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Glossary
Canon law
The law of the Christian Church having little or no legal effect today. Canon
law refers to the body of law which has been set by the Christian Church and
which, in almost all countries, is not binding upon citizens and has virtually
no recognition in the judicial system. Some citizens resort to canon law,
however, for procedures such as marriage annulments to allow for a Christian
church marriage where one of the parties has been previously divorced. Many
churchgoers and church officers abide by rulings and doctrines of canon law. See
also "ecclesiastical law."
Capital offense
A crime punishable by death.
Capital punishment
Called "capital" because it is the most extreme punishment that can be meted
out. Also known as the death penalty, capital punishment has been banned in many
countries. In the United States, an earlier move to eliminate capital punishment
has now been reversed and more and more states are resorting to capital
punishment for serious offenses such as murder.
Case law
Law based on the entire collection of published legal decisions of the courts.
These decisions contribute to a large part of the legal rules which apply in
modern society. If a rule of law cannot be found in written laws it is a rule
that can often be found in "case law". In other words, the rule is not in the
statute books but can is principle of law, or precedent, established by a judge
in some recorded case. The word jurisprudence has become synonymous for case
law. See also "jurisprudence", "precedent", and "stare decisis".
Caveat
Latin: let him beware. A formal warning.
Caveat emptor
Literally, let the buyer beware. This means that buyers should examine and check
for themselves anything which they intend to purchase, and that the vendor
cannot be held responsible for the condition of the thing bought.
Certiorari
A writ of certiorari is a form of judicial review. A court may be asked to
consider a legal decision of an administrative tribunal, judicial office or
organization (e.g. government), to decide if the decision has been regular and
complete or if there has been an error of law. For example, a certiorari may be
used to wipe out a decision of an administrative tribunal which was made in
violation of the rules of natural justice, such as a failure to give the person
affected by the decision an opportunity to be heard.
Cestui que trust or cestui que use
The formal Latin word for the beneficiary or donee of a trust.
Ceteris paribus
Latin "all things being equal or unchanged".
Chambers
A judge's office, typically including work space for the judge's law clerks and
secretary.
Champerty
An agreement to finance another's lawsuit in exchange for a portion of the
judicial award.
Chaste
A person who has never voluntarily had sexual intercourse outside of marriage,
such as unmarried virgins.
Chattel
Originally a term for "cattle" from the feudal era, when livestock was the most
valuable property other than land. Today, it refers to any moveable item of
property which is neither land nor permanently attached to land or a building,
either directly or vicariously through attachment to real property. A piano is
chattel but an apartment building, a tree or a concrete building foundation are
not. The opposite of chattel is real property which includes lands or buildings.
All property which is not real property is said to be chattel. "Personal
property" and "personalty" are other words sometimes used to describe the
concept of chattel.
Chattel mortgage
An interest given on moveable property (chattel) other than real property, in
writing, to guarantee the payment of a debt or the execution of some action. It
automatically becomes void when the debt is paid or the action is executed. An
interest on real property is termed a "mortgage".
Check or cheque
A form of bill of exchange where the order to pay is given to a bank which is
holding the payor's money.
Chief Judge
The judge who has primary responsibility for the administration of a court;
chief judges are determined by seniority.
Chose in action
A right of property in intangible things or in things which are not in one's
possession, which right is enforceable through legal or court action. Examples
may include salaries, debts, insurance claims, shares in companies, and
pensions.
Circumstantial evidence
Evidence which may allow a judge or jury to deduce a certain fact from other
facts which have been proven. In some cases, there may be evidence essential to
prove a case that cannot be proven directly, such as with an eye-witness. In
these cases, the lawyer will provide the judge or juror with evidence of the
circumstances from which a juror or judge can logically deduct, or reasonably
infer, the fact that cannot be proven directly; it is proven by the evidence of
the circumstances; hence, "circumstantial" evidence. Fingerprints are an example
of circumstantial evidence: while there may be no witness to a person's presence
in a certain place, or contact with a certain object, the scientific evidence of
someone's fingerprints is persuasive proof of a person's presence or contact
with an object.
Citation
An order of a court to either do a certain thing or to appear before it to
answer charges. The citation is typically used for lesser offences (such as
traffic violations) because it relies on the good faith of the defendant to
appear as requested, as opposed to an arrest or bail. The penalty for failing to
obey a citation is often a warrant for the arrest of the defendant.
