject
matter. [Cases: Witnesses (;::::>219.]
waiver ofnotice. Parliamentary law. 'The waiver that
occurs when a defective notice for a meeting is issued
but every member attends and participates without
objecting to the defect.
2. The instrument by which a person relinquishes or
abandons a legal right or advantage <the plaintiff must
sign a waiver when the funds are delivered>.
jury waiver. A form signed by a criminal defendant
who relinquishes the right to have the trial conducted
before a jury. [Cases: Jury (;::::>29(6).]
lien waiver. A written and signed waiver of a sub
contractor's mechanic's lien rights, usu. submitted
to enable the owner or general contractor to receive
a draw on a construction loan. [Cases: Mechanics'
Liens (;::::>208.]
waiver by election ofremedies. (1873) A defense arising
when a plaintiff has sought two inconsistent remedies
and by a decisive act chooses one of them, thereby
waiving the other. [Cases: Election of Remedies
1.]
waiver hearing. See transfer hearing under HEARING.
waiver ofclaims and defenses. (1975) 1. The intentional
relinquishment by a maker, drawer, or other obligor
under a contract of the right to assert against the
assignee any claims or defenses the obligor has against
the assignor. [Cases: Assignments (;::::> 103; Bills and
Notes e=---'314; Secured Transactions 185.] 2. lhe
contractual clause providing for such a waiver.
waiver ofcounsel. (1870) A criminal defendant's inten
tional relinquishment of the right to legal representa
tion. To be valid, a waiver of counsel must be made
voluntarily, knowingly, and intelligently. [Cases:
Criminal Law (;::::> 1750-1757.]
waiver ofdefenses. Real estate. A document by which a
mortgagor acknowledges that the mortgage is good and
valid for the full amount of the mortgage note . This
document ensures that the mortgagor has no defenses
to the mortgage. Also termed estoppel certificate;
no-setoff certificate; declaration ofno defenses. [Cases:
Mortgages C=>415.]
waiver of exemption. (1846) 1. A debtor's voluntary
relinquishment of the right to an exemption from a
creditor's levy or sale ofany part ofthe debtor's personal property by judicial process. [Cases: Exemptions
89-99; Homestead C=> 169-176.] 2. The contractual
clause expressly providing for such a waiver. [Cases:
Exemptions C=>92; Homestead (;::::> 170.J
waiver ofimmunity. (1883) The act ofgiving up the right
against self-incrimination and proceeding to testify.
See IMMUNITY (3). [Cases: Witnesses C=>305.]
waiver of notice. See WAIVER (I).
waiver-of-premium clause. Insurance. A provision for
a waiver of premium payments after the insured has
been disabled for a specified length of time, such as six
months. [Cases: Insurance<~=>2035.1
waiver ofprotest. A relinquishment by a party to a nego
tiable instrument of the formality of protest in case of
dishonor. See PROTEST (2). [Cases: Bills and Notes
422.]
waiver ofservice. A defendant's voluntary submission to
the jurisdiction made by signing an acknowledgment of
receipt ofthe petition and stating that he or she waives
all further service. [Cases: Process C=>67.]
waiver of tort. (1815) The election to sue in quasi-con
tract to recover the defendant's unjust benefit, instead
ofsuing in tort to recover damages. See implied-in-law
contract under CONTRACT. [Cases: Action C=>28.]
"A person upon whom a tort has been committed and who
brings an action for the benefits rect'ived by the tortfea
sor is sometimes said to 'waive the tort.'" Restatement of
Restitution 525 (1937).
"'Waiver of tort' is a misnomer. A party only waives a tort in
the sense that he elects to sue in quasicontract to recover
the defendant's unjust benefit rather than to sue in tort to
recover damages; he has a choice of alternative remedies.
But the tort is not extinguished. Indeed it is said that it is
a sine qua non of both remedies that he should establish
that a tort has been committed." Lord Goff of Chieveley &
Gareth Jones, The Law ofRestitution 605 (3d ed. 1986).
waivery. Hist. The act of putting a woman outside the
protection ofthe law . At common law, a woman could
not be "outlawed" because she was not considered "in
law" that is, she could not undertake legal proceed
ings on her own. By Bracton's day, the effect of outlaw-
ing a woman was achieved by "waiving" her the act
being called waivery.
wakening. Scots law. The revival ofan action in which no
steps had taken for at least a year and a day.
walk, vb. (1958) Slang. 1. To be acquitted <though
charged with three thefts, Robinson walked each time>.
2. To escape any type of real punishment <despite the
seriousness of the crime, Selvidge paid only $750: he
walked>.
walker, n. Hist. A forester who inspects an assigned area
ofland.
Walker Process claim. Patents. A counterclaim in an
infringement suit, seeking a declaratory judgment that
the patent is invalid because its owner defrauded the
Patent Office . The claim is based on antitrust law,
alleging that the patentee wrongfully tried to monopo
lize a market. Walker Process Equip., Inc. v. Food Mach.
1719
& Chem., 382 U.S. 172,86 S.Ct. 347 (1965). -Also
termed Walker Process defense.
walkout. 1. STRIKE (1). 2. The act of leaving a work
assignment, meeting, or other event as a show of
protest. [Cases: Labor Relations C:::>290.]
wall. An erection of stone, brick, or other material
raised to varying heights, esp. inside or surrounding a
building, for privacy, security, or enclosure.
ancient wall. A party wall that has stood for at least
20 years, thus giving each party an easement right to
refuse to allow the other party to remove or substan
tially change the walL
party wall. A wall that divides two adjoining, sepa
rately owned properties and that is shared by the
two property owners as tenants in common. Also
termed common wall. [Cases: Party Walls C:::: 1-10.]
"There appears to be no precise legal definition of the
term 'party wall.' Four possible meanings are as follows: (a)
Tenancy in common: the two adjoining owners are tenants
in common of the wall. (b) Divided: the wall is divided lon
gitudinally into two strips, one belonging to each of the
neighbouring owners. (c) Divided with easements: the wall
is divided as in (b), but each half is subject to an easement
of support in favour ofthe owner of the other half. (d) Own
ership subject to easement: the wall belongs entirely to one
of the adjoining owners, but is subject to an easement or
right in the other to have it maintained as a dividing wall."
Robert E. Megarry & M.P. Thompson, A Manual of the Law
of Real Property 303-04 (6th ed. 1993).
wallia (wahl-ee-,,), n. [Law Latin] Hist. A wall (such as a
mound or bank) erected in marshy areas for protection
against the sea; a seawall.
Walsh Act. A statute, originally enacted in 1926, giving
federal courts the power to subpoena and compel the
return, testimony, and (if requested) production ofdoc
uments or other items ofU.S. citizens or residents who
are abroad. -The subpoena is available for criminal
proceedings, including grand-jury proceedings. 28
USCA 1783. [Cases: Grand Jury \.~36.2; Witnesses
. C=)6.]
Walsh-Healey Act. A federal law, enacted in 1936, stipu
lating that government contractors must: (1) pay their
workers no less than the prevailing minimum wage;
(2) observe the eight-hour day and 40-hour workweek
(with time-and-a-halffor work exceeding those hours);
(3) employ no convict labor and no females under 18 or
males under 16 years ofage; and (4) maintain sanitary
working conditions. 41 USCA 35 et seq. Also
termed Public Contracts Act; Walsh-Healey Public
Contracts Act.
wampum (wom-p"m), n. Hist. Indian money consisting
of shells, beads, or animal pelts. _ In 1637, it became
the first medium of exchange for the New England
colonies by order of the General Court of Massachu
setts, because England had not provided the colonies
with a standard of exchange. The Court ordered that
"wampampege should passe at 6 a penny for |
provided the colonies
with a standard of exchange. The Court ordered that
"wampampege should passe at 6 a penny for any sum
under 12d." Wampum was used as the medium of
exchange, esp. for small transactions, until 1652, when
the General Court ordered the first metallic currency. wanton
lhe last recorded exchange in wampum was in New
York in 1701.
Wands test. Patents. A judicial test of "undue experi
mentation" for determining if a patent application's
specification teaches one skilled in the art how to
make and work the claimed invention. In re Wands,
858 F.2d 731 (Fed. Cir. 1988). The test takes account
ofeight factors: (1) how much experimentation would
be needed, (2) how much guidance is given, (3) whether
there is a working example, (4) the nature ofthe inven
tion, (5) the state ofthe prior art, (6) the level ofskill of
those in the art, (7) how predictable or unpredictable
the art is, and (8) the breadth ofthe claims. The factors
(often called Wands factors) are illustrative rather than
mandatory. See UNDUE EXPERIMENTATION. [Cases:
Patents C::::99.]
wanlass (wahn-lds). Rist. An ancient form of tenure
requiring the tenant to drive deer to a stand so that
the lord can take a shot. -Also spelled wanlace.
wantage (wahnt-ij), n. A deficiency of something; specif.,
a vessel's deficiency ofnot being full, due to leakage.
wanted person. A person sought by a law-enforcement
agency because the person has escaped from custody
or an arrest warrant has been issued for the person's
arrest.
want ofamicable demand. Louisiana law. A defensive
pleading by a defendant who seeks to avoid, delay, or
defeat the plaintiff's petition . A defendant may (1)
refuse to participate in the suit (a declinatory excep
tion), (2) seek to delay the litigation in the suit (a
dilatory exception), or (3) seek to dismiss or defeat the
suit (a peremptory exception). See declinatory excep
tion, dilatory exception, peremptory exception under
EXCEPTION (1).
want ofconsideration. (18c) The lack of consideration
i for a contract. See CONSIDERATION (1). Cf. FAILURE OF
I CONSIDERATION. [Cases: Contracts C::::54(l), 84; Sales
want ofjurisdiction. A court's lack of power to act in
a particular way or to give certain kinds of relief. - A
court may have no power to act at all, may lack author
ity over a person or the subject matter of a lawsuit, or
may have no power to act until the prerequisites for its
jurisdiction have been satisfied. -Also termed lack oj
jurisdiction. See JURISDICTION. [Cases: Courts C::::39,
40; Federal CourtsC=>30.]
want ofprosecution. (17c) Failure ofa litigant to pursue
the case <dismissal for want of prosecution>. -Also
termed lack ofprosecution; no progress. -Abbr. w.o.p.
[Cases: Federal Civil Procedure C-~1758; Pretrial Pro
cedure (;:::::') 581.]
I want of repair. (17c) A defective condition, such as a
condition on a highway making it unsafe for ordinary
travel. [Cases: Automobiles C::::252; Municipal Corpo
rations (:::)757(]).]
wanton (wahn-t"n), adj. (14c) Unreasonably or mali
ciously risking harm while being utterly indifferent
1720 wanton and reckless misconduct
to the consequences. -In criminal law, wanton usu. ! war ofaggression. A war that the attacking nation ini
connotes malice (in the criminal-law sense), while
reckless does not. Cf. RECKLESS; WILLFUL. [Cases:
Criminal Law (;::J23; Negligence (>-::>275.]
"Wanton differs from reckless both as to the actual state
of mind and as to the degree of culpability. One who is
acting recklessly is fully aware of the unreasonable risk
he is creating, but may be trying and hoping to avoid any
harm. One acting wantonly may be creating no greater risk
of harm. but he is not trying to avoid it and is indifferent to
whether harm results or not. Wanton conduct has properly
been characterized as 'vicious' and rates extreme in the
degree of culpability. The two are not mutually exclusive.
Wanton conduct is reckless plus, so to speak." Rollin M.
Perkins & Ronald N. Boyce, Criminal Law 879-80 (3d ed.
1982).
wanton and reckless misconduct. See wanton miscon
duct under MISCOKDUCT.
wanton misconduct. See MISCONDUCT.
wanton negligence. See gross negligence under NEGLI
GENCE.
wantonness, rI. (14c) Conduct indicating that the actor
is aware of the risks but indifferent to the results.
Wantonness usu. suggests a greater degree of culpa
bility than recklessness, and it often connotes malice
in criminal-law contexts. Cf. RECKLESSNESS. [Cases:
Criminal Law (::::::> 20, 23; Damages (;::J87(l), 91.5(1);
Negligence wanton, adj.
wapentake (wahp-.:m-tayk or wap-), n. [fro Saxon waepen
"weapons" + tac "touch"] Hist. 1. In some English
counties, a division corresponding to the hundred or
ward in other counties. See HUNDRED. 2. The court
within such a division. 3. A bailiff who works in such
a court.
war. 1. Hostile conflict by means ofarmed forces, carried
on between nations, states, or rulers, or sometimes
between parties within the same nation or state; a
period of such conflict <the Gulf War>. - A state of
war may also exist without armed conflict; for example,
the treaty formally ending the World War II state ofwar
between the United States and Japan was Signed seven
years after the fighting ended in 1945. [Cases: War and
National Emergency (;::J 1.]
civil war. An internal armed conflict between people of
the same nation; esp. (usu. cap.), the war from 1861 to
l865, resulting from the Confederate states' attempted
secession from the Union.
imperfect war. A war limited in terms of places,
persons, and things.
mixed war. A war between a nation and private indi
viduals.
perfect war. A war involving an entire nation against
another.
private war. A war between private persons.
public war. A war between two nations under authOrity
oftheir respective governments.
solemn war. A war formally declared esp. by public
declaration by one country against another. tiates for reasons other than self-defense. -This type
of war is considered a crime against international
peace under customary international law.
2. A dispute or competition between adversaries <fare
wars are common in the airline industry>. 3. A struggle
to solve a pervasive problem <America's war against
drugs>.
warantizare. See WARRANTIZARE.
War Clause. (1943) U.S. Const. art. 1, 8, cl. 11-14, giving
Congress the power to declare war. -Also termed
War Powers Clause. See WAR POWER. [Cases: \Var and
National Emergency (;::J2.]
war contribution. Jrlt'llaw. An extraordinary payment
imposed by an occupying power on the population of
an occupied territory during wartime. -Often short
ened to contribution. [Cases: War and National Emer
gency (;::J 14.]
war crime. Conduct that violates international laws gov
erning the conduct of international armed conflicts.
_ Examples ofwar crimes are the killing ofhostages,
abuse ofcivilians in occupied territories, abuse ofpris
oners of war, and devastation that is not justified by
military necessity. [Cases: War and National Emer
gency (;::J 11.]
ward. (15c) 1. A person, usu. a minor, who is under a
guardian's charge or protection. See GUARDIAN (1).
[Cases: Guardian and Ward 9.5.]
permanent ward. (1927) A ward who has been assigned
a permanent guardian, the rights of the natural
parents having been terminated by a juvenile court.
[Cases: Guardian and Ward (;::J9.5; Infants
155.]
temporary ward. (1901) A minor who is under the
supervision of a juvenile court but whose parents'
parental rights have not been terminated. [Cases:
Infants (;::J 154.1.]
ward-in-chancery. His!. An infant under the superin
tendence ofthe chancellor.
ward ofadmiralty, A seaman -so called because of
the legal view that a seaman, in contractual matters,
should be treated as a beneficiary and the other con
tracting party as a fidUciary because ofthe perceived
inequitability of their bargaining positions. [Cases:
Seamen (;::J 1.]
ward ofthe state. (1832) A person who is housed by,
and receives protection and necessities from, the gov
ernment. -Also termed state's ward.
2. A territorial division in a city, uSU. defined for
purposes of city government. [Cases: Municipal Cor
porations ~"40.] 3. The act ofguarding or protecting
something or someone. 4. Archaic. One who guards. 5.
CASTLE-GUARD. -Formerly also termed warda.
warda (wor-d<:)), n. [Law Latin] Hist. Wardship; guard
ianship.
wardage. See WARDPENNY.
1721
warden. (Bc) 1. A person in charge of something <game
warden> <port warden>; esp., the official in charge ofa
prison, jail, or park <prison warden> <game warden>.
[Cases: Prisons ~390.1 2. SERGEANT-AT-ARMS (4).
warden of the cinque ports (singk ports). Hist. A mag
istrate with jurisdiction over the five cinque ports.
This office was created in imitation ofthe Roman policy
ofstrengthening coasts against enemies. The warden,
formally called the Lord Warden, presided over the
Court ofthe Lord Warden ofthe Cinque Ports, which
was created in the 14th century and, over time, vari
ously exercised civil, equity, and admiralty jurisdic
tion. -Formerly termed guardian ofthe cinque ports.
See CINQUE PORTS.
ward holding. Scots law. The feudal tenure known in
England as knight service. See KNIGHT SERVICE.
ward-horn. Hist. The duty of keeping watch and ward
with a horn to blow in the event of a surprise. See
WATCH AND WARD.
ward-in-chancery. See WARD.
wardite. Hist. A fine that a tenant was required to pay
upon failing to fulfill the duty ofcastle-guard. See CAS
TLE-GUARD.
wardmote (word-moht). Hist. 1. A court maintained in
every London ward. Also termed wardmote court;
inquest. 2. A meeting of a ward.
ward ofadmiralty. See WARD.
ward ofthe state. See WARD.
wardpenny, n. Hist. 1. Money paid in lieu of military
service. 2. Money paid to the sheriff or castellans in
exchange for watching and warding a castle. -Also
termed wardage; warth.
wardship. (lSc) 1. Guardianship of a person, usu. a
minor. [Cases: Guardian and Ward ~1.] 2. The condi
tion ofbeing a ward. 3. Hist. The right ofthe feudal lord
to guardianship ofa deceased tenant's minor heir until
the heir reached the age of majority. -Also termed (in
senses 1 & 3) guardage.
wardship in chivalry. Wardship as a feudal incident to
the tenure ofknight-service.
wardship in copyholds. Wardship by which the lord is
guardian ofan infant tenant by special custom.
wardstaff, n. Hist. A staff carried by an authority; esp., a
constable's or watchman's staff.
wardwit, n. Hist. 1. An immunity or exemption from the
duty of warding or contributing to warding. 2. A fine
for failing to watch and ward. -Also termed warwit;
wardwite.
warectare (wor-dk-tair-ee), vb. [Law Latin "to let lie
fallow"] Hist. To plow land in the spring and then let it
lie fallow for a better wheat crop the next year.
warehouse. A building used to store goods and other
items. warfare
bonded warehouse. A special type ofprivate warehouse
used to store products subject to customs duties. See
WAREHOUSE SYSTEM.
warehouse book. A book used by merchants to account
for quantities of goods received, shipped, and in
stock.
warehouseman. See WAREHOUSER.
warehouseman's lien. See warehousers lien under LIEN.
warehouser. One who, as a business, keeps or stores the
goods ofanother for a fee. -The transaction in which
a warehouser engages is a bailment for the benefit of
both parties, and the bailee is liable for ordinary neg
ligence. Also termed warehouseman. See BAILEE.
[Cases: Warehousemen <8='3.]
warehouse receipt. A document evidencing title to
goods stored with someone else; esp., a receipt issued
by a person engaged in the business of storing goods
for a fee. - A warehouse receipt, which is considered a
document oftitle, may be a negotiable instrument and
is often used for financing with inventory as security.
See BAILMENT. [Cases: Warehousemen ~1LJ
warehouser's lien. See LIEN.
warehouse system. A |
ases: Warehousemen ~1LJ
warehouser's lien. See LIEN.
warehouse system. A system of maintaining bonded
warehouses so that importers can either store goods
for reexportation without paying customs duties or
store the goods without paying duties until the goods
are removed for domestic consumption. See bonded
warehouse under WAREHOUSE.
warehouse-to-warehouse cover. Insurance coverage for
goods protecting against damage at any time during the
shipping process, including the loading and unload
ing of the goods. See COMPLETE-OPERATION RULE. Cf.
COMING-TO-REST DOCTRINE. [Cases: Insurance
2681.]
warehousing. 1. A mortgage banker's holding of mort
gages until the resale market improves. 2. A corpo
ration's giving of advance notice of a tender offer to
institutional investors, who can then buy stock in the
target company before public awareness of the takeover
inflates the stock's price. See TENDER OFFER.
warfare. 1. The act ofengaging in war or military conflict.
See WAR. [Cases: War and National Emergency
2. Loosely, the act of engaging in any type ofconflict.
biological warfare. The use of biological or infectious
agents in war, usu. by delivering them via airplanes
or ballistic missiles. Cf. chemical warfare.
biochemical warfare. Warfare in which both biologi
cal and chemical weapons are used. See biological
warfare, chemical warfare.
chemical warfare. Warfare in which deadly chemical
agents, such as nerve gas, are used as weapons, usu.
by delivering the chemicals via shells, missiles, or
bombs. -Chemical weapons were first used in \\Torld
War L The first international treaty forbidding the use
ofboth chemical and biological weapons, the Protocol
for the Prohibition ofthe Use in War of Asphyxiating,
Poisonous or Other Gases, and ofBiological Methods
1722 war-mongering propaganda
ofWarfare was signed in 1925 and came into force in
1928. The United States is a signatory but with reser
vations. Cf. biological warfare.
economic warfare. 1. A hostile relationship between
two or more countries in which at least one tries to
damage the other's economy for economic, politi
cal, or military ends. 2. The collective measures that
might be taken to achieve such ends. [Cases: War and
National Emergency(;= 12,14.]
guerrilla warfare. Hostilities that are conducted by
individuals or small groups who are usu. not part of
an organized army and who fight by means ofsurprise
attacks, ambushes, and sabotage . Formerly, it was
thought that the hostilities had to be conducted in
enemy-occupied territory. Typically, guerrilla warfare
is carried out only when geographical conditions are
favorable and when the civilian population is at least
partly cooperative.
land warfare. Hostilities conducted on the ground, as
opposed to at sea or in the air.
war-mongering propaganda. See PROPAGANDA.
WARN (worn). abbr. WORKER ADJUSTMENT AND
RP,TRAINING NOTIFICATION ACT.
warning. (bef. 12c) The pointing out ofa danger, esp. to
one who would not otherwise be aware ofit. State and
federal laws (such as 21 USCA 825) require warning
labels to be placed on potentially dangerous materials,
such as drugs and equipment. [Cases: Products Liabil
ity 133.]
adequate warning. (l885) A warning that reason
ably alerts a product's average user to a potential
hazard, and the nature and extent of the danger.
Four elements have been articulated as comprising
an adequate warning: (1) notice that a severe hazard
exists, (2) a description of the hazard's nature, (3) a
description of the hazard's possible consequences,
and (4) instructions on how to avoid the hazard. In
addition, the warning must be prominently displayed,
and may have to illustrate the nature and severity of
the hazard with pictographs. [Cases: Products Liabil
ity (;=133.]
warnistura (wor-n,,-st[y]oor-;:l), n, [Law Latin] Hist. Fur
niture; provision,
warnoth (wor-noht). Hist. A defunct custom by which
a tenant who failed to pay rent on a set day had to pay
double the amount due, and on failing a second time
had to pay triple (and so on).
war ofaggression. See WAR.
war power. (18c) The constitutional authority ofCongress
to declare war and maintain armed forces (U.S. Const.
art. I, 8, cIs. 11-14), and of the President to conduct
war as commander-in-chief (U.S. Const. art. II, 2, el,
1). [Cases: War and National Emergency (;::>2.]
War Powers Clause. See WAR CLAUSE.
war-powers resolution. (1954) A resolution passed by
Congress in 1973 (over the President's veto) restricting
the President's authority to involve the United States in foreign hostilities without congressional approval,
unless the United States or one of its territories is
attacked. 50 USCA 1541-1548. [Cases: War and
National Emergency
warrandice (wahr-;:ln-dis or -dIS). Scots law. An obli
gation to indemnify the grantee or buyer of land if
another person establishes a superior title and takes
possession.
personal warrandice. An obligation to indemnify that
binds the grantor and the grantor's heirs.
real warrandice. An obligation by which certain lands
are made over as security for lands conveyed to the
grantee and will be transferred to the grantee ifhe
or she is evicted from the conveyed lands by a third
party.
warrant, n. (l4c) 1. A writ directing or authorizing
someone to do an act, esp. one directing a law enforcer
to make an arrest, a search, or a seizure.
administrative warrant. (1951) A warrant issued by
a judge at the request of an administrative agency.
This type of warrant is sought to conduct an
administrative search. See administrative search
under SEARCH. -Also termed administrative search
warrant. [Cases: Searches and Seizures
anticipatory search warrant. See SEARCH WARRANT.
arrest warrant. (1894) A warrant, issued only on
probable cause, directing a law-enforcement officer
to arrest and bring a person to court. -Also termed
warrant ofarrest. [Cases: Criminal Law C=>215
220.]
bench warrant. (17c) A writ issued directly by a judge
to a law-enforcement officer, esp, for the arrest of
a person who has been held in contempt, has been
indicted, has disobeyed a subpoena, or has failed to
appear for a hearing or trial. A bench warrant is
often issued for the arrest of a child-support obligor
who is found in contempt for not having paid the
support obligation. [Cases: Criminal Law C=,}263.]
blanket search warrant. See SEARCH WARRANT,
border warrant. A writ ofarrest or other warrant con
cerning debts owed, issued on one side ofa national
border for execution on the other side; esp., such a
warrant issued on either side of the border between
England and Scotland.
commitment warrant. See warrant ofcommitment.
death warrant. (I8c) A warrant authorizing a warden
or other prison official to carry out a death sentence .
A death warrant typically sets the time and place for a
prisoner's execution. [Cases: Sentencing and Punish
ment (;::> 1795.]
distress warrant. (I8c) 1. A warrant authorizing a court
officer to distrain property. See DISTRESS. 2. A writ
allowing an officer to seize a tenant's goods for failing
to pay rent due to the landlord. [Cases: Landlord and
Tenant (;::>270(6).]
1723 warrant
escape warrant. (l8c) 1. A warrant directing a peace I known by Sight but not by name. This type of
officer to rearrest an escaped prisoner. 2. Hist. A
warrant granted to retake a prisoner who had escaped
from a royal prison after being committed there .
The warrant was obtained on affidavit from the judge
of the court in which the action had been brought,
and was directed to all sheriffs throughout England,
commanding them to retake and commit the prisoner
to the nearest jail.
extradition warrant. (1S76) A warrant for the return of
a fugitive from one jurisdiction to another. Cf. rendi
tion warrant. [Cases: Extradition and Detainers
12,36.]
fugitive warrant. (1900) A warrant authorizing law
enforcement officers to take into custody a person
who has fled from one state to another to avoid pros
ecution or punishment.
general warrant. (16c) 1. Hist. A warrant issued by
the English Secretary of State for the arrest of the
author, printer, or publisher of a seditious libel,
without naming the persons to be arrested. General
warrants were banned by Parliament in 1766.
"A practice had obtained in the secretaries office ever since
the restoration, grounded on some clauses in the acts for
regulating the press, of issuing general warrants to take
up (without naming any person in particular) the authors,
printers and publishers of such obscene or seditious libels,
as were particularly specified in the warrant. When those
acts expired in 1694, the same practice was inadvertently
continued, in every reign and under every administration,
except the four last years of queen Anne, down to the year
1763: when such a warrant being issued to apprehend the
authors, printers and publishers of a certain seditious libel,
its validity was disputed; and the warrant was adjudged by
the whole court of king's bench to be void, in the case of
Money v. Leach. Trin. 5 Ceo. III. FR. After which the issuing
of such general warrants was declared illegal by a vote of
the house of commons." 4 William Blackstone, Commentar
ies on the Laws ofEngland 288 n.i (1769).
2. A warrant giving a law-enforcement officer broad
authority to search and seize unspecified places or
persons; a search or arrest warrant that lacks a suf
ficiently particularized description of the person
or thing to be seized or the place to be searched .
General warrants are unconstitutional because they
fail to meet the Fourth Amendment's specificity
requirements.
"But though there are precedents of general warrants to
search all suspected places for stolen goods, these are
not at common law legal, because it would be extremely
dangerous to leave it to the discretion of a common officer
to arrest what person, or search what houses he thinks fit.
And in the great case of Money v. Leach, it was declared
by Lord Mansfield, that a warrant to search for, and secure
the person and papers of the author, printer and publisher
of a libel, is not only illegal in itself, but is so improper on
the face of it, that it will afford no justification to an officer
acting under its sanction. And by two resolutions of the
House of Commons such general warrants were declared
to be invalid." 1Joseph Chitty, A Practical Treatise on the
Criminal Law66 (2d ed. 1826).
John Doe warrant. (1900) A warrant for the arrest of
a person whose name is unknown. A John Doe
warrant may be issued, for example, for a person warrant is permitted in a few states, but not in federal
practice.
justice's warrant. See peace warrant.
landlord's warrant. (1824) A type of distress warrant
from a landlord to seize the tenant's goods, to sell
them at public sale, and to compel the tenant to pay
rent or observe some other lease stipulation. See
DISTRAIN; DISTRESS.
no-knock search warrant. See SEARCH WARRANT.
outstanding warrant. (1899) An unexecuted arrest
warrant.
peace warrant. (18c) A warrant issued by a justice of
the peace for the arrest ofa specified person. -Also
termed justice's warrant.
possessory warrant. (1850) A process, similar to a
search warrant, used under certain circumstances by
a plaintiff to search for and recover property wrong
fully taken or held by another.
preliminary warrant. (1859) A warrant to bring a
person to court for a preliminary hearing on probable
cause.
probation-violation warrant. See violation warrant.
rendition warrant. (1881) A warrant requesting the
extradition of a fugitive from one jurisdiction to
another. Cf. extradition warrant. [Cases: Extradition
and Detainers C=:> 16,36.]
search warrant. See SEARCH WARRANT.
surreptitious-entry warrant. (1985) A warrant autho
rizing a law officer to enter and observe an ongoing
criminal operation (such as an illegal drug lab).
tax warrant. (lSc) An official process issued for col
lecting unpaid taxes and under which property may
be seized and sold.
valid warrant. A warrant that is regular in form and
is issued by a court, body, or official having both the
authority to issue the warrant for the purpose stated
and jurisdiction over the person named, all the requi
site proceedings for its proper issuance having taken
place. [Cases: Searches and Seizures 101.]
violation warrant. A warrant issued for the arrest
of a convict who has violated the terms of proba
tion, parole, or supervised release. Also termed
(narrowly) probation-violation warrant. [Cases:
Pardon and Parole C=:>Sl; Sentencing and Punish
ment C::;,20l2.]
warr |
Pardon and Parole C=:>Sl; Sentencing and Punish
ment C::;,20l2.]
warrant ofarrest. See arrest warrant.
warrant ofcommitment. A warrant committing a
person to custody. --Also termed commitment
warrant.
warrant upon indictment or information. (1903) An
arrest warrant issued at the request of the prosecutor
for a defendant named in an indictment or informa
tion. Fed. R. Crim. P. 9.
1724 warrant
2. A document conferring authority, esp. to payor
receive money.
deposit warrant. A warehouse receipt used as security
for aloan.
dock warrant. See DOCK RECEIPT.
interest warrant. 1. An order by a corporation direct
ing a bank to pay the interest due on a note, bond, or
other debt to a corporate creditor. 2. A document by
which a creditor, usu. a company, asks an insurer to
pay all the interest due on the insurer's notes, bonds,
or other debts held by the creditor.
municipal warrant. An order to draw money from a
municipality's treasury for the payment ofthe munic
ipality's expenses or debts. [Cases: Municipal Corpo
rations <>895.]
tax-anticipation warrant. A warrant that is issued
to raise public money and that is payable out of tax
receipts when collected.
treasury warrant. An order in the form of a check on
which government disbursements are paid. [Cases:
United States <>87.]
3. An order by which a drawer authorizes someone to
pay a particular sum ofmoney to another. [Cases: Bills
and Notes <>1.]
county warrant. A warrant drawn by a county official,
directing the county treasurer to pay a sum ofmoney
out ofcounty funds to bearer, to a named individual,
or to the named individual's order. [Cases: Counties
<>163.]
4. Securities. An instrument granting the holder a long
term (usu. a five- to ten-year) option to buy shares at
a fixed price. -It is commonly attached to preferred
stocks Of bonds. Also termed stock warrant; sub
scription warrant. [Cases: Corporations <>72.]
warrant, vb. (14) 1. To guarantee the security of (realty
or personalty, or a person) <the store warranted the
safety ofthe customer's jewelry>. 2. To give warranty of
(title); to give warranty oftitle to (a person) <the seller
warrants the property's title to the buyer>. [Cases: Cov
enants <>45,67.] 3. To promise or guarantee <warrant
payment>.
"Even today lawyers use the verb 'to warrant' meaning to
promise without necessarily indicating that the promise
is a warranty." P.S. Atiyah, An Introduction to the Law of
Contract 145 n.1 (3d ed. 1981).
4. To justify <the conduct warrants a presumption of
negligence>. 5. To authorize <the manager warranted
the search of the premises>.
warrant arrest. See lawful arrest under ARREST.
Warrant Clause. (1962) The clause ofthe Fourth Amend
ment to the U.S. Constitution requiring that warrants
be issued only on probable cause. [Cases: Arrest
63.1; Searches and Seizures (~23, 24.]
warrant creditor. See CREDITOR.
warranted arrest. See ARREST.
warranted search. See SEARCH. warrantee (wor-;:>n-tee or wahr-). A person to whom a
warranty is given; esp., a person who receives a written
warranty. -The term also sometimes applies to the
beneficiary ofan implied warranty.
warrantia chartae. See DE WARRANTIA CHARTAE.
warrantia custodiae (w;:>-ran-shee-.:l k.:l-stoh-dee-ee), n.
[Law Latin] LUst. A writ for a purchaser ofland held in
knight's service against the seller (and heirs), who had
warranted that the land was free of wardship when a
wardship was later claimed.
warrantia diei. See DE WARRANTIA DIEL
warrantizare (wor-.:ln-t.:l-zair-ee), vb. [Law Latin] Hist.
To warrant by covenant (in a deed of conveyance)
to defend the grantee's title and possession. Also
spelled warantizare.
warrantless arrest. See ARREST.
warrantless search. See SEARCH.
warrant ofarrest. See arrest warrant under WARRANT
(1).
warrant of attorney. 1. POWER OF ATTORNEY (1). 2.
Archaic. Written authority given by a client to a lawyer
to appear in court and to confess judgment in favor of
a specified party. -It usu. instructed the attorney not
to bring any action, seek a writ of error, or file a bill
in equity that might delay the judgment. The warrant
was typically given as security for an obligation on
which judgment was authorized. Cf. CONFESSION OF
JUDGMENT; COGNOVIT. [Cases: Federal Civil Procedure
<>2396; Judgment <>43.1
"A warrant of attorney was not required to be under seal,
though it generally was so. In order to guard against any
imposition in procuring debtors to execute warrants of
attorney or cognovits in ignorance of the effect of such
instruments, it is provided that a warrant of attorney to
confess judgment in any personal action, or cognovit
actionem, given by any person, shall not be of any force,
unless there is present some attorney of one of the superior
courts on behalf of such person, expressly named by him
and attending at his request, to inform him of the nature
and effect of such warrant or cognovit, before the same
is executed ...." Joshua Williams, Principles of the Law of
Personal PFoperty 125 (11th ed, 1881).
warrant of commitment. See WARRANT (1).
warrant of confession. See CONFESSION OF JUDGMENT.
warrant officer. 1. OFFICER (2). 2. SERGEANT-AT-ARMS
(4).
warrantor (wor-;m-tor or -t<lf orwahr-). (15c) A person
who gives a written warranty or becomes obligated
under an implied warranty. See 15 USCA 2301(5).
warrant recall, n. A procedure for removing from
government computers information about canceled
warrants in order to avoid repeated or mistaken
arrests.
warrant to sue and defend. Hist. 1. Written authority
given by a client to a lawyer to authorize commence
ment or defense ofa lawsuit. 2. A special warrant from
the Crown authorizing a party to appoint an attorney
to sue or defend on the party's behalf.
warrant upon indictment or information. See WARRANT
(1).
warranty (wor-;}n-tee or wahr-), n. (l4c) 1. Property. A
covenant by which the grantor in a deed promises to
secure to the grantee the estate conveyed in the deed,
and pledges to compensate the grantee ifthe grantee is
evicted by someone having better title . The covenant
is binding on the grantor's heirs. Historically, a war
rantor was expected to turn over land. But cash com
pensation could be substituted. See COVENANT (4). Cf.
quitclaim deed under DEED. [Cases: Covenants C:::J45,
67.]
collateral warranty. (l6c) A warranty that is made by a
stranger to the title, and that consequently runs only
to the covenantee and not with the land. [Cases: Cov
enants (;::::J45, 67.]
general warranty. (17c) A warranty against the claims
ofall persons. [Cases: Covenants (;::::J47, 67.]
lineal warranty. Hist. A warranty existing when an heir
derives title to land from the warrantor; a warranty
from the same ancestor as the one from whom the
land derived.
special warranty. (17c) A warranty against any person's
claim made by, through, or under the grantor or the
grantor's heirs. [Cases: Covenants (;::::J48, 67.]