Civil law
Law inspired by old Roman Law, the primary feature of which was that laws were
written into a collection; codified, and not determined, as is common law, by
judges. The principle of civil law is to provide all citizens with an accessible
and written collection of the laws which apply to them and which judges must
follow.
Clandestine
Something kept purposely from the view or knowledge of others either in
violation of the law or to conduct or conceal some illegal purpose. A
"clandestine marriage" would be one which does not comply with laws related to
publicity.
Class action
Disparate lawsuits combined by the plaintiffs in to a single action because the
circumstances and defendant are identical. This saves court time and allows one
judge to hear all the cases at the same time and to make one decision binding on
all parties. Class action lawsuits would typically occur after a plane or train
accident where all the victims would sue the transportation company together in
a class action suit.
Clayton's Case
An English case which established a presumption that monies withdrawn from a
money account are presumed to be debits from those monies first deposited. First
in, first out. The proper citation is Devaynes v. Noble (1816) 1 Mer. 572) and
the presumption is not applicable to fiduciaries, who are presumed to withdraw
their won money first, and not trust money.
Clean hands
A maxim of the law to the effect that any person, individual or corporate, that
wishes to ask or petition a court for judicial action, must be in a position
free of fraud or other unfair conduct.
Client-lawyer privilege
A right of the client of a lawyer to have any information or words spoken by the
client to the lawyer during the provision of the legal services to that client,
kept strictly confidential. This includes being shielded from testimony before a
court of law. The client may, expressly or impliedly, waive the privilege. It
may also be waived by the lawyer if the disclosure of the information may
prevent a serious crime in an exceptional case.
Codicil
An amendment to an existing will. The codicil changes only the items mentioned
in it, not the entire will.
Collateral
Property which has been committed to guarantee a loan. This may be the property
being purchased by the loan (as in a car) or other property pledged as a
guarantee (such as a certificate of deposit or other financial instrument).
Persons other than the one acquiring the loan may pledge collateral in the
borrower's behalf.
Collateral descendant
A descendant that is not direct, such as a niece or a cousin.
Collateral source rule
A rule of tort law which holds that the one who causes the damage (tort-feasor)
cannot deduct from the amount he or she would be held to pay to the victim of
the tort, any goods, services or money received by that victim from "collateral"
sources as a result of the tort (e.g. insurance benefits).
Collusion
A secret agreement between two or more persons, who seem to have conflicting
interests, to abuse the law or the legal system, deceive a court, or to defraud
a third party. For example, if the partners in a marriage agree to lie about the
duration of their separation in order to secure a divorce.
Commission
A formal group of experts brought together on a regular or ad hoc basis to
debate matters within their sphere of expertise, and with regulatory or
quasi-judicial powers such as the ability to license activity in that sphere of
activity or to subpoena witnesses. Commissions usually also have advisory powers
to government and a commission is often resorted to by governments to
exhaustively investigate a matter of national concern, known as a "commission of
inquiry." This legal structure can be contrasted with a council, the latter not
enjoying quasi-judicial or regulatory powers.
Committee
A term of parliamentary law which refers to a body of one or more persons
appointed by a larger assembly or society, to consider, investigate and/or take
action on certain specific matters. A committee only has those powers which have
been assigned to it by the constituent assembly. Most are merely created to
study matters in detail and to then report to the larger group. This saves the
larger assembly time when it meets and allows it to review and approve a greater
number of items, relying on the committee's report and recommendations.
Committees are either standing or ad hoc (this latter kind is also known as a
"special committee").
Common law
Judge-made law. Law which exists and applies to a group on the basis of
historical legal precedents developed over hundreds of years. Because it is not
written by elected politicians but, rather by judges, it is also referred to as
"unwritten" law. Judges seek these principles out when trying a case and apply
the precedents to the facts to come up with a judgment. Common law is often
contrasted with civil law systems which require all laws to be written in a code
or written collection. Common law has been referred to as the "common sense of
the community, crystallized and formulated by our ancestors". Equity law
developed after common law to offset the rigid interpretations medieval English
judges were giving the common law. For hundreds of years, there were separate
courts in England and its dependents: one for common law and one for equity, and
the decisions of the latter, where they conflicted, prevailed. It is a matter of
legal debate whether or not common law and equity are now "fused." It is
certainly usual to speak of the "common law" as referring to the entire body of
English law, including common law and equity.