2. Contracts. An express or implied promise that some
thing in furtherance of the contract is guaranteed by
one of the contracting parties; esp., a seller's promise
that the thing being sold is as represented or promised.
Although a court may treat a misrepresentation as an
implied warranty, in general a warranty differs from a
representation in four principal ways: (1) a warranty
is conclusively presumed to be material, while the
burden is on the party claiming breach to show that
a representation is material; (2) a warranty must be
strictly complied with, while substantial truth is the
only requirement for a representation; (3) a warranty
is an essential part ofa contract, while a representation
is usu. only a collateral inducement; and (4) an express
warranty is usu. written on the face of the contract,
while a representation may be written or oral. Cf. CON
DITIoN (2), (3); GUARANTEE (1). [Cases; Contracts
205.5; Sales (;::::J246-288.5.]
"[Tlwo points must be borne in mind. In the first place, the
words 'condition' and 'warranty' are not invariably kept as
distinct as accuracy of definition demands; and in insur
ance law especially 'warranty' is very commonly used in the
sense ascribed to 'condition' .... In the second place, the
injured party, if he chooses to waive his right to repudiate
the contract on breach of a condition, may still bring an
action for such damages as he has sustained." William R.
Anson, Principles of the Law of Contract 223 (Arthur L.
Corbin ed., 3d Am. ed. 1919).
"The terms 'warranty' and 'condition' are generally used
interchangeably, for all practical purposes, and they
refer to representations or promises by the insureds,
incorporated into the contract itself, on the truthfulness
or fulfillment of which it is agreed that the rights of the
insured shall depend. The primary differences between a
mere representation and a warranty or condition are (1)
while the insurer has the burden of proving the material
ity of a misrepresentation before it will be grounds for avoidance, the materiality of a warranty or condition is
conclusively presumed; and (2) while a representation will
not be grounds for avoidance as long as it is substantially
true. a warranty or condition must be strictly complied
with in order to preclude avoidance. As with the majority
view in representations, good or bad faith on the part of
the insured is irrelevant." John F. Dobbyn, Insurance Law
in a Nutshell 201 (3d ed. 1996).
as-is warranty. (1976) A warranty that goods are sold
with all existing faults. See AS IS. [Cases: Sales
267.]
construction warranty. (1968) A warranty from the
seller or bUilding contractor of a new home that
the home is free of structural, electrical, plumbing,
and other defects and is fit for its intended purpose.
[Cases; Contracts (;::::J205.35(2).]
deceptive warranty. (1975) A warranty containing false
or fraudulent representations or promises. [Cases:
Antitrust and Trade Regulation (;::::J204.]
express warranty. (l7c) A warranty created by the overt
words or actions of the seller . Under the UCC, an
express warranty is created by any of the following:
(1) an affirmation offact or promise made by the seller
to the buyer relating to the goods that becomes the
basis of the bargain; (2) a description of the goods
that becomes part of the basis of the bargain; or (3) a
sample or model made part of the basis ofthe bargain.
UCC 2-313. [Cases; Contracts (;::::J20S.1O; Sales (;::::J
259.]
"An express warranty arises from the contract itself, from
the 'dickered' aspects of the individual bargain. Any affir
mation or promise relating to the goods, any description of
the goods, and any sample or model of the goods becomes
an express warranty if it is 'part ofthe basis of the bargain.'"
1 Julian B. McDonnell & Elizabeth J. Coleman, Commercial
and Consumer Warrantien 1.02[11, at 17 (1991).
extended warranty. (1936) An additional warranty
often sold with the purchase ofconsumer goods (such
as appliances and motor vehicles) to cover repair costs
not otherwise covered by a manufacturer's standard
warranty, by extending either the standard-warranty
coverage period or the range of defects covered.
Also termed extended service warranty; extended
service contract. [Cases: Sales (;::::J279.]
full warranty. A warranty that fully covers labor and
materials for repairs . Under federal law, the war
rantor must remedy the consumer product within
a reasonable time and without charge after notice of
a defect or malfunction. 15 USCA 2304. See MAG
NUSON-MOSS WARRANTY ACT. Cf. limited warranty.
[Cases: Antitrust and Trade Regulation C=204.]
implied warranty. (18c) An obligation imposed by
the law when there has been no representation or
promise; esp., a warranty arising by operation oflaw
because ofthe circumstances ofa sale, rather than by
the seller's express promise. [Cases: Contracts (,=.
205.15; Sales (',--J 262.5.]
implied warranty offit |
,=.
205.15; Sales (',--J 262.5.]
implied warranty offitness for a particular purpose.
(1923) A warranty implied by law if the seller has
reason to know ofthe buyer's special purposes for the
item that the item is suitable for those purposes.
Sometimes shortened to warranty offitness. [Cases:
Contracts C:=-20S.1S(3); Sales C:=-273(I).]
"Those unfamiliar with the differences between the
warranty of merchantability (fitness for the ordinary
purposes for which such goods are used) and the warranty
of fitness for a particular purpose often confuse the two;
one can find many opinions in which the judges used
the terms 'merchantability' and 'fitness for a particular
purpose' interchangeably. Such confusion under the Code
is inexcusable." 1 James j. White & Robert S. Summers,
Uniform Commercial Code 910, at 527 (4th ed. 1995).
implied warranty ofhabitability. (1900) In a residen
tiallease, a warranty from the landlord to the tenant
that the leased property is fit to live in and that it will
remain so during the term ofthe lease. -Also termed
covenant ofhabitability. -Ihis warranty usu. applies
to residential property, but a few courts, esp. in Utah,
have applied it to commercial property as well. [Cases:
Landlord and Tenant (;;:>125(1).]
implied warranty of merchantability. (1896) A
merchant seller's warranty implied by law
that the thing sold is fit for its ordinary purposes. _
Under the UCc, an implied warranty of merchant
ability arises whenever a merchant sells goods unless
the agreement expressly provides otherwise. UCC
2-314. -Sometimes shortened to warranty ofmer
chantability. [Cases: Contracts C:=-205.15(3); Sales
C:=-272.]
"The implied warranty of merchantability attaches when
the seller is a merchant with respect to the goods involved
in the exchange. Accordingly, the product must meet
certain standards; it must pass without objection in the
trade under the contract description and it must be fit for
the ordinary purposes for which such goods are used. The
concepts of marketability, operability, and repairability
have emerged as varying criteria for merchantable goods."
1Julian B. McDonnell & ElizabethJ. Coleman, Commercial
and Consumer Warranties 1 1.02[1], at 17 (1991).
limited warranty. (1871) A warranty that does not
fully cover labor and materials for repairs. _ Under
federal law, a limited warranty must be clearly labeled
as such on the face of the warranty. See MAGNUSON
MOSS WARRANTY ACT. Cf.full warranty. [Cases: Sales
C:=-279.]
personal warranty. (18c) A warranty arising from an
obligation to pay all or part ofthe debt of another.
presentment warranty. (1965) An implied promise
concerning the title and credibility ofan instrument,
made to a payor or acceptor upon presentment ofthe
instrument for payment or acceptance. UCC 3-417,
3-418. [Cases: Banks and Banking C:=-149, 174; Bills
and Notes (,~296, 326.]
transfer warranty. (1964) 1. An implied promise
concerning the title and credibility of an instru
ment, made by a transferor to a transferee and, ifthe
transfer is by indorsement, to remote transferees.
UCC 3-417, 4-207. [Cases: Banks and Banking C:=
149, 174; Bills and Notes 326.] 2. A warranty
made by a transferee of a document of title upon a
transfer of the document for value to the immediate
transferee. UCC 7-507. [Cases: Carriers C:;;)S8.] warranty ab initio (ab i-nish-ee-oh). (12006) An inde
pendent subSidiary promise whose breach does not
discharge the contract, but gives to the injured party
a right of action for the damage sustained as a result
of the breach. _ Ab initio means that the warranty
existed from the contract's inception. Cf. warranty ex
post facto. [Cases: Contracts (>:;::;318; Sales C:=-282.]
warranty against infringement. A merchant's warranty
that the goods being sold or licensed do not violate
any patent, copyright, trademark, or other intellec
tual-property claim. -The warranty does not arise
if the buyer provides the seller with the specifica
tions for the goods purchased. Under 2-312(3) of
the Uniform Commercial Code, the warranty against
infringement is a part of the warranty of title unless
it is explicitly disclaimed.
warranty ex post facto (eks pohst fak-toh). (1961) A
broken condition for which the injured party could
void the contract, but decides instead to continue the
contract, with a right ofaction for the broken condi
tion (which amounts to a breached warranty). -The
warranty is expost facto because it was not originally
part of the contract. It arises only after the injured
party elects to continue the contract, thereby reducing
the broken condition to a breached warranty. See
CONDITION (2). Cf. warranty ab initio. [Cases: Con
tracts Sales C:=-282.]
warranty ofactual title. See warranty oftitle.
warranty ofassignment. (18c) An assignor's implied
warranty that he or she (1) has the rights assigned,
(2) will do nothing to interfere with those rights, and
(3) knows of nothing that impairs the value of the
assignment. [Cases: Assignments 0:',;:>97.]
warranty ofauthorship. Copyright. An author's con
tractual warranty that the work is an original work
by that author. [Cases: Copyrights and Intellectual
Property C:=-49.]
warranty offitness. See implied warranty offitness for
a particular purpose.
warranty ofmerchantability. See implied warranty of _
merchantability.
warranty oftitle. (18c) A warranty that the seller or
assignor of property has title to that property, that
the transfer is rightful, and that there are no liens or
other encumbrances beyond those that the buyer or
assignee is aware ofat the time ofcontracting. -This
warranty arises automatically whenever anyone sells
goods. Also termed warranty ofactual title. [Cases:
Covenants C:=-38-48, 62-67; Sales
written warranty. (1807) A warranty made in
writing; specif., any written affirmation or promise
by a supplier of a consumer product to a buyer (for
purposes other than resale), forming the basis of the
bargain and providing that the material or workman
ship is free of defects or will be repaired or replaced
free ofcharge ifthe product fails to meet the required
specifications. 15 USCA 2301. [Cases: Sales C:=
260.]
1727
Y2K warranty. See Y2K WARRANTY.
3. Insurance. A pledge or stipulation by the insured
that the facts relating to the person insured, the thing
insured, or the risk insured are as stated. [Cases: Insur
ance C::::;;2967, 3036.]
affirmative warranty. A warranty -express or
implied that facts are as stated at the beginning of
the policy period . An affirmative warranty is usu. a
condition precedent to the policy taking effect. [Cases:
Insurance C::::;;2967.]
executory warranty. A warranty that arises when
an insured undertakes to perform some executory
stipulation, such as a promise that certain acts will
be done or that certain facts will continue to exist.
[Cases: Insurance (;:::::c 3036.]
promissory warranty. A warranty that facts will
continue to be as stated throughout the policy period,
such that a failure of the warranty provides the insurer
with a defense to a claim under the poHcy. Also
termed continuing warranty. [Cases: Insurance
3036.]
warranty clause. 1. A contractual clause containing
a warranty. 2. Oil & gas. A provision in an oil-and
gas lease by which the lessor guarantees that title is
without defect and agrees to defend it. -Ifthe warranty
is breached, the lessor may be held Hable to the lessee to
the extent that the lessor has received payments under
the lease. Presence ofa warranty in an oil-and-gas lease
may also cause after-acquired interests to pass from
the lessor to the lessee by application of estoppel by
deed. [Cases: Estoppel (;:::::c,23; Mines and Minerals (;:::::c
73.1(5).]
warranty deed. See DEED.
warren (wor-;m orwahr-,m). 1. A place for the preserva
tion of certain wildlife (such as pheasants, partridges,
or rabbits). 2. A privilege to keep wildlife or game in a
warren. 3. The area to which the privilege extends.
free warren. A warren privilege giving the grantee the
sole right to kill the wildlife to the extent ofthe grant
ee,s warren area. -Also termed libera warrena.
"Free warren is a ... franchise, erected for preservation
or custody ... of beasts and fowls of warren; wh ich being
ferae naturae, everyone had a right to kill as he could; but
upon the introduction of the forest laws ... these animals
being looked upon as royal game and the sole property
of our savage monarchs, this franchise of free warren was
invented to protect them; by giving the grantee a sole and
exclusive power of killing such game ... on condition of
his preventing other persons. A man therefore that has
the franchise of warren is in reality no more than a royal
gamekeeper; but no man, not even a lord of a manor, could
by common law justify sporting on another's soil, or even
on his own, unless he had the liberty of free warren." 2
William Blackstone, Commentaries on the Laws ofEngland
38-39 (1766).
war-risk insurance. See INSURANCE.
Warsaw Convention. Int'llaw. A treaty (to which the
United States is a party) negotiated in Warsaw, Poland,
in 1929, consisting of uniform rules governing claims waste
air travel. Cf. MONTREAL AGREEMENT. Carriers
~J307; Treaties
"Under the [Warsaw] Convention ... air carriers are abso
lutely liable up to a preset monetary ceiling for any aCCident
in which a passenger suffers bodily injury or death, as
long as the accident took place on board the aircraft or
in the process of any of the operations of embarking or
disembarking. The Convention limits the liability of the
carrier for each passenger to the sum of 125,000 francs,
unless the carrier and passenger by special contract agree
to a higher limit of liability, or unless it can be established
that the carrier has been guilty of 'willful misconduct.' The
Convention contains a two-year time limitation for bringing
suit, and also absolves the carrier from liability upon a
showing of due care on its part." 8A Am. Jur. 2d Aviation
149, at 160~61 (1997).
warship. Int'llaw. A ship commissioned by a nation's
military, operating with a military command and crew
and displaying the nation's flag or other external marks
indicating its country oforigin. _ Under international
maritime laws, warships are not subject to many of
the safety and environmental regulations that apply to
shipping vessels and passenger ships.
warth. See WARDPENNY.
warwit. See WARDWIT.
war zone. Int'llaw. A designated area, on land or at sea,
within which the rights of neutral countries are not
respected by belligerent countries. [Cases: War and
National Emergency
wash, n. 1. A situation in which two effects offset each
other. For example, if an event produces gross
income and also a deduction in the same amount so
that taxable income is unchanged, the event creates a
wash. 2. The shallow part ofa river or the arm of a sea;
the sand, rocks, and gravel washed down by a mountain
stream and deposited on levelland near the mouth of
a canyon.
wash sale. See SALE.
wash transaction. See wash sale under SALE.
waste, n. (ISc) 1. Permanent harm to real property com
mitted by a tenant (for life or for years) to the prejudice
ofthe heir, the reversioner, or the remainderman. -In
the law of mortgages, any of the follOWing acts by the
mortgagor may constitute waste: (1) physical damage,
whether intentional or negligent, (2) failure to maintain
and repair, except for repair of casualty damage or
damage caused by third-party acts, (3) failure to pay
property taxes or governmental assessments secured
by a lien having priority over the mortgage, so that the
payments become delinquent, (4) the material failure to
comply with mortgage covenants concerning physical
care, maintenance, construction, demolition, or
casualty insurance, or (5) keeping the rents to which the
mortgagee has the right ofpossession. -Also termed
devastation; vastum. [Cases: Waste 1.J
''The old action of waste was a mixed action, being founded
in part on the statute of Gloucester (A.D. 1278), which
provided that 'he which shall be attainted of waste shall
lose the thing wasted, and moreover shall recompense
thrice as much |
that 'he which shall be attainted of waste shall
lose the thing wasted, and moreover shall recompense
thrice as much as the waste shall be taxed at.' The action
was to recover the land in which waste had been done
made for personal injuries arising out of international i and the treble damages. The statute of Gloucester was
waste book 1728
imported into this country, but many variant statutes now
regulate the subject." Edwin E. Bryant, The Law ofPleading
Under the Codes ofCivil Procedure 13 (2d ed. 1899).
active waste. See commissive waste.
affirmative waste. See commissive waste.
ameliorating waste (d-meel-Yd-ray-ting). (1927) A
lessee's unauthorized change to the physical charac
ter of a lessor's property -technically constituting
waste, but in fact resulting in improvement of the
property . Generally, equity will not enjoin such
waste. Also termed ameliorative waste.
commissive waste (k<l-mis-iv). (1868) Waste caused
by the affirmative acts of the tenant. -Also termed
active waste; affirmative waste; voluntary waste.
[Cases: Landlord and Tenant (::::)55(2).J
double waste. Hist. The destruction occurring when
a tenant having a duty to repair allows a house to
deteriorate, and then unlawfully cuts down timber
to repair it.
economic waste. See ECONOMIC WASTE.
equitable waste. (1842) Waste that abuses a privilege of
nonimpeachability at common law, for which equity
will restrain the commission of willful, destructive,
malicious, or extravagant waste; esp., waste caused by
a life tenant who, although ordinarily not responsible
for permissive waste, flagrantly damages or destroys
the property. [Cases: Waste (::::)4.]