Common share
The basic share in a company. Typically, common shares have voting rights and a
pro rata right to any dividends declared. They differ from preferred shares
which, by definition, carry some kind of right or privilege above the common
shares (e.g. first to receive any dividends).
Company
A legal entity, allowed by legislation, which permits a group of people, as
shareholders, to create an organization, which can then focus on pursuing set
objectives, and which is empowered with legal rights which are usually only
reserved for individuals, such as to sue and be sued, own property, hire
employees or loan and borrow money. Also known as a "corporation." The primary
advantage of a company structure is that it provides the shareholders with a
right to participate in the profits (by dividends) without any personal
liability (the company absorbs the entire liability of the business).
Comparative negligence
A principle of tort law which looks at the negligence of the victim. If the
victim's negligence, when compared with the defendant's, is equal to or greater
in terms of contributing to the situation which caused the injury or damage,
such comparative negligence may lead to either a reduction of the award against
the defendant, proportionate to the contribution of the victim's negligence, or
even prevent an award altogether.
Condition precedent
A contractual condition that suspends the coming into effect of a contract
unless or until a certain event takes place. Many residential real estate
contracts have a condition precedent which states that the contract is not
binding until and unless the property is subjected to a professional inspection,
the results of which are satisfactory to the purchaser. Compare with "condition
subsequent".
Condition subsequent
A condition in a contract that causes the contract to become invalid if a
certain event occurs. This is different from a condition precedent. The
happening of a condition subsequent may invalidate a contract which is, until
that moment, fully valid and binding. In the case of a condition precedent, no
binding contract exists until the condition occurs. See also "condition
precedent".
Condonation
The obvious or implied forgiveness of a fault. Generally used in reference to
divorces which can be obtained by showing a fault of the other spouse, such as
adultery or cruelty. But a court will refuse to grant a divorce based on these
grounds if there has been "condonation". For example, if the "injured" spouse
resumes cohabitation with the "guilty" spouse after being informed of the
adultery of that spouse, and for a long period of time, the "injured" spouse may
be barred from divorce on the grounds of adultery because of "condonation".
Confession
A statement made by a person suspected or charged with a crime, that he (or she)
did, in fact, commit that crime.
Consensus
A result achieved through negotiation whereby a hybrid solution is arrived at
between parties to an issue, dispute or disagreement, comprised typically of
concessions made by all parties, and to which all parties then subscribe
unanimously as an acceptable resolution to the issue or disagreement.
Consensus ad idem
Latin term meaning an agreement, a meeting of the minds between the parties
where all understand the commitments made by each. This is a basic requirement
for each contract.
Consideration
Under common law, there can be no binding contract without consideration,
defined in an 1875 English decision as "some right, interest, profit or benefit
accruing to the one party, or some forbearance, detriment, loss or
responsibility given, suffered or undertaken by the other". Common law did not
allow gratuitous offers, those made without anything offered in exchange (such
as gifts), to be given the protection of contract law, so the criterium of
consideration was created. Consideration is not required in contracts made in
civil law systems, and many common law states have adopted laws which remove
consideration as a prerequisite of a valid contract.
Consign
To leave an item of property in the custody of another. An item can be consigned
to a transportation company, for example, for the purpose of transporting it
from one place to another. The consignee is the person who receives the property
and the consignor is the person who ships the property to the consignee.
Ownership does not pass in the act of consignment.
Conspiracy
An agreement between two or more persons to commit a criminal act. Those forming
the conspiracy are called conspirators.
Constitution
The basic law or laws of a nation or a state which sets out how that state will
be organized by deciding the powers and authorities of government between
different political units, and by stating the basic principles of society.
Constitutions are not necessarily written and may be based on aged customs and
conventions, as is the case in England and New Zealand (the USA, Canada and
Australia all have written constitutions).
Construction
The legal process of interpreting a phrase or document; of trying to find its
meaning. Whether it is a contract or a statute, there are times when a phrase
may be unclear or have several meanings. Then, either lawyers or judges must
attempt to interpret or "construct" the probable aim and purpose of the phrase,
by extrapolating from other parts of the document or, in the case of statutes,
referring to an interpretation law which gives legal construction guidelines.
Generally, there are two types of construction methods: literal (strict) or
liberal.
Constructive Dismissal
Under the employment law of some states, a fundamental violation of the rights
of an employee, by the employer, may be so severe that judges will consider it a
situation in which the employee would have the right to consider himself as
dismissed, even though, in fact, there has been no act of dismissal on the part
of the employer. For example, if an employer tries to force an employee to
accept a drastic demotion, the employee may have a case for constructive
dismissal and would be able to assume that the employment contract has been
ended and seek compensation from a court.