"A life tenant with the benefit of an express exemption from
liability for voluntary waste will nevertheless be restrained
in equity from committing acts of flagrant destruction to
the premises; hence the (seemingly paradoxical) term,
'equitable waste'. A life tenant who has engaged in, or
who threatens to engage in, reprehensible acts of voluntary
waste will not be permitted unconscientiously to shield
behind his legal right to commit waste to the detriment of
those next entitled to enjoyment of the property, for this
would be to abuse the legal right." Peter Butt, Land Law
114-15 (2d ed. 1988).
permissive waste. (l7c) A tenant's failure to make
normal repairs to property so as to protect it from
substantial deterioration. [Cases: Waste C=>3.]
voluntary waste. (16c) Waste resulting from some
positive act of destruction. See commissive waste.
[Cases: Waste
"Voluntary waste. This involves some positive act of injury
to the property, diminishing its value for the person next
in succession; it is a deliberate and active change to the
property. Examples are altering the character of premises
by demolishing internal walls and fittings or opening and
working a mine on the land (but not working a mine already
opened, for the pre-existence of the mine shows an inten
tion on the part of the grantor that the profits from the
mine are to be enjoyed by the life tenant). A life tenant is
liable for voluntary waste, unless the instrument confer
ring the interest expressly exempts liability for voluntary
waste." Peter Butt, Land Law 114 (2d ed. 1988).
2. Refuse or superfluous material, esp. that remain
ing after a manufacturing or chemical process <toxic
waste>.
hazardous waste. (1974) Waste that because of its
quantity, concentration, or physical, chemical, or infectious characteristics may cause or signifi
cantly contribute to an increase in mortality or oth
erwise harm human health or the environment. 42
USCA 6903(5). Also termed hazardous substance.
[Cases: Environmental Law C=>427.J
toxic waste. (1964) Hazardous, poisonous substances,
such as dichlorodiphenyltrichloroethane (DDT) .
Most states regulate the handling and disposing of
toxic waste, and several federal statutes (such as the
Comprehensive Environmental Response Compensa
tion and Liability Act of 1980 (CERCLA), 42 USCA
9601-9657) regulate the use, transportation, and
disposal of toxic waste. [Cases: Environmental Law
C=>427.]
waste book. A merchant's book for making rough entries
of transactions before posting them into a journaL
Also termed blotter.
wasted vote. See VOTE (1).
wastewater. See WATER.
wasting asset. See ASSET.
wasting property. See PROPERTY.
wasting trust. See TRUST.
wastor, n. Hist. A type of thief, classified in a statute of
Edward III with marauding vagabonds and burglars
who entered premises by lifting door latches. 5 Edw.
3, ch. 14.
watch, n. Maritime law. 1. A division of a ship's crew
<port or starboard watch>. [Cases: Collision C=>77,
81,99.] 2. The division ofthe day into time periods of
service by officers and the crew <four-hour watch>.
watch, vb. Hist. To stand guard during the night.
watch and ward, n. Hist. A feudal duty that some tenants
had to keep guard through continuous vigilance . The
phrase denotes keeping guard by night (watch) and by
day (ward). -Also termed watching and warding.
water. 1. The transparent liquid that is a chemical
compound of hydrogen and oxygen (HP). 2. A body
of this liquid, as in a stream, river, lake, or ocean.
backwater. Water in a stream that, because of a dam
or obstruction, cannot flow forward and sometimes
flows back. [Cases: Waters and Water Courses
53,159-175.]
coast water. Tidewater navigable by an ocean vessel;
all water opening directly or indirectly into the
ocean and navigable by a vessel coming in from the
ocean. Also termed coastal water.
developed water. Water brought to the surface and
made available for use by the party claiming the water
rights.
diffused surface water. Water, such as rainfall runoff,
that collects and flows on the ground but does not
form a watercourse . Surface water is usu. subject to
different regulations from water flowing in a water
course. -Often shortened to surface water. See
COMMON-ENEMY DOCTRINE; WATERCOURSE. [Cases:
Waters and Water Courses ~115.]
1729 watered stock
excess water. Water that is flowing in a stream in
addition to what may be termed adjudicated waters;
any water not needed for the reasonable beneficial
uses of those having priority rights. Also termed
surplus water.
floodwater. Water that escapes from a watercourse in
large volumes and flows over adjoining property in
no regular channel.
foreign water. Water belonging to another nation or
subject to another jurisdiction.
groundwater. Water found in layers ofpermeable rock
or soil.
inland waters. See INTERNAL WATERS.
internal waters. See INTERNAL WATERS.
navigable water. See NAVIGABLE WATER.
navigable water ofthe United States. See NAVIGABLE
WATER.
percolating water. Water that oozes or seeps through
the soil without a defined channel (such as rainwa
ter or other water that has lost its status as part of
a stream) . Percolating water usu. constitutes part
of the land on which it is found. [Cases: Waters and
Water Courses C:::> 101.]
posted water. (usu. pl.) A body of water that is reserved
for the exclusive use of the person who owns the land
surrounding it. The owner secures the exclusive use
by posting a notice prohibiting others from using the
water.
private water. Nonnavigable water owned and con
trolled by one or more individuals and not subject to
public use . Ifa body of water is small and oflittle
or no practical value for general public use, it is con
sidered private.
public water. Water adapted for purposes ofnavigation
or public access.
subterranean water. Water that lies or flows beneath
the earth's surface and that is not artificially confined.
[Cases: Waters and Water Courses C:::>99.]
surface water. 1. Water lying on the surface of the
earth but not forming part of a watercourse or lake.
Surface water most commonly derives from rain,
springs, or melting snow. [Cases: Waters and Water
Courses C=~115.] 2. See diffused surface water.
surplus water. 1. Water running off irrigated ground;
water not consumed by the irrigation process. 2. See
excess water.
territorial waters. The waters under a state's or nation's
jurisdiction, including both inland waters and sur
rounding sea (traditionally within three miles of the
coastline). Also termed territorial sea; marine belt;
maritime belt.
tidewater. See TIDEWATER.
wastewater. 1. Water that escapes from the canals,
ditches, or other receptacles of the lawful claimant;
water that is not used by the appropriator and is permitted to run off the appropriator's property. 2.
Water that is left over, esp. after a chemical or manu
facturing process.
water bayley (bay-lee). Rist. An officer (mentioned in
the colony laws of New Plymouth in A.D. 1671) who
primarily collects dues for fish taken out of the colony's
waters.
waterboarding. A form of torture in which water is
poured over the face of a supine, immobilized victim
whose head is pulled back so that the victim cannot
avoid inhaling water, and thus experiences the sensa
tion of drowning . In some variations, fabric or plastic
may be draped over the victim's face or the victim may
be gagged before the water is poured. See TORTURE.
watercourse. (16c) A body of water, usu. of natural
origin, flowing in a reasonably definite channel with
bed and banks . The term includes not iust rivers and
creeks, but also springs, lakes, and ma;shes in which
such flowing streams originate or through which they
flow. -Also termed waterway. [Cases: Waters and
Water Courses C:::>38.]
"Once water joins a watercourse it becomes subject to state
control; in appropriation states it becomes available for
appropriation to private uses according to state law ....
[Aj watercourse could be defined to include not only rivers
and lakes, but every tiny brook flowing into them, all the
gullies through which water flows to the brooks, the
snowpack and rainfall that feed them, and the evaporat
ing or transpiring water in the process of forming clouds.
But we need not require scientists to trace water to such
remote sources because it would be beyond the ability of
governments to regulate these sources. Legal definitions
are intended to define a point beyond which a state does
not regulate water use. Usually that point is when water is
not in a 'natural stream'." David H. Getches, Water Law in
a Nutshelll06~107 (3d ed. 1997).
ancient watercourse. A watercourse in a channel that
has existed from time immemorial.
artificial watercourse. A man-made watercourse, usu.
to be used only temporarily . If the watercourse is
of a permanent character and has been maintained
for a sufficient length of time, it may be considered
a natural watercourse to which riparian rights can
attach. [Cases: Waters and Water Courses e:-~168.]
"An artificial waterway or stream may. under some cir
cumstances, have the characteristics and incidents of a
natural watercourse. In determining the question, three
things seem generally to be taken into conSideration by
the courts: (1) whether the way or stream is temporary
or permanent: (2) the circumstances under which it was
created; and (3) the mode in which it has been used and
enjoyed." 78 Am. Jur. 2d Waters 196, at 644 (1975).
natural watercourse. A watercourse with its origin in
the forces of nature. A natural watercourse does
not include surface water, which often flows inter
mittently and in an indefinite channel. In addition,
a natural stream is distingUished from an artificial
ditch or canal, which is typically not the subject of
riparian rights. See RIPARIAN RIGHTS; WATER. [Cases:
Waters and Water Courses ~)38.]
water district. See DISTRICT.
watered stock. See STOCK.
waterfront
waterfront, n. Land or land with buildings fronting a
body of water.
watergage, n. 1. A seawalL 2. An instrument used to
measure the height ofwater.
watergavel, n. Hist. A fee paid for a benefit (such as
fishing) obtained from a body of water.
watermark. 1. A mark indicating the highest or lowest
pOint to which water rises or falls.
high-water mark. 1. 1he shoreline ofa sea reached by
the water at high tide . The high-water mark is usu.
computed as a mean or average high tide and not as
the extreme height of the water. 2. In a freshwater
lake created by a dam in an unnaVigable stream, the
highest point on the shore to which the dam can raise
the water in ordinary circumstances. 3. In a river not
subject to tides, the line that the river impresses on the
soil by covering it long enough to deprive it of agricul
tural value. -Also termed high-water line.
low-water mark. 1. The shoreline ofa sea marking the
edge of the water at the lowest point of the ordinary
ebb tide. 2. In a river, the point to which the water
recedes at its lowest stage.
2. The transparent design or symbol seen when paper is
held up to the light, usu. to indicate the genuineness of
the document or the document's manufacturer.
water ordeal. See ordeal by water under ORDEAL.
waterpower. 1. The force obtained by converting water
into energy. 2. The rip |
al by water under ORDEAL.
waterpower. 1. The force obtained by converting water
into energy. 2. The riparian owner's right consisting
ofthe fall in the stream as it passes over or through
the riparian owner's land; the difference of the level
between the surface where the stream first touches one's
land and the surface where the water leaves the land.
[Cases: Waters and Water Courses
water right. (often pl.) (18c) The right to use water from
a natural stream or from an artificial canal for irri
gation, power, domestic use, and the like; RIPARIAN
RIGHT. Also termed aquatic right. [Cases: Navigable
Waters Waters and Water Courses C=>40-47,
141, 168.]
waterscape, rI. (1842) An aqueduct or passage for water.
waterway. See WATERCOURSE.
waveson (wayv-san), n. Hist. Goods that float on the sea
after a shipwreck. Cf. FLOTSAM; JETSAM; LAGAN (1).
wax scot (wak skot), n. Hist. A duty on wax candles used
in churches, usu. paid twice a year. Also termed
cerage (seer-ij); ceratium (si-ray-shee-"m).
way. (bef. 12c) 1. A passage or path. 2. A right to travel
over another's property. See RIGHT-OF-WAY. [Cases:
Easements (;=, 1.]
private way. (17c) 1. The right to pass over another's
land. [Cases: Easements C=> 1.] 2. A way provided by
local authorities primarily to accommodate particu
lar individuals (usu. at the individual's expense) but
also for the public's passage. [Cases: Private Roads 1730
way ofnecessity. See implied easement under EASE
MENT.
waybill. Maritime law. A document acknowledging the
receipt ofgoods by a carrier or by the shipper's agent
and the contract for the transportation ofthose goods.
Unlike a bill oflading, a waybill is not a document
of title and is nonnegotiable. Abbr. WE. Cf BILL OF
LADING. [Cases: ShippingG=106(1).J
air waybill. A waybill for goods shipped by air. Cf.
overseas bill oflading under BILL OF LADING. [Cases:
Carriers C=>51, 153.]
way-going crop. A grain crop, formerly sown by a tenant
during a tenancy (esp. in Pennsylvania), that did not
ripen until after expiration of the lease . In the absence
ofan express agreement to the contrary, the tenant was
entitled to the crop. [Cases: Landlord and Tenant C=>
139(2).]
way-leave, n. (lSc) 1. A right-of-way (usu. created by an
express grant) over or through land for the transporta
tion of minerals from a mine or quarry. 2. The royalty
paid for such a right.
waynagium (way-nay-jee-"m). See WAINAGE.
way of necessity. See implied easement under EASE
MENT.
ways-and-means committee. (1840) A legislative com
mittee that determines how money will be raised for
various governmental purposes. [Cases: United States
C=>23.]
WB. abbr. WAYBILL.
WC. abbr. WORKERS' COMPENSATION.
WCT. abbr. WIPO COPYRIGHT TREATY.
W.D. abbr. Western District, in reference to U.S. judicial
districts.
weak mark. See descriptive trademark under TRADE
MARK.
weak trademark. See descriptive trademark under
TRADEMARK.
wealreaf (weel-reef), n. Archaic. The robbery of a dead
person in a grave.
wealth. 1. A large quantity ofsomething. 2. The state of
haVing abundant financial resources; affluence.
wealth maximization. A situation resulting from a
change in the allocation of resources if the change
benefits the winner -I.e., the one who benefits from
the change more than it harms the loser . A situa
tion in which all possible wealth-maximizing changes
have occurred is described as Kaldor-Hicks efficient or
as beingpotentialiy Pareto superior. See PARETO OPTI
MALITY; PARETO SUPERIORITY.
weapon. (bef. 12c) An instrument used or deSigned to
be used to injure or kill someone. [Cases: Weapons C=>
4,8.]
concealed weapon. (1833) A weapon that is carried by a
person but that is not visible by ordinary observation.
[Cases: Weapons (..~10.]
1731
dangerous weapon. (17c) An object or device that,
because of the way it is used, is capable of causing
serious bodily injury. [Cases: Weapons
deadly weapon. (16c) Any firearm or other device,
instrument, material, or substance that, from the
manner in which it is used or is intended to be used, is
calculated or likely to produce death. -In some states,
the definition encompasses the likelihood of causing
either death or serious physical injury. Also termed
lethal weapon. Cf. DANGEROUS INSTRUMENTALITY.
[Cases: Assault and Battery
deadly weapon per se. (1872) A weapon that is deadly
in and of itself or would ordinarily result in death
by its use <a gun is a deadly weapon per se>. -Also
termed per se deadly weapon. [Cases: Assault and
Battery (;::::>56.]
lethal weapon. See deadly weapon.
nondeadly weapon. See LESS-LETHAL
nonlethal weapon. See LESS-LETHAL.
weapon ofmass destruction. (usu. pl.) A weapon that
is intended to kill human beings, without discrimi
nating between combatants and noncombatants,
on a massive scale. -Among the most frequently
cited examples are nuclear weapons and chemical
weapons. -Abbr. WMD.
wear, n. [fro Saxon were "a taking"] Hist. A dam made
ofstakes interlaced by twigs ofwillows that are placed
across a river to more easily accommodate the netting
offish. -Also termed weir.
wear and tear. (17c) Deterioration caused by ordinary
use; the depreciation ofproperty resulting from its rea
sonable use <the tenant is not liable for normal wear
and tear to the leased premises>. Also termed Jair
wear and tear; natural wear and tear. [Cases: Landlord
and Tenant <>=-55, 160.]
"'Fair wear' is the deterioration caused by the reasonable
use of the premises; 'fair tear' is the deterioration caused
by the ordinary operation of natural forces. A tenant's
repairing covenant commonly exempts the tenant from the
obligation to repair damage characterisable as 'fair wear
and tear' (sometimes called 'reasonable wear and tear').
In the absence of such an exempting provision, a covenant
to repair requires the repairing of damage characterisable
as fair wear and tear. Where a covenant to repair exempts
the tenant from liability for 'fair wear and tear'. he is not
responsible for deterioration or dilapidation caused by 'the
reasonable use of the house by the tenant and the ordinary
operation of natural forces.'" Peter Butt, Land Law 256 (2d
ed. 1988).
Webb-Pomerene Act. A federal law, originally enacted
in 1918, that provides a qualified exemption for an
export business against the prohibitions of the anti
trust laws. 15 USCA 61 et seq.
"The Webb-Pomerene Act was passed to aid and encourage
our manufacturers and producers to extend our foreign
trade. Congress believed that American firms needed
the power to form joint export associations in order to
compete with foreign cartels, but while Congress was
willing to create an exemption from the antitrust laws
to serve this narrow purpose, the exemption created by
the Webb-Pomerene Act was carefully hedged in to avoid
substantial injury to domestic interests. Organization Weingarten right
under the WebbPomerene Act does not give an export
association the right to agree with foreign competitors
to fix prices ... or establish exclusive markets ...." 54
Am. Jur. 2d Monopolies and Restraints of Trade 262, at
298 (1996).
website-user agreement. See POINT-AND-CLICK AGREE
MENT.
web-wrap agreement. See POINT-AND-CLICK AGREE
MENT.
wedding. See MARRIAGE CEREMONY.
wedge principle. (1951) The argument that relaxation
of a constitutionally imposed restraint under specific
circumstances may justify further relaxation in broader
circumstances. -This principle is most often raised
in the context of legalized human euthanasia. But it
has frequently been invoked in other contexts, such
as the right to protection from unreasonable search
and seizure. -Also termed slippery-sloped principle;
parade-oj-horrors objection.
"[Tlhere is the familiar argument from the 'wedge prin
ciple: which is used to deny the possibility of looking at
particular circumstances in applying moral rules." Glanville
Williams, The Sanctity of Life and the Criminal Law 315
(1957).
wedlock. The state ofbeing married; matrimony.
week. 1. A period of seven consecutive days beginning
on either Sunday or Monday. 2. Any consecutive seven
day period. [Cases: Time <>6.]
weekend sentence. See intermittent sentence under
SENTENCE.
week-work. Hist. In feudal times, the obligation of a
tenant to work two to four days in every week for his
lord during the greater part ofthe year, and four or five
during the summer months. See VILLEIN SERVICE.
wehading. See TRIAL BY COMBAT.
weighage (way-ij). A duty or other payment reqUired in
return for weighing merchandise.
weight. A measure ofheaviness; a measure ofthe quantity
ofmatter. [Cases: Weights and Measures (;::::>3.J
gross weight. The total weight of a thing, including its
contents and any packaging.
net weight. The total weight ofa thing, after deducting
its container, its wrapping, and any other extraneous
matter.- Also termed neat weight.
weighted vote. See VOTE (1).
weight ofthe evidence. (17c) The persuasiveness ofsome
evidence in comparison with other evidence <because
the verdict is against the great weight of the evidence, a
new trial should be granted>. See BURDEN OF PERSUA
SION. Cf. MANIFEST WEIGHT OF THE EVIDENCE; PRE
PONDERANCE OF THE EVIDENCE. [Cases: Criminal Law
(;:::;:>549; Evidence
Weingarten right. Labor law. A union member's right
to have a union representative present during an
employment meeting that the member reasonably
believes will result in disciplinary action. NLRB V. /.
Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959 (1975).
1732 weir
In July 2000, the NLRB extended Weingarten rights to
nonunion employees. [Cases: Labor and Employment
C=> 1469(1).]
weir. See WEAR.
wekhing. See WELSHING.
welfare. (14c) 1. Well-being in any respect; prosperity.
general welfare. (17c) The public's health, peace, morals,
and safety.
public welfare. (16c) A society's well-being in matters
of health, safety, order, morality, economics, and
politics.
2. A system of social insurance providing assistance
to those who are financially in need, as by providing
food stamps and family allowances. -Also termed
(historically) poor relief [Cases: Agriculture
Social Security and Public Welfare C=>4.]
corporate welfare. Governmental financial assis
tance given to a large company, usu. in the form of
a subsidy.
Welfare Clause. See GENERAL WELFARE CLAUSE.
welfare plan. See EMPLOYEE BENEFIT PLAN.
welfare state. (1894) A nation in which the government
undertakes various social insurance programs, such
as unemployment compensation, old-age pensions,
family allowances, food stamps, and aid to the blind
or deaf. -Also termed welfare-regulatory state.
well, adj. Marine insurance. (Of a vessel) in good condi
tion; safe and sound <the vessel was warranted well
on January 1>.
well, adv. (be 12c) In a legally sufficient manner; unob
jectionable <well-pleaded complaint>.
well, n. A hole or shaft sunk into the earth to obtain a
fluid, such as water, oil, or natural gas.
limited-capacity well. An oil or gas well that is limited
to producing only a portion ofits monthly allowable
because ofmarket demand.
stripper well. An oil or gas well that produces only
small quantities . In some states, such as Kansas
and Illinois, stripper wells are common.
well-completion clause. Oil & gas. A provision in an oil
and-gas lease specifying that a lessee who starts drilling
before the lease terminates has the right to complete the
well and to maintain the lease if the drilling achieves
production. See OPERATIONS CLAUSE. [Cases: Mines
and Minerals C=>78.1(9).)
well-knowing, adj. (17c) Intentional <a well-knowing
act or omission>. This term was formerly used in a
pleading to allege scienter. See SCIENTER.
well-pleaded complaint. See COMPLAINT.
welshing. (1857) 1. The act or an instance ofevading
an obligation, esp. a gambling debt. 2. The common
law act of larceny in which one receives a deposit to
be paid back with additional |
ambling debt. 2. The common
law act of larceny in which one receives a deposit to
be paid back with additional money depending on the
outcome of an event (such as a horse race) but at the
time ofthe deposit the depositee intends to cheat and defraud the depositor by absconding with the money.
Although this term is sometimes thought to be a slur
against those hailing from Wales, etymologists have
not been able to establish this connection. Authorita
tive dictionaries record the origin ofthe term as being
unknown. -Also termed welching. welsh, vb.
welsher, n.
Welsh mortgage. See MORTGAGE.
wend, n. Hist. A large section ofland; a perambulation;
a circuit.
wer. See BLOOD MONEY (1).
wergild (wOlr-gild). Rist. The fixed value of a person's life,
being the amount that a homicide's kindred must pay
to the kindred of the slain person so as to avoid a blood
feud. -Also spelled wergeld; weregild; wehrgeld. See
EFFUSIO SANGUINIS; LEODES.
West Australian plan. See instant-runoff voting under
VOTING.
Westlaw. A West Group database for computer
assisted legal research, proViding online access to
legal resources, induding federal and state caselaw,
statutes, regulations, legal treatises, legal periodicals,
and general and business news. Abbr. WL.
Westminster Confession of Faith (west-min-st<lr). Hist.
A document containing a statement of the religious
doctrines of the Presbyterian Church, originating at a
conference of British and continental Protestant divines
at Westminster in 1643. It was adopted by the General
Assembly ofthe Kirk ofScotland and the Scottish Par
liament' so becoming the basis of the Scottish Presby
terian Church. -Sometimes shortened to Westminster
ConfeSSion.
Westminster the First, Statute of. Hist. An English
statute divided into 51 chapters (later correlating to
separate acts of Parliament), including provisions (1)
protecting the property ofthe church from the violence
and spoliation ofthe Crown and nobles; (2) providing
for the freedom ofpopular elections; (3) enforcing the
rules contained in Magna Carta against excessive fines;
(4) enumerating and correcting the abuses of tenures
(esp. concerning marriages of wards); (5) regulating
the levying of tolls; (6) correcting and restraining the
powers of the royal escheator and other officers; (7)
amending the criminal law (esp. by classifying rape as
a most grievous, though not capital, offense); and (8)
making criminal and civil procedures more expedi
tious and less costly. 3 Edw. (1275).
West Point. See UNITED STATES MILITARY ACADEMY.
West-Saxon law. Hist. A system of rules introduced
by the West Saxons and one of the three principal
legal systems prevailing in England in the
ning of the 11th century. -It was observed primarily
in southern English counties from Kent to Devon
shire. -Also termed West-Saxon lage. See MERCEN
LAGE; DANELAW.
1733
Wetterling Act. See JACOB WETTERLlNG CRIMES AGAINST
CHILDREN AND SEXUALLY VIOLENT OFFENDER REGIS
TRATION ACT.
wharf. A structure on the shores ofnavigable waters, to
which a vessel can be brought for loading or unloading.
[Cases: Wharves ~4.]
private wharf. One that can be used only by its owner
or lessee. [Cases: Wharves
public wharf. One that can be used by the public.
[Cases: Wharves ~4.]
wharfage (worf-ij), n. Hist. 1. The fee paid for landing,
loading, or unloading goods on a wharf. [Cases:
Wharves C=> 15.] 2. The accommodation for loading
or unloading goods on a wharf.
wharfinger (wor-fin-j<lr), n. Hist. The owner or occupier
ofa wharf; one who keeps a wharf to receive merchan
dise for forwarding or delivery to a consignee. [Cases:
Wharves C=>20(1).]
wharfing out, right of. See RIGHT OF WHARFING OUT.
Wharton's rule ([h]wor-t<ln). (1940) Criminal law. The
doctrine that an agreement by two or more persons to
commit a particular crime cannot be prosecuted as a
conspiracy ifthe crime could not be committed except
by the actual number ofparticipants involved . But if
an additional person participates so as to enlarge the
scope of the agreement, all the actors may be charged
with conspiracy. The doctrine takes its name from
the influential criminal-law author Francis Wharton
(1820-1889). -Also termed Wharton rule; concert-of
action rule. [Cases: Conspiracy C=>28(1).j
"Wharton's Rule applies only to offenses that require con
certed criminal activity, a plurality of criminal agents. In
such cases, a closer relationship exists between the con
spiracy and the substantive offense because both require
collective criminal activity. The substantive offense there
fore presents some of the same threats that the law of
conspiracy normally is thought to guard against, and it
cannot automatically be assumed that the Legislature
intended the conspiracy and the substantive offense to
remain as discrete crimes upon consummation of the
latter. Thus, absent legislative intent to the contrary, the
Rule supports a presumption that the two merge when the
substantive offense is proved.... More important, as the
Rule is essentially an aid to the determination of legislative
intent, it must defer to a discernible legislative judgment."
Iannelli v. United States, 420 U.S. 770, 785-86, 95 5.0.
1284,1293-94 (1975).
WHD. abbr. WAGE AND HOUR DIVISION.
wheel. Hist. 1. An instrument oftorture used in medieval
Europe, consisting of a wheel or cross on which a
criminal was bound with arms and legs extended, while
the criminal's bones were broken one by one with an
iron bar, usu. until death. 2. 1be torture itself.
wheelage ([hlweel-ij), n. Hist. A duty or toll for a vehicle
to pass over certain property.
wheel conspiracy. See CONSPIRACY.
when-issued security. See SECURITY.
whereabouts, n. (17c) The general locale where a person
or thing is <her whereabouts are unknown> <the
Joneses' present whereabouts is a closely guarded whereupon
secret>. As the examples illustrate, this noun, though
plural in form, may be construed with either a plural or
a Singular verb. whereabouts, adv. & can).
whereas, con). (l4c) 1. While by contrast; although
<McWilliams was stopped at 10:08 p.m. wearing a
green hat, whereas the assailant had been identified
at 10:04 p.m. wearing a black hat>. 2. Given the fact
that; since <Whereas, the parties have found that their
1994 agreement did not adequately address inciden
tal expenses ... ; and Whereas, the parties have now
decided in an equitable sharing of those expenses ...
; Now, Therefore, the parties agree to amend the 1994
agreement as follows ... >. In sense 2, whereas is
used to introduce contractual recitals and the like, but
modern drafters increaSingly prefer a simple heading,
such as "Recitals" or "Preamble," and in that way
avoid the legalistic whereases. -whereas (recital or
preamble), n.
whereas clause. 1. See PREAMBLE (1).2. See RECITAL (2).
whereat, con). (14c) 1. At or toward which <the pOint
whereat he was aiming>. 2. As a result of which; where
upon <Pettrucione called Bickley a scurrilous name,
whereat a fistfight broke out>.
whereby, con). (13c) By which; through which; in accor
dance with which <the treaty whereby the warring
nations finally achieved peace>.
wherefore, premises considered. (1867) For all these
reasons; for the reason or reasons mentioned above .
The phrase is often used to begin the final paragraph of
a motion, judgment, contract, or agreement.
wherefrom, con). (14c) From which <the students sent
two faxes to the president's office, wherefrom no reply
ever came>.
wherein, con). (14c) 1. In which; where <the jurisdic
tion wherein Lynn practices>. 2. During which <they
listened intently at the concert, wherein both of them
became convinced that the composer's "new" work was
a fraud>. 3. How; in what respect <Fallon demanded to
know wherein she had breached any duty>. wherein,
adv.
whereof, can). (13c) 1. Of what <Judge Wald knows
whereof she speaks>. 2. Of which <citations whereof
even the most responsible are far afield from the true
issue>. 3. Of whom <judges whereof only the most
glowing words might be said>.
whereon, con). (l3c) On which <the foundation whereon
counsel bases this argument>. -Also termed where
upon.
whereto, con). (14c) To what place or time <at first,
Campbell did not know whereto he was being taken>.
Also termed whereunto. -whereto, adv.
whereupon, con). (14c) 1. WHEREON <the precedent
whereupon the defense bases its argument>. 2. Soon
after and as a result of which; and then <a not-gUilty
verdict was announced, whereupon a riot erupted>.
1734 wherewith
wherewith, conj. (14c) By means ofwhich <the plaintiff
lacked a form ofaction wherewith to state a compens
able claim>.
whim. A passing fancy; an impulse <the jury was
instructed to render a verdict based solely on the
evidence, not on a whim>.
whipping, n. A method of corporal punishment formerly
used in England and a few American states, consisting
of inflicting long welts on the skin, esp. with a whip.
whipsaw strike. See STRIKE.
whisper stock. See STOCK.
whistleblower, n. (1970) An employee who reports
employer wrongdoing to a governmental or law
enforcement agency . Federal and state laws protect
whistleblowers from employer retaliation. [Cases:
Labor and Employment C:=:o775; Officers and Public
Employees C:=:o66. -whistleblowing, n.
whistleblower act. (1984) A federal or state law protect
ing employees from retaliation for properly disclosing
employer wrongdoing such as violating a law or regu
lation, mismanaging public funds, abusing authority,
or endangering public health or safety . Federal laws
containing whistleblower provisions include the Whis
tleblower Protection Act (5 USCA 1211), the Occupa
tional Safety and Health Act (29 USCA 660), CERCLA
(42 USCA 9610), and the Air Pollution and Control
Act (42 USCA 7622). [Cases: Labor and Employment
C:=:o775; Officers and Public Employees C:=:o69.7.]
Whiteacre. (17c) A fictitious tract ofland used in legal
discourse (esp. law-school hypotheticals) to discuss
real-property issues. See BLACKACRE.
white bonnet. Scots law. A fictitious bidder at an auction;
a shill.
white book. 1. Hist. (cap.) ALBUS LIBER. 2. A government
report bound in white, common esp. in European and
papal affairs.
whitecapping. (1900) Criminal law. The criminal act of
threatening a person -usu. a member of a minority
group -with violence in an effort to compel the person
either to move away or to stop engaging in a certain
business or occupation . Whitecapping statutes were
originally enacted to curtail the activities of the Ku
Klux Klan. [Cases: Extortion and Threats C:=:o25.1.]
white-collar crime. (1940) A nonviolent crime usu.
involving cheating or dishonesty in commercial
matters. Examples include fraud, embezzlement,
bribery, and insider trading.
whitehorse case. (1971) Slang. A reported case with facts
virtually identical to those of the instant case, so that
the disposition of the reported case should determine
the outcome of the instant case. -Also termed horse
case; goose case; gray mule case; red-cow case. Cf. ON
ALL FOURS.
white knight. A person or corporation that rescues the
target of an unfriendly corporate takeover, esp. by
acquiring a controlling interest in the target corpora
tion or by making a competing tender offer. -Also termedfriendly suitor. See TAKEOVER. Cf. CORPORATE
RAIDER.
Whiteley rule. See FELLOW-OFFICER RULE.
White model. Labor law. A method for determining
whether a union member's state-law claim against
the employer is preempted by federal law, by focusing
on whether state law permits the claim to be waived
by a private contract . In Lingle v. Norge Division of
Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877 (1988), the
Supreme Court held that a union member's state-law
retaliatory-discharge claim was not preempted by the
Labor-Management Relations Act because the claim
could be resolved without interpreting the collective
bargaining agreement. There are at least two models
for applying the Lingle test: the White model, which
focuses on whether the claim is negotiable or non
negotiable (that is, whether state law allows the claim
to be waived by a private contract) and the Marcus
model, which focuses on the independence ofthe claim
in relation to the collective |
be waived by a private contract) and the Marcus
model, which focuses on the independence ofthe claim
in relation to the collective-bargaining agreement.
Under the White model, all negotiable claims (those
waivable by private contract) are necessarily preempted
because their resolution will require an interpretation
of the collective-bargaining agreement. A nonnego
tiable claims (one that state law does not permit to be
waived by private contract) will be preempted only if
its resolution requires an interpretation of the collec
tive-bargaining agreement. The White model is named
for the author of the law-review article in which it was
proposed. Rebecca Homer White, Section 301's Pre
emption ofState Law Claims: A Modelfor Analysis, 41
Ala. L. Rev. 377 (1990). See LINGLE TEST. Cf. MARCUS
MODEL.
white rent. Hist. A feudal rent paid in silver, rather than
in work, grain, or money baser than silver. Cf. BLACK
RENT.
white slavery. The practice offorcing a female (or, rarely,
a male) to engage in commercial prostitution . Traf
ficking in persons for prostitution is prohibited by the
Mann Act (18 USCA 2421-2424). [Cases: Prostitu
tion C:=:o 15.]
White Slave Traffic Act. See MANN ACT.
Whitsunday. See quarter day under DAY.
whole blood. See full blood under BLOOD.
whole law. The law applied by a forum court in a mul
tistate or multinational case after referring to its own
choice-of-Iaw rules. [Cases: Action C:=:o 17.]
whole life insurance. See LIFE INSURANCE.
wholesale, n. The sale ofgoods or commodities usu. to a
retailer for resale, and not to the ultimate consumer. Cf.
RETAIL. -wholesale, vb. -wholesale, adj.
wholesale arrest. See dragnet arrest under ARREST.
wholesale dealer. One who sells goods in gross to retail
dealers rather than selling in smaller quantities directly
to consumers.
wholesale price. See PRICE.
1735 will
wholesale price index. See PRODUCER PRICE INDEX.
wholesaler. One who buys large quantities ofgoods and
resells them in smaller quantities to retailers or other
merchants, who in turn sell to the ultimate consumer.
whole-statute rule. The principle ofstatutory construc
tion that a statute should be considered in its entirety,
and that the words used within it should be given their
ordinary meanings unless there is a clear indication to
the contrary. [Cases: Statutes~' 188,205.]
wholly, adv. Not partially; fully; completely.
wholly and permanently disabled, adj. Insurance.
(Of an insured) completely and continuously unable
to perform work for compensation or profit. [Cases:
Insurance C:::>2035, 2553.]
wholly dependent, adj. Workers' compensation. (Of a
person) deriving full support from a worker's wages.
[Cases: Workers' Compensation C:::>412-486.]
wholly destroyed, adj. Insurance. (Of a building) so
damaged that it is no longer capable ofbeing classified
as a building, although some parts may remain intact.
[Cases: Insurance C:::>2171.]
wholly disabled, adj. Insurance. (Of a person) unable to
perform the substantial and material acts necessary to
carryon a business or occupation in the customary and
usual manner. [Cases: Insurance (;=>2561.]
whorehouse. See BROTHEL.
widow, n. A woman whose husband has died and who
has not remarried. [Cases: Death Cr'=>31(6); Descent and
Distribution C:::>52(1); Dower and Curtesy C:::>1-118;
Executors and Administrators C:::> 180.]
widower, n. A man whose wife has died and who has
not remarried.
widower's allowance. See spousal allowance under
ALLOWANCE (1).
widow's allowance. See spousal allowance under ALl.OW
ANCE (1).
widow's election. See RIGHT OF ELECTION.
wifa (wI-f~), n. [Old English] Hist. A mark or sign; esp., a
landmark showing exclusive occupation or to prohibit
an entry.
wife. A married woman; a woman who has a lawful
spouse living. [Cases: Bigamy (;= 1.]
common-law wife. 1. The wife in a common-law
marriage; a woman who contracts an informal
marriage with a spouse and then holds herself out
to the community as being married to that spouse.
See common-law marriage under MARRIAGE (1). 2.
Archaic. Loosely, a concubine. [Cases: Marriage C:::>
22.]
plural wife. One of two or more women married
Simultaneously to the same spouse in a polygamous
marriage. [Cases: Marriage Cr'=>22.]
wife beating. See spousal abuse under ABUSE.
wife's equity. See EQUITY TO A SETTLEMENT. wife's settlement. See EQUITY TO A SETTl.EMENT.
wild animal. See ANIMAl..
wildcat strike. See STRIKE.
wild creature. See wild animal under CREATURE.
wild deed. See DEED.
Wild's Case, Rule in. See RUl.E IN WILD'S CASE.
wilful. See WILLFUL.
will, n. (bef. 12c) 1. Wish; desire; choice <employment at
will>. 2. The legal expression of an individual's wishes
about the disposition ofhis or her property after death;
esp., a document by which a person directs his or her
estate to be distributed upon death <there was no
mention of his estranged brother in the will>. -Also
termed testament; will and testament; (archaically)
testamentary instrument. [Cases: Wills C:::>1-202.]
will, vb.
"The word 'will' has two distinct meanings. The first, and
strict, meaning is metaphYSical, and denotes the sum of
what the testator wishes, or 'wills,' to happen on his death.
The second, and more common, meaning is physical, and
denotes the document or documents in which that inten
tion is expressed." Anthony R. Mellows, The LawofSucces
sian 6 (3d ed. 1977).
ambulatory will. (1909) A will that can be altered
during the testator's lifetime. [Cases: Wills C:::>78.]
antenuptial will. See prenuptial will.
attested will. A will that has been signed by a witness.
[Cases: WillsC:::>113.]
bogus will. An unauthentic will, esp. one involving
fraud or unauthorized changes.
closed will. See mystic will.
conditional will. A will that depends on the occur
rence ofan uncertain event for the will to take effect.
_ Most jurisdictions hold a conditional will valid even
though the testator's death does not result from or on
the occasion of the condition mentioned in the will.
The courts generally hold that the condition is the
inducement for making the will rather than a condi
tion precedent to its operation. See Eaton v. Brown,
193 U.S. 411, 24 S.Ct. 487 (1904); In re Will ofCohen,
491 A.2d 1292 (N.J. Super. Ct. App. Div. 1985). Cf.
contingent will. [Cases: Wills {~>80.1
conjoint will. See joint will.
contingent will. A will that takes effect only ifa speci
fied event occurs. Cf. conditional will. [Cases: Wills
C:::>80.]
counter will. See mutual will.
double will. See mutual will.
duplicate will. (1855) A will executed in duplicate origi
nals by a testator who retains one copy and gives the
second copy to another person. -The rules applica
ble to wills apply to both wills, and upon application
for probate, both copies must be tendered into the
registry of the probate court. [Cases: Wills
holographic will (hol-~-graf-ik). (1850) A will that is
handwritten by the testator. -Such a will is typically
will 1736
unattested. Holographic wills are rooted in the civil
law tradition, having originated in Roman law and
having been authorized under the Napoleonic Code.
French and Spanish settlers introduced holographic
wills in America, primarily in the South and West.
Today they are recognized in about half the states.
Also termed olographic will. See HOLOGRAPH. [Cases:
Wills l30-l35.]
inofficious will. See inofficious testament under TES
TAMENT.
international will. A will that is executed according
to formalities provided in an international treaty or
convention, and that will be valid although it may be
written in a foreign language by a testator domiciled
in another country. [Cases: Wills C=>238-246.]
invalid will. (18c) A will that fails to make an effective
disposition of property.
joint and mutual will. (1841) A single will executed
by two or more people -to dispose ofproperty they
own separately, in common, or jointly -requiring
the surviving testator to dispose of the property in
accordance with the terms of the will. A joint and
mutual will is drafted to be contractually binding on
the survivor. The word "joint" indicates the form of
the will. The word "mutual" describes the substantive
provisions. -Also termed joint and reciprocal will.
[Cases: Wills C=>56-68, 100.]
joint and reciprocal will. See joint and mutual will.
joint will. (18c) A single will executed by two or more
testators, usu. disposing of their common property
by transferring their separate titles to one devisee.
Also termed conjoint will. [Cases: Wills C=>56-68,
100.]
last will. (16c) The most recent will of a deceased; the
instrument ultimately fixing the disposition of real
and personal property at the testator's death. -Also
termed last will and testament.
"A will is the disposition of real and personal property to
take effect after the death of the testator. When the will
operates upon personal property, it is sometimes called
a testament, and when upon real estate, a devise; but the
more general and the more popular denomination of the
instrument, embraCing equally real and personal estate,
is that of last will and testament." 4 James Kent, Commen
taries on American Law *501 (George Comstock ed., 11 th
ed.1866).
last will and testament. See last will.
living will. See LIVING WILL.
lost will. An executed will that cannot be found at the
testator's death . Its contents can be proved by parol
evidence in many jurisdictions. But the overwhelm
ing majority of American jurisdictions follow the
common-law presumption of revocation if a will is
proved to have been in the possession of the testator
and has since been lost. [Cases: Wills C=>234, 293(4),
302(8).]
mancipatory will (man-sip-i-tor-ee). Roman law.
In early and classical law, a formal will sealed by seven witnesses and submitted to the praetor. See
TESTAMENTUM.
mariner's will. See soldier's will.
mutual will. (usu. pl.) (1837) One oftwo separate wills
in which two persons, usu. a husband and wife, estab
lish identical or similar testamentary provisions dis
posing of their estates in favor of each other. It is
also possible (though rare) for the testators to execute
a single mutual will, as opposed to separate ones. And
it is possible (though, again, rare) for more than two
parties to execute mutual wills. -Also termed recip
rocal will; counter will; double will; mutual testament.
[Cases: Wills C=>56-68.]
mystic will. Civil law. A secret will signed by the testator,
sealed and delivered to a notary in the presence of
three to seven witnesses, accompanied by the testa
tor's declaration that it is a valid will. The notary is
then required to indorse on the envelope containing
the will a statement of all the facts surrounding the
transaction, and this is Signed by the notary and all
the witnesses. -Also termed mystic testament; secret
will; secret testament; closed will; closed testament;
sealed will; sealed testament. [Cases: Wills C=> 124.]
nonintervention will. A will that authorizes an inde
pendent executor. See independent executor under
EXECUTOR.
notarial will. A will executed by a testator in the
presence of two witnesses and a notary public.
nuncupative will (n;)ng-kYJ-pay-tiv or n<mg-kyoo
pJ-tiv). (18c) An oral will made in contemplation of
imminent death, esp. from a recent injury . Nuncu
pative wills are invalid in most states. Even in states
allowing them, the amount that may be conveyed is
usu. limited by statute. Traditionally, only personal
property may be conveyed. -Also termed oral will;
unwritten will; verbal will. [Cases: Wills 136
150.]
"Nuncupative (i.e., oral) wills are by statute in almost all
States required to be proved by two (sometimes three)
witnesses, who were present and heard the testamentary
words." John H. Wigmore, A Students' Textbook of the Law
ofEvidence 299 (1935).
nuncupative will by public act. Hist. Louisiana law. A
will dictated by the testator to a notary in the presence
ofa specified number ofwitnesses. The notary had
to read the will back to the testator. The testator and
the witnesses then signed the will. Ifthe testator was
physically unable to sign, another person could sign
in the testator's presence on the testator's behalf. |
ator was
physically unable to sign, another person could sign
in the testator's presence on the testator's behalf. The
number of required witnesses varied depending on
the circumstances. This type of will was abolished
in 1997. See La. Civ. Code art. 1574. -Also termed
nuncupative testament by public act.
olographic will. See holographic will.
oral will. (1853) A will made by the spoken declara
tion of the testator and usu. dependent on oral tes
timony for proof. See nuncupative will. [Cases: Wills
C=>l36-150.]
1737 Williams Act
parliamentary will. Slang. The legislation that governs
the distribution ofan intestate's property. -The term
arose because the legislature effectively makes an
intestate's will by passing statutes regulating descent
and distribution. The terms ofthe parliamentary will
are gathered from the statutes in effect when the intes
tate died.
postnuptial will (pohst-nap-shal). A will executed after
marriage.
pourover will (por-oh-v;)r). (1946) A will giving money
or property to an existing trust. Cf. pourover trust
under TR1.:ST.
prenuptial will (pree-n3p-sh<ll). (1914) A will executed
before marriage. -At common law, marriage auto
matically revoked a spouse's will, but modern statutes
usu. provide that marriage does not revoke a will
(although divorce does). But ifthis marriage was not
contemplated by the will and there is nothing other
wise on its face to indicate that the testator intention
ally left nothing to any future spouse, the pretermitted
spouse may be entitled to a special forced share of the
estate. Uniform Probate Code 2-508. Also termed
antenuptial will. [Cases: Wills (;::::::60.]
reciprocal will. See mutual will.
sealed will. See mystic will.
seaman's will. See soldier's will.
secret will. See mystic will.
self-proved will. (1963) A will proved by a self-proving
affidavit. See self-proving affidavit under AFFIDAVIT.
-This method of proof, recognized in a growing
number of states, eliminates the practical problems
of obtaining the live testimony ofwitnesses. [Cases:
Wills (;:::::: 113.]
soldier's will. A soldier's informal oral or written will
that is usu. valid despite its noncompliance with
normal statutory formalities, as long as the soldier
was in actual service at the time the will was made.
Also termed seaman's will; mariner's will; military tes
tament; soldier's and sailor's will.
undutiful will. Civil law. See unnatural will.
unnatural will. (1854) A will that distributes the tes
tator's estate to strangers rather than to the testator's
relatives, without apparent reason. Also termed (in
civil law) undutiful will. [Cases: Wills
unofficious will. See inofficious testament under TES
TAMENT.
unsolemn will. Civil law. A will in which an executor
is not named.
unwritten will. See nuncupative will.
verbal will. See nuncupative will.
will and testament. See WILL.
will contest. Wills & estates. The litigation of a will's
validity, usu. based on allegations that the testator
lacked capacity or was under undue influence. [Cases:
Wills (;::::::203-434.] willful, adj. (13c) Voluntary and intentional, but not
necessarily malicious. -Sometimes spelled Wilful. Cf.
WANTO:N. willfulness, n.
'The word 'Wilful' or 'Wilfully' when used in the defini
tion of a crime, it has been said time and again, means
only intentionally or purposely as distinguished from acci
dentally or negligently and does not require any actual
impropriety; while on the other hand it has been stated
with equal repetition and insistence that the requirement
added by such a word is not satisfied unless there is a bad
purpose or evil intent." Rollin M. Perkins & Ronald N. Boyce,
Criminal Law 875-76 (3d ed. 1982).
"Almost all of the cases under [Bankruptcy Code 523(a)(6)]
deal with the definition of the two words 'willful' and 'mali
cious.' Initially one might think that willful and malicious
mean the same thing. If they did, Congress should have
used one word and not both. Most courts feel compelled
to find some different meaning for each of them." David G.
Epstein et aI., Bankruptcy 7-30, at 531 (1993).
willful and malicious injury. See INJURY.
willful and wanton misconduct. See MISCOKDUCT.
willful and wanton negligence. See gross negligence
under NEGLIGENCE.
willful blindness. (1927) Deliberate avoidance ofknowl
edge of a crime, esp. by failing to make a reasonable
inquiry about suspected wrongdOing despite being
aware that it is highly probable. - A person acts with
willful blindness, for example, by deliberately refusing
to look inside an unmarked package after being paid
by a known drug dealer to deliver it. Willful blind
ness creates an inference ofknowledge of the crime in
question. See Model Penal Code 2. [Cases: Criminal
Law 314.]
willful-blindness instruction. See JURY INSTRUCTION.
willful, continued, and obstinate desertion. See obsti
nate desertion under DESERTIOK.
willful homicide. See HOMICIDE.
willful indifference to the safety of others. See willful
and wanton misconduct under MISCONDUCT.
willful infringement. See INFRINGEMENT.
willful misconduct. See MISCOND1.:CT.
willful misconduct ofan employee. See MISCONDUCT.
willful murder. See MURDER.
willful neglect. See NEGLECT.
willful negligence. 1. See advertent negligence under
NEGLIGENCE. 2. See gross negligence (2) under ::-<EGLI
GENCE.
willfulness. (13c) 1. The fact or quality of acting pur
posely or by design; deliberateness; intention. -Willful
ness does not necessarily imply malice, but it involves
more than just knowledge. 2. The voluntary, intentional
violation or disregard of a known legal duty. Also
termed legal willfulness. [Cases; Negligence (;::::::275.]
willful tort. See intentional tort under TORT.
willful wrong. See intentional wrong under WRONG.
Williams Act. A federal statute, enacted in 1968, that
amended the Securities Exchange Act of 1934 by
1738 Wills Act
requiring investors who own more than 5% ofa com
pany's stock to furnish certain information to the SEC
and to comply with certain requirements when making
a tender offer. [Cases: Securities Regulation ~52.l0-
52.50.]
Wills Act. 1. STATUTE OF WILLS (1). 2. An 1837 English
statute that allowed people to dispose of every type of
property interest by will and that had an elaborate set of
requirements for valid execution . Some states today
continue to adhere to these stringent requirements.
Cf. Uniform Probate Code 2-502. -Also termed (in
sense 2) Lord Langdale's Act.
will substitute. A document or instrument that allows a
person, upon death, to dispose ofan estate in the same
or similar manner as a will but without the formali
ties and expense of a probate proceeding . The most
common will substitutes are trusts, life-insurance
plans, and retirement-benefits contracts. The creation
of will substitutes has been one of the most important
developments in the area of decedents' estates in the
past 50 Cf. nonprobate asset under ASSET. [Cases:
Wills
Winchester, Statute of. Hist. A statute passed in the 13th
year of the reign of Edward I, requiring every man to
provide himself with armor to keep the peace, rec
ognizing and regulating the offices of high and petty
constables, organizing the police, and enforcing the
old Saxon police laws . It was repealed in 1827 by the
Criminal Statutes (England) Repeal Act. St. 7 & 8 Geo.
4, ch. 27.
Winchester measure. Hist. The standard weights and
measures of England, originally kept at Winchester.
windfall. (I5c) An unanticipated benefit, usu. in the form
ofa profit and not caused by the recipient.
windfall-profits tax. See TAX.
winding up, n. (1858) The process of settling accounts
and liquidating assets in anticipation ofa partnership's
or a corporation's dissolution. Cf. DISS01"UTION (4).
[Cases: Corporations (;::::618; Partnership ~277.l
wind up, vb. wind up, n.
window-dressing. (1898) The deceptive arrangement of
something, usu. facts or appearances, to make it appear
more attractive or favorable . The term is often used to
describe the practice of some financial managers, esp.
some managers of mutual funds, to sell certain posi
tions at the end of a quarter to make an investment's
quarterly performance appear better than it actually
was. See PORTFOLIO PUMPING.
window tax. See TAX.
winner-take-all vote. See VOTE (3).
wipe. See SWIPE (3).
WIPO. abbr. WORLD INTELLECTGAL PROPERTY ORGA
NIZATION.
WIPO Copyright Treaty. A 1996 treaty that made
changes in the Berne Convention in light ofthe TRIPs
Agreement and dealt with new copyright issues raised
by the emergence of the Internet and other digital technology" The WIPO Treaty expressly protects
computer software and databases and expressly
excludes from protection "ideas, procedures, methods
of operation or mathematical concepts as such." The
WIPO Copyright Treaty was adopted simultane
ously with the WIPO Performances and Phonograms
Treaty. -Abbr. WCT.
WIPO digital agenda. See DIGITAL AGENDA.
WIPO Performances and Phonograms Treaty. A 1996
treaty giving performers the rights ofattribution and
integrity in their performances, and giving produc
ers the rights of reproduction, distribution, rental, and
availability. -Abbr. WPPT.
wire fraud. See FRAUD.
wiretapping, n. (1904) Electronic or mechanical eaves
dropping, usu. done by law-enforcement officers under
court order, to listen to private conversations . Wire
tapping is regulated by federal and state law. -Often
shortened to tapping. See BUGGING; EAVESDROPPING.
Cf. PEN REGISTER. [Cases: Telecommunications C=
1434-1441,1460-1479.] -wiretap, vb. wiretap, n.
Wisby, laws of. See LAWS OF VISBY.
wish, vb. 1. To desire; to hope. 2. To will; to devise; to
give.
witan (wit-.m). [Anglo-Saxon "wise men"] Hist. The
members of the king's council who sat to assist the
king in administrative and judicial matters . Among
the members were ealdormen, bishops, abbots, high
officers, and occasionally the king's friends and rela
tives.
witchcraft. The practices ofa witch, esp. in black magic;
sorcery. Under the Witchcraft Act of 1541 (33 Hen.
8, ch. 8) and the Witchcraft Act of 1603 (l Jac. ch. 12),
witchcraft was a felony punishable by death without
benefit of clergy. The last execution in England for
witchcraft occurred in 1716" The Acts were repealed in
1736. In the United States, the most conspicuous (and
nearly the last) persecution for witchcraft occurred in
Salem, Massachusetts, where 19 people were hanged
for this offense in 1692.
wite (WIt). Hist. A penal fine exacted by the Crown or
other authority for a serious crime, such as murder.
Also spelled wyte.
witenagemot (wit-a-na-ga-moht). [Anglo-Saxon "a
meeting of the wise"] Hist. A national assembly of
noblemen, high ecclesiastics, and other great thanes of
England who advised and aided the king in the general
administration of the government . Its composition
depended on the will ofthe king. It passed out ofexis
tence with the Norman Conquest (1066). Although it
was a precursor to the British Parliament, that was a
separate growth -not a continuation of the witena
gemot. -Also spelled witenagemot; wittel1agemot;
witanagemote.
"[T]he ancient Anglo-Saxon general assembly of the
notables [was] called the Witenagemot .... At first the
power of the Anglo-Saxon Witenagemot appears to have
been considerable, and in fact so much so that the kings
1739 without objection
were dependent on appointment to that office by the Witan
in the early period before the royal succession became
hereditary. With the tenth century centralization of power
in the Alfredian line of kings, it appears that the power of
the Witan began to decline." Charles Herman Kinnane, A
First Book on AngloAmerican Law 262 (2d ed. 1952).
witepenny. Hist. In early English law, money paid in sat
isfaction ofa wite.
with all deliberate speed. See DELIBERATE SPEED, WITH
ALL.
with all faults. See AS IS.
withdraw, vb. 1. (vt.) To take back (something presented,
granted, enjoyed, possessed, or allowed) <withdraw
blame>. 2. (vt.) To retract (one's words) <withdraw
the objection>. 3. (vi.) To refrain from prosecuting or |
retract (one's words) <withdraw
the objection>. 3. (vi.) To refrain from prosecuting or
proceeding with (an action) <withdraw the petition
for divorce>. 4. (vi.) (Of a lawyer) to terminate one's
representation of a client before a matter is complete
<withdraw from representation>. [Cases: Attorney and
Client 5. (vt.) To remove a juror <withdraw
a biased juror>. 6. (vi.) To leave or retire (from a com
munity or society). 7. (vi.) (Of a condition or immaterial
thing) to vanish, depart.
withdrawal, n. (I8c) 1. The act of taking back or away;
removal <withdrawal ofconsent>. 2. The act of retreat
ing from a place, position, or situation <withdrawal
from the moot-court competition>. 3. The removal
of money from a depository <withdrawal of funds
from the checking account>. 4. RENUNCIATION (3)
<withdrawal from the conspiracy to commit arson>.
5. RETRACTION (4). 6. Parliamentary law. A motion's
removal from consideration by its mover . The
mover controls a motion only until the chair states
the question, after which the motion belongs to the
assembly and the mover cannot withdraw it without
the assembly's permission. See request for permission
to withdraw a motion under REQUEST. 7. Parliamentary
law. See DISCHARGE (9). -withdraw, vb.
withdrawal ofcharges. (1842) The removal of charges by
the one bringing them, such as a prosecutor. See NOLLE
PROSEQUI. [Cases: Criminal Law ~303.5.1
withdrawal of counsel. (1875) An attorney's termina
tion ofhis or her role in representing a party in a case.
Normally, the attorney must have the court's per
mission to withdraw from a case. Permission is usu.
sought by a written motion (I) explaining the reason
for the requested withdrawal (often, a conflict between
attorney and client over a matter such as strategy or
fees), and (2) stating whether the client agrees. -Also
termed Withdrawing ofcounsel. [Cases: Attorney and
Client
withdrawing a juror. (18c) The act or an instance of
removing a juror, usu. to obtain a continuance in a case
or, sometimes in English practice, to end the case, as
when the case has settled, the parties are too anxious to
proceed to verdict, or the judge recommends it because
the action is not properly before the court.
withdrawing of record. 1. With the court's permission,
taking the record or any portion ofit out of the office of the clerk ofthe court. 2. Hist. A plaintiff's removing
of the nisi prius or trial record to prevent the case from
being tried, usu. either before the jury is sworn or after
wards with the consent ofdefense counsel.
withdrawn land. 1. See reserved land under LAND. 2. See
RESERVATION (3).
withernam (with-;)r-nahm), n. [fro Saxon weder"other" +
naam u a taking"] Hist. A reciprocal taking or distress in
place of a previous one. See capias in withernam under
wrTHERNAM.
withersake (with-dr-sayk). Archaic. An enemy; esp., a
deliberately faithless renegade.
with full power. See committee with power under COM
MITTEE (1).
withheld sentence. See suspended sentence under
SENTENCE.
withholding, n. (1940) 1. The practice of deducting a
certain amount from a person's salary, wages, divi
dends, winnings, or other income, usu. for tax purposes;
esp., an employer's practice of taking out a portion of
an employee's gross earnings and paying that portion
to the government for income-tax and social-security
purposes. [Cases: Internal Revenue ~4849; Taxation
~3560.1 2. The money so deducted. -Also termed
income-tax withholding. withhold, vb.
withholding ofevidence. (1848) The act or an instance of
obstructing justice by stifling or suppressing evidence
knowing that it is being sought in an official investi
gation or a judicial proceeding. See OBSTRUCTION OF
JUSTICE. [Cases: Obstructing Justice ~5.]
withholding tax. See TAX.
without day. See GO HENCE WITHOUT DAY.
without delay. (Be) 1. Instantly; at once. 2. Within the
time reasonably allowed by law.
without dissent. See WITHOUT OBJECTION.
without impeachment ofwaste. (l6c) (Of a tenant) not
subject to an action for waste; not punishable for waste.
This clause is inserted in a lease to give a tenant the
right to take certain actions (such as cutting timber)
without being held liable for waste. But a tenant cannot
abuse the right and will usu. be held liable for mali
ciously committing waste. Also termed absque impe
titione vasti. [Cases: l.andlord and Tenant ~55(2).J
without notice. (16c) Lacking actual or constructive
knowledge . To be a bona fide purchaser, one must
buy something "without notice" ofanother's claim to
the item or of defects in the seller's title. To be a holder
in due course, one must take a bill or note "without
notice" that it is overdue, has been dishonored, or is
subject to a claim. UCC 3-302(a)(2). See NOTICE;
bOfia fide purchaser under PURCHASER. [Cases: Bills
and Notes C=: 331, 336; Sales (~234(1), 473; Vendor
and Purchaser C=)220.]
without objection. With general consent. - Also termed
without dissent. See general consent under CONSENT
(2).
1740 without prejudice
without prejudice, adv. (I5c) Without loss ofany rights;
in a way that does not harm or cancel the legal rights or
privileges ofa party <dismissed without prejudice>. See
dismissal without prejudice under DISMISSAL (1).
without recourse. (I8c) (In an indorsement) without lia
bility to subsequent holders. With this stipulation,
one who indorses an instrument indicates that he or
she has no further liability to any subsequent holder
for payment. -Also termed sans recours. [Cases: Bills
and Notes C=>293.)
without reserve. Ofor relating to an auction at which
an item will be sold for the highest bid price. [Cases:
Auctions and Auctioneers C~)7.)
without this, that. See ABSQUE HOC.
with power. See committee with power under COMMIT
TEE (1).
with prejudice, adv. With loss ofall rights; in a way that
finally disposes of a party's claim and bars any future
action on that claim <dismissed with prejudice>. See
dismissal with prejudice under DISMISSA L (1).
with recourse, adv. (In an indorsement) with liability to
subsequent holders . With this stipulation, one who
indorses an instrument indicates that he or she remains
liable to the holder for payment. [Cases: Bills and Notes
C=>280,286.]
with reserve. Of or relating to an auction at which an
item will not be sold unless the highest bid exceeds
a minimum price. [Cases: Auctions and Auctioneers
C=>7.]
with strong hand. With force. In common-law
pleading, this term implies a degree ofcriminal force,
esp. as used in forcible-entry statutes.
witness, n. (bef. 12c) 1. One who sees, knows, or vouches
for something <a witness to a testator's signature>. 2.
One who gives testimony under oath or affirmation (1)
in person, (2) by oral or written deposition, or (3) by
affidavit <the witness to the signature signed the affida
vit.>. A witness must be legally competent to testify.
[Cases: Witnesses witness, vb.
"The term 'witness,' in its strict legal sense, means one
who gives evidence in a cause before a court; and in its
general sense includes all persons from whose lips testi
mony is extracted to be used in any judicial proceeding,
and so includes deponents and affiants as well as persons
delivering oral testimony before a court or jury," 97 c.J.$.
Witnesses 1, at 350 (1957).
"Every witness is an editor: he tells you not everything he
saw and heard, for that would be impossible, but what he
saw and heard and found significant, and what he finds
significant depends on his preconceptions." Patrick Devlin,
The Criminal Prosecution in England 66 (1960).
accomplice witness. (1853) A witness who is an accom
plice in the crime that the defendant is charged with.
A codefendant cannot be convicted solely on the
testimony ofan accomplice witness. [Cases: Criminal
Law (;.'='507-512.]
adverse witness. See hostile witness. alibi witness. (I897) A witness who testifies that the
defendant was in a location other than the scene of
the crime at the relevant time; a witness who supports
the defendant's alibi.
attesting witness. (18c) One who vouches for the
authenticity of another's signature by signing an
instrument that the other has signed <proof of the
will requires two attesting witnesses>. -Also termed
subscribing witness. [Cases: Evidence C=>374; Wills
character witness. (1893) A witness who testifies about
another person's character traits or community rep
utation. See character evidence under EVIDENCE.
[Cases: Witnesses C=>37(4), 274.]
competent witness. (17c) A witness who is legally
qualified to testify . A lay witness who has personal
knowledge ofthe subject matter of the testimony is
competent to testify. Fed. R. Evid. 601-602. [Cases:
Witnesses C=>35-79.]
corroborating witness. (1853) A witness who confirms
or supports someone else's testimony. [Cases: Wit
nesses C=>41O.]
court witness. A witness called or re-called to testify by
the judge. The witness called to testify by the court
usu. has expertise in the subject matter of the trial
and is considered necessary to resolve a conflict in the
testimony. The court's discretion to call its own wit
nesses exists in both civil and criminal cases. [Cases:
Witnesses C=>Z46(Z).J
credible witness. (l6c) A witness whose testimony is
believable.
disinterested witness. (18c) A witness who has no
private interest in the matter at issue. [Cases: Wit
nesses (>::)91.]
expert witness. (1858) A witness qualified by knowl
edge, skill, experience, training, or education to
provide a scientific, technical, or other specialized
opinion about the evidence or a fact issue. Fed. R.
Evid. 702-706. -Also termed skilled witness. See
EXPERT; DAUBERT TEST; expert opinion under OPINION
(3). [Cases: Criminal Law (>=-478-480; Evidence'C=>
535-546.]
going witness. Archaic. A witness who is about to
leave a court's jurisdiction, but not the country.
An example is the witness who leaves one state to go
to another.
grand-jury witness. (1947) A witness who is called to
testify before a grand jury. [Cases: Grand Jury
36.]
hostile witness. (1852) A witness who is biased against
the examining party, who is unwilling to testify, or
who is identified with an adverse party. A hostile
witness may be asked leading questions on direct
examination. Fed. R. Evid. 611(c). Also termed
adverse witness. See adverse party under PARTY (2).
[Cases: Witnesses C~244.1
1741
interested witness. (i8c) A witness who has a direct and
private interest in the matter at issue . Most juris
dictions provide that a person witnessing a will may
not be a devisee under the will. The Uniform Probate
Code, however, has abrogated this rule. lCases: Wit
nesses
lay witness. (1853) A witness who does not testify as
an expert and who is therefore restricted to giving an
opinion or making an inference that (1) is based on
firsthand knowledge, and (2) is helpful in clarifying
the testimony or in determining facts. Fed. R. Evid.
701. Criminal Law ~448-467;
470-503.J
material witness. (I7c) A witness who can testify about
matters haVing some logical connection with the con
sequential facts, esp. iffew others, ifany, know about
those matters. [Cases: Witnesses ~4.1
percipient witness. (1913) A witness who has perceived
the things about which he or she testifies. See EYEWIT
NESS; EARWITNESS.
prosecuting witness. (1823) A person who files the com
plaint that triggers a criminal prosecution and whose
testimony the prosecution usu. relies on to secure a
conviction. [Cases: Criminal Law
qualified witness. (1845) A witness who, by explaining
the manner in which a business records are made and
kept, is able to lay the foundation for the admission of
those records under an exception to the hearsay rule.
Fed. R. Evid. 803(6). [Cases: Criminal Law C:)444.9;
Evidence ~373.1
rebuttal witness. (1891) A witness who contradicts
or attempts to contradict evidence previously pre
sented.
res gestae witness. (1894) A witness who, having been at
the scene of an incident, can give a firsthand account
ofwhat happened. See RES GESTAE. [Cases: Criminal
Law ~363; Evidence <::= 120.] |
RES GESTAE. [Cases: Criminal
Law ~363; Evidence <::= 120.]
skilled witness. 1. See expert witness. 2. A witness
whose degree ofknowledge in a particular subject or
field is short of the standard for an expert but greater
than the knowledge possessed by a typical layperson.
[Cases: Criminal Law~452, 478; Evidence ~474,
536.]
subscribing witness. (l7c) One who witnesses the sig
natures on an instrument and signs at the end of the
instrument to that effect. See attesting witness. [Cases:
Evidence Wills 123.]
supernumerary witness. An unrequired witness,
such as a third witness to a will where only two are
required. [Cases: Wills ~712.1
swift witness. See zealous witness.
target witness. (1965) 1. The person who has the knowl
edge that an investigating body seeks. [Cases: Grand
2. A witness who is called before a grand
jury and against whom the government is also seeking
an indictment. witness-tampering
turncoat witness. (1947) A witness whose testimony
was expected to be favorable but who becomes (usu.
during the trial) a hostile witness.
ultroneous witness. Scots law. A witness who comes
forward without being summoned to appear in
court.
zealous witness (zel-;:Is). (1868) A witness who shows
partiality toward the litigant that called him or her
to testify and who seems eager to help that side in the
lawsuit. -Also termed swift witness.
witness box. See WITNESS STAND.
witness clause. See TESTIMONIUM CLAUSE.
witnesseth, vb. Shows; records . This term, usu. set in
all capitals, commonly separates the preliminaries in a
contract, up through the recitals, from the contractual
terms themselves. Modern drafters increasingly avoid it
as an antiquated relic. Traditionally, the subject of this
verb was This Agreement: the sentence, boiled down,
was This Agreement witnesseth [i.e., shows or recordsJ
that, whereas [the parties have agreed to contract with
one another], the parties therefore agree as follows . ...
Many modern contracts erroneously retain the Witnes
seth even though a new verb appears in the preamble:
This Agreement is between lone party and the other
party]. After the preamble is a period, followed by an
all-capped WITNESSETH. It is an example of a form
retained long after its utility, and most lawyers do
not know what it means or even what purpose it once
served.
witness fee. See FEE (1).
witnessing part. 1. See ATTESTATION CLAUSE. 2. See
TESTATUM (2).
witness jurat. See JURAT.
witness-protection program. (1970) A federal or state
program in which a person who testifies against a
criminal is aSSigned a new identity and relocated
to another part of the country to avoid retaliation
by anyone convicted as a result of that testimony .
The Federal Witness Protection Program was estab
lished by the Organized Crime Control Act of 1970
and is administered by the marshals ofthe u.s. Justice
Department.
witness stand. (1853) The space in a courtroom, usu. a
boxed area, occupied by a witness while testifying.
Often shortened to stand. -Also termed witness box.
[Cases: Witnesses ~228.1
witness-tampering. (1924) The act or an instance of
obstructing justice by intimidating, influencing, or
harassing a witness before or after the witness testi
fies. Several state and federal laws, including the
Victim and Witness Protection Act of 1982 (18 USCA
1512), proVide criminal penalties for tampering with
witnesses or other persons in the context ofa pending
investigation or official proceeding. See OBSTRUCTION
OF JUSTICE. [Cases: Obstructing Justice
witword (wit-ward). Hist. 1. A legally allowed claim; esp.,
the right to vindicate ownership or possession by one's
affirmation under oath. 2. A will or testament.
W.L. abbr. WESTLAW.
wobbler. Slang. A crime that can be charged as either a
felony or a misdemeanor. [Cases: Criminal Law C=:>
27.]
wolf's head. Hist. An outlaw, who was formerly often
referred to as carrying a wolf's head (caput lupinum)
and to be no more than a wild beast or wolf who could
be slain and whose head could be carried to the king.
Also termed woolferthfod. See OUTLAW.
"Outlawry is the last weapon of ancient law, but one that
it must often use. As has been well said, it is the sentence
of death pronounced by a community which has no police
constables or professional hangmen. To pursue the outlaw
and knock him on the head as though he were a wild beast
is the right and duty of every law-abiding man. 'Let him
bear the wolf's head:' this phrase is in use even in the thir
teenth century." 1 Frederick Pollock & Frederic W. Maitland,
The History ofEnglish Law Before the Time ofEdward 1476
(2d ed. 1898).
Women's Bureau. A unit in the U.S. Department ofLabor
responsible for formulating policies and standards to
promote the welfare ofwage-earning women.
women's shelter. See SHELTER.
Women's Suffrage Amendment. See NINETEENTH
AMENDMENT.
wood-corn, n. Hist. A quantity of oats or grain paid by
customary tenants to a lord for the privilege ofpicking
up dead or broken wood.
wood-geld (wuud-geld). Hist. 1. Money paid for the
privilege of taking wood from a forest. 2. Immunity
from paying money for this privilege. -Also termed
pudzeld.
wood-leave. Hist. A license or right to cut down, remove,
and use standing timber.
wood-mote (wuud-moht). See COURT OF ATTACH
MENTS.
Wood-Plea Court. Hist. A court held twice a year in
Clun Forest, in Shropshire, to determine matters of
wood and agistments.
woodshedding. See HORSESHEDDING.
woodward (wuud-word), n. Hist. A forest officer who
patrols and protects the forest. [Cases: Woods and
Forests C=:>7.]
woolferthfod. See WOLF'S HEAD.
w.o.p. abbr. WANT OF PROSECUTION.
word of art. See TERM OF ART.
words actionable in themselves. (I8c) Language that is
libelous or slanderous per se. See slander per se under
SLANDER; libel per se under LIBEL. [Cases: Libel and
Slander C=:>33.]
words of limitation. (16c) Language in a conveying
instrument -often non literal language -describing
the extent or quality ofan estate . For example, under
long-standing principles of property law, the phrase "to A and her heirs" creates a fee simple in A but gives
nothing to!\s heirs. See LIMITATION (4). [Cases: Deeds
C=:> 120-136; Wills C=:>591, 597(4).]
'''Words of limitation' is the phrase used to describe the
words which limit (i.e., delimit or mark out) the estate to
be taken. Thus in a conveyance today 'to A in fee simple,'
the words 'in fee simple' are words of limitation, for they
show what estate A is to have." Robert E. Megarry & M.P.
Thompson, A Manual of the Law of Real Property 29 (6th
ed. 1993).
words of negotiability. See NEGOTIABLE WORDS.
words of procreation (proh-kree-ay-shan). 08c)
Language in a deed essential to create an estate tail,
such as an estate "to A and the heirs of his body. [Cases:
Deeds C=:> 127.]
words ofpurchase. (I7c) Language in a deed or will des
ignating the persons who are to receive the grant. For
example, the phrase "to A for life with a remainder to
her heirs" creates a life estate in A and a remainder
in !\s heirs. See PURCHASE (2). [Cases: Deeds C=:> 105,
120-136; Wills C=:>597(4).]
words ofseverance. In a grant of lands, words showing
that the tenants were each to take a distinct share in the
property as opposed to undivided portions . Typical
words of severance are share and share alike, to be
divided among, equally, and between. [Cases: Deeds
C=:> 123, 136.]
work, n. 1. Physical and mental exertion to attain an end,
esp. as controlled by and for the benefit ofan employer;
labor.
additional work. 1. Work that results from a change or
alteration in plans concerning the work required, usu.
under a construction contract; added work neces
sary to meet the performance goals under a contract.
[Cases: Contracts C=:>232(1).] 2. See extra work.
extra work. In construction law, work not required
under the contract; something done or furnished in
addition to the contract's requirements; work entirely
outside and independent of the contract and not
contemplated by it. A contractor is usu. entitled to
charge for extra work consisting oflabor and materials
not contemplated by or subsumed within the original
contract, at least to the extent that the property owner
agrees to a change order. Materials and labor not con
templated by the contract, but that are required by
later changes in the plans and specifications, are con
sidered to be extra work. -Also termed additional
work. [Cases: Contracts C=:>232(1).]
heavy work. Work involving frequent lifting and
carrying oflarge items . Under the Social Security
Administration regulations for describing a worker's
physical limitations, heavy work involves lifting
no more than 100 pounds, with frequent lifting or
carrying ofobjects weighing up to 50 pounds. 20 CFR
404. [Cases: Social Security and Public Welfare C=:>
140.40,143.70-143.80.]
inherently dangerous work. Work that can be carried
out only by the exercise of special skill and care and
that involves a grave risk of serious harm if done
1743 work
unskillfully or carelessly. [Cases: Labor and Employ
ment ~2872.]
light work. Work involving some limited lifting and
moving. Under the Social Security Administration
regulations for describing a worker's physicallimita
tions, light work includes walking, standing, sitting
while pushing or pulling arm or leg controls, and
lifting no more than 20 pounds, with frequent lifting
or carrying ofobjects that weigh up to 10 pounds. 20
CFR 404. [Cases: Social Securitv and Public Welfare
~140.40,143.85.] I
medium work. Work involving some frequent lifting
and moving. _ Under the Social Security Adminis
tration regulations for describing a worker's physical
limitations, medium work includes lifting up to 50
pounds, with frequent lifting or carrying of objects
weighing up to 25 pounds. 20 CFR 404. [Cases:
Social Security and Public Welfare 140.40,
143.70-143.80.]
sedentary work. Work involving light lifting and only
occasional walking or standing . Under the Social
Security Administration regulations for describ
ing a worker's physical limitations, sedentary work
involves lifting of no more than ten pounds: occa
sionally carrying small items such as docket files and
small tools, and occasional standing or walking. 20
CFR 404. [Cases: Social Security and Public Welfare
(;:::,140.40, 143.85.] .
semi-skilled work. Work that may require some alert
ness and close attention, such as inspecting items or
machinery for irregularities, or guarding property or
people against loss or injury. 20 CFR 404.lS68(b).
Also written semiskilled work. [Cases: Social Security
and Public Welfare (~140.40, 143.70-143.85.]
skilled work. Work requiring the worker to use
judgment, deal with the public, analyze facts and
figures, or work with abstract ideas at a high level of
complexity. 20 CFR 404. [Cases: Social Security and
Public Welfare (;=140.40,143.70-143.85.]
unskilled work. Work requiring little or no judgment,
and involVing simple tasks that can be learned quickly
on the job. 20 CFR 404. [Cases: Social Security and
Public Welfare 140.40,143.70-143.85.]
very heavy work. Work involving frequent lifting of
very large objects and frequent carrying of large
objects. Under the Social Security Administration
regulations for describing a worker's physicallimita
tions, very heavy work involves lifting 100 pounds
or more, and frequent lifting or carrying of objects
weighing 50 pounds or more. 20 CFR 404.1567(e).
[Cases: Social Security and Public Welfare ~140.40,
143.70-143.80.]
work ofnecessity. Work reasonably essential to the
public's economic, social, or moral welfare as deter
mined by the community standards at a particular
time, and (formerly) excepted from the operation of
blue laws. See BLUE LAW. [Cases: Sunday~7.] 2. Copyright. An original expression, in fixed or
tangible form (such as paper, audiotape, or computer
disk), that may be entitled to common-law or statutory
copyright protection. - A work may take many differ
ent forms, including art, sculpt |
may be entitled to common-law or statutory
copyright protection. - A work may take many differ
ent forms, including art, sculpture, literature, music,
crafts, software, and photography. [Cases: Copyrights
and Intellectual Property ~3.]
anonymous work. A work that, on copies or phono
records, does not identify any natural person as the
author. 17 USCA 101.
architectural work. The copyrightable design of a
building, as fixed in tangible media such as plans,
draWings, and the building itself. 17 USCA 102(8).
-Only the overall design is protected, not each design
element. This category of works was added to U.S.
law by the Berne Convention Implementation Act of
1988. It is one of eight categories eligible for copy
right protection. [Cases: Copyrights and Intellectual
Property C='6.]
artistic work. Any visual representation, such as a
painting, drawing, map, photograph, sculpture,
engraving, or architectural plan. [Cases: Copyrights
and Intellectual Property ~6.]
audiovisual work. A work consisting ofrelated images
that are presented in a series, usu. with the aid of a
machine, and accompanied by sound. -An example
of an audiovisual work is a lecture illustrated with
a film strip, or a movie with a soundtrack. [Cases:
Copyrights and Intellectual Property ~10.1.]
collective work. (1870) 1. A publication (such as a peri
odical issue, anthology, or encyclopedia) in which
several contributions, constituting separate and inde
pendent works in themselves, are assembled into a
copyrightable whole. [Cases: Copyrights and Intellec
tual Property ~41(3).] 2. A selection and arrange
ment ofbrief portions ofdifferent movies, television
shows, or radio shows into a Single copyrightable
work. Ifthe selecting and arranging involves any
originality, the person who selects and arranges the
clips may claim a copyright even ifcopyright cannot
be claimed in the individual component parts. Cf.
COMPILATION (1). [Cases: Copyrights and Intellectual
Property C--=> 12(3).]
"If a work is not joint and not derivative but nevertheless
consists of works of authorship created by more than one
person, it is a compilation of some sort except for the
possibility that it is a work for hire.... If the component
parts have an independent identity, that is, they are works
of authorship, then the compilation is a collective work, a
type of compilation." Arthur R. Miller & Michael H. Davis,
Intellectual Property in a Nutshell 374 (2d ed. 1990).
composite work (kdm-poz-it). (1910) An original publi
cation that relates to a variety ofsubjects and includes
discrete selections from many authors. _ Although
the distinguishable parts are separately protectable,
the owner ofthe composite work -not the individual
authors -owns the renewal term, if any. 17 USCA
304(a). [Cases: Copyrights and Intellectual Property
~38.] ,
creative work. See work ofauthorship.
derivative work. (1965) A copyrightable creation that is
based on a preexisting product; a translation, musical
arrangement, fictionalization, motion-picture version,
abridgment, or any other recast or adapted form of
an original work. -Only the holder ofthe copyright
on the original form can produce or permit someone
else to produce a derivative work. 17 USCA IOI.
Sometimes shortened to derivative. Cf. COMPILATION
(1). [Cases; Copyrights and Intellectual Property
12(3).]
"[Wlhile a compilation consists merely of the selection and
arrangement of pre-existing material without any internal
changes in such material, a derivative work involves recast
ing or transformation, i.e., changes in the preexisting
material, whether or not it is juxtaposed in an arrangement
with other pre-existing materials. A catalog constitutes
a compilation, and a translation of a pre-existing work
constitutes a derivative work." 1 Melville B. Nimmer &
David Nimmer, Nimmer on Copyright 3.02, at 3-5 (Supp.
1997).
dramatic work. Any form ofnonliterary work created
for performance and viewing. -The term includes
plays, scripts, films, choreographic works, and
similar creations. [Cases: Copyrights and Intellec
tual Property C::c7.]
joint work. A work created or developed by two or
more people whose contributions blend insepara
bly or interdependently into the whole work . The
cocreators have equal legal rights to register and enjoy
the copyright, but this does not affect any other con
tractually unequal ownership arrangements. [Cases:
Copyrights and Intellectual Property <::=41(3).J
literary work. (I8c) A nonaudiovisual work that is
expressed in verbal, numerical, or other symbols,
such as words or musical notation, and embodied in
some type of physical object. -Literary works are
one of eight general categories that are eligible for
copyright protection. 17 USCA 102_ Cf. LITERARY
COMPOSITION. [Cases: Copyrights and Intellectual
Property (>5.]
"Copyright protection extends to literary works which are
defined as works, other than audiovisual works, expressed
in words, numbers, or other verbal or numerical symbols
or indicia, regardless of the nature of the material objects,
such as books, periodicals, manuscripts, phonorecords,
film, tapes, disks, or cards in which they are embodied.
The term 'literary work' does not connote any criterion of
literary merit or qualitative value and includes catalogs
and directories; similar factual, reference or instructional
works; compilations of data; computer data bases, and
computer programs." 18 Am, Jur. 2d Copyright and Literary
Property 25, at 360 (1985).
pictorial, graphic, and sculptural work. Two-or three
dimensional works ofgraphic, fine, or applied art that
are eligible for copyright protection. -This is one of
eight general classifications covered by copyright law.
Examples include globes, architectural draWings,
photographs, and models. 17 USCA 102. Abbr.
PGS. [Cases: Copyrights and Intellectual Property
(>6.]
posthumous work. The product ofan author who died
before publication. [Cases: Copyrights and Intellec
tual Property (>33.] pseudonymous work. A work done by an author who
uses a fictitious name.
work for hire. A copyrightable work produced either
by an employee within the scope of employment or
by an independent contractor under a written agree
ment; esp., a work specially ordered or commissioned
for use as (1) a contribution to a collective work, (2) a
translation, (3) a supplementary work, (4) a part ofa
movie or other audiovisual work, (5) a compilation,
(6) an instructional text, (7) a test, (8) answer material
for a test, or (9) an atlas. Ifthe work is produced
by an independent contractor, the parties must agree
expressly in writing that the work will be a work for
hire. The employer or commissioning party owns the
copyright. 17 USCA 101. Also termed work made
for hire. [Cases: Copyrights and Intellectual Property
G--:;'41(2).]
work ofauthorship. The product ofcreative expression,
such as literature, music, art, and graphic designs.
Copyright protects a work of authorship if it meets
three criteria. First, the work must be original, not a
copy. Second, the work must be presented in a fixed
medium, such as a computer disk, a canvas, or paper.
Finally, some creativity must have been involved in
the work's creation, although the amount of creativ
ity required depends on the particular work. -Also
termed creative work. [Cases: Copyrights and Intel
lectual Property
work ofthe United States government. A work created
by a U.S. government officer or employee in the course
of performing official duties. -By statute, federal
government works may not be copyrighted. [Cases:
Copyrights and Intellectual Property (>10.3.]
work, vb. L To exert effort; to perform, either phYSically
or mentally <lawyers work long hours during trial>.
2. To function properly; to produce a desired effect
<the strategy worked>. 3. Patents. To develop and use
(a patented invention, esp. to make it commercially
available) <the patentee failed to work the patent>.
Failure to work a patent in a specified amount of time
is grounds for a compulsory license in some countries.
[Cases: Patents C=> 191.)
"A patentee has the exclusive right to make, use, or sell the
invention. 35 U.S.CA. 154. The right includes the right
to refrain from making, using, or selling the invention, In
many foreign countries, the inventor is obliged to 'work'
the patent and if he does not do so, he can be required to
grant a compulsory license to others who wish to exploit
the invention. But an American patentee is under no such
duty. although there are antitrust implications involved
in the failure to work a patent." Arthur R. Miller & Michael
H, Davis, Intellectual Property in a Nutshell 128-29 (2d ed.
1990).
work and labor. Hist. A common count in an action of
assumpsit for the work and labor performed and mate
rials furnished by the plaintiff. See ASSUMPSIT. [Cases:
Assumpsit, Action ofC::c5.J
worker. L One who labors to attain an end; esp., a person
employed to do work for another. 2. A person who offers
to perform services for compensation in the employ of
1745
another, whether or not the person is so employed at
a given time.
Worker Adjustment and Retraining Notification Act.
A federal law that requires an employer to provide
notice of a plant closing or mass layoff, 60 days before
the closing or layoff, to the employees, the state-dis
located-workers unit, and the chief elected official of
the unit oflocal government where the plant closing
or layoff is to occur. 29 USCA 2101-2109. Abbr.
WARN. [Cases: Labor and Employment C=>3202.]
workers' compensation. A system of providing benefits
to an employee for injuries occurring in the scope of
employment . Most workers'-compensation statutes
both hold the employer strictly liable and bar the
employee from suing the employer in tort. -Abbr. we. -Also termed workmen's compensation; employ
ers'liability. [Cases: Workers' Compensation C=> Il.]
"Workers' compensation laws were designed to provide
employees with expansive protection against the conse
quences of employment-related injuries, Injured workers
no longer had to establish negligence attributable to their
employer in order to obtain legal redress. They merely
had to demonstrate that their conditions arose out of and
during the course of their employment," Mark A. Rothstein
et aI., Employment Law 7.3, at 406 (1994),
workers' -compensation act. A statute by which employ
ers are made responSible for bodily harm to their
workers arising out of and in the course of their employ
ment, regardless of the fault of either the employee or
the employer. [Cases: Workers' Compensation C=> 1,
6.]
workers' -compensation board. An agency that reviews
cases arising under workers' -compensation statutes and
administers the related rules and regulations. -Also
termed workers'-compensation commission. [Cases:
Workers' Compensation C=> 1076-1096.10.]
"Workers' compensation boards. , . are tribunals .. , of
limited and special jurisdiction and have only such author
ity and power as have been conferred upon them by
express grant, or by implication as necessary and inciden
tal to the full exercise of their authority. The functions of
such agencies may include the settlement of disputes with
respect to the right to and the amount of compensation,
the supervision of voluntary settlements or agreements,
the collection and administration of compensation funds,
and the supervision and regulation of matters pertaining
to compensation insurance," 82 Am.Jur. 2d Workers' Com
pensation 56, at 65 (1992).
workers' -compensation lien. See LIEN.
workers' -compensation subrogation lien. See workers'
compensation lien under LIEN.
workfare. (1969) A system of requiring a person receiv
ing a public-welfare benefit to earn that benefit by per
forming a job proVided by a government agency or
undergOing job training. [Cases: Social Security and
Public Welfare C=>4.15.j
work for hire. See WORK (2).
work furlough (f<lr-Ioh). (1960) A prison-treatment
program allowing an inmate to be released during the
day to work in the community. See WORK-RELEASE
PROGRAM. [Cases: Prisons C='174.] workplace
work-furlough program. See WORK-RELEASE PROGRAM.
workhouse. (l7c) A jail for criminals who have com
mitted minor offenses and are serving short sentences.
[Cases: Prisons (;;:::)213.]
working capital. See CAPITAL.
working capital acceptance. Seefinance bill under BILL
(6).
working control. See CONTROL.
working example. See EXAMPLE.
working interest. Oil & gas. The rights to the mineral
interest granted by an oil-and-gas lease, so called
because the lessee acquires the right to work on the
leased property to search, develop, and produce oil
and gas, as well as the obligation to pay all costs. See
ROYALTY (2). -Also termed leasehold interest; operat
ing interest. [Cases: Mines and Minerals C=>73.1(2).J
working model. Patents. A sample ofan invention, usu.
built for testing and for displaying to potential buyers.
The building of a working model is called "actual
reduction to practice." It is not required for a patent,
but it can help the applicant to clarify the description
and to establish a date of invention in the event of an
interference. [Cases: Patents C=>9 |
Subsets and Splits