Constructive trust
A trust which a court declares or imposes onto participants of very specific
circumstances such as those giving rise to an action for unjust enrichment, and
notwithstanding the lack of any willing settlor to declare the trust (contrast
with express trusts and resulting trusts).
Contempt of court
An act of defiance of court authority or dignity. Contempt of court can be
direct (swearing at a judge or violence against a court officer) or constructive
(disobeying a court order). The punishment for contempt is a fine or a brief
stay in jail (i.e. overnight).
Contingency fee
A method of payment of legal fees "contingent" on winning a lawsuit and
represented by a percentage of the award. Lawyers generally receive compensation
by either a straight hourly rate (e.g. $400 an hour) or on contingency, agreeing
to be paid only if the claim is successful and taking a portion (e.g. one-third)
of any award that comes after the filing of the claim. Contingency fees allow
the client to receive legal services without putting any money down and allow
the lawyer to advertise "we don't get paid unless you do." Legal associations in
some countries prohibit contingency fee arrangements. In those countries that
allow them, they are very prevalent in personal injury cases.
Contract
An agreement between persons which obliges each party to do or not to do a
certain thing. The three requirements of a valid contract are an offer, an
acceptance of that offer, and, in common law countries, consideration.
Contract law
That body of law which regulates the enforcement of contracts. Contract law is
as old as civilization, since a legal system was created to support and to
facilitate trade. The English and French developed similar contract law systems,
both referring extensively to old Roman contract law principles such as
"consensus ad idem" or "caveat emptor". There are some minor differences on
points of detail such as the English law requirement that every contract contain
consideration. More and more states are changing their laws to eliminate
consideration as a prerequisite to a valid contract thus contributing to the
uniformity of law. Contract law is the basis of all commercial dealings from
buying a movie ticket to trading on the stock market.
Contributory negligence
The negligence of a person which, while not being the primary cause of a tort,
nevertheless combined with the act or omission of the primary defendant to cause
the tort, and without which the tort would not have occurred.
Conversion
The act of assuming and exercising right of ownership over personal property
belonging to another, altering its condition or excluding the real owner's
rights. Common law allows for an owner of property to sue for damages against a
defendant who came across the property and who, rather than return the property,
"converts" that property to his own use or retains possession of the property or
otherwise interferes with the property. The innocence of the defendant who took
the property is not an issue. It is the conversion that gives rise to the cause
of action. See also "trover" and "detinue".
Conveyance
A written document transferring property from one person to another. In real
estate law, the conveyance usually refers to the actual document which transfers
(conveys) ownership, between persons living (i.e. other than by will), or which
charges the land with another's interest, such as a mortgage.
Conviction
The formal decision of a criminal trial which finds the accused guilty. It is
the finding of a judge or jury, on behalf of the state, that a person has,
beyond reasonable doubt, committed the crime for which he, or she, has been
accused. It is the ultimate goal of the prosecution and the result resisted by
the defense. Once convicted, an accused may then be sentenced.
Coparcenary
An estate in which all the heirs by descent are treated as one heir, having one
estate.
Copyright
The right of literary property protected by law. The holder of the copyright is
invested in the sole right to reproduce, publish, and sell the artistic or
literary production. Many countries have expanded the definition of a "literary
work" to include computer programs or other electronically stored information.
Coroner
A public official who holds an inquiry into violent or suspicious deaths. A
coroner has the power to summon people to an inquest.
Corporal punishment
A punishment which involves the infliction of pain on, or harm to the body for
some violation of conduct. A fine or imprisonment is not considered to be
corporal punishment (in the latter case, although the body is confined, no
punishment is inflicted upon the body). The death penalty is the most drastic
form of corporal punishment and is also called capital punishment. Spanking,
whipping, or bodily mutilation inflicted as punishment are forms of corporal
punishment
Corporate secretary
Officer of a corporation responsible for the official documents of the
corporation such as the official seal, records of shares issued, and minutes of
all board or committee meetings.
Corporation
A legal entity (or "company"), allowed by legislation, which permits a group of
people, as shareholders (for-profit companies) or members (non-profit
companies), to create an organization, which then focuses on pursuing set
objectives. It is legally an entity empowered with legal rights which are
usually only reserved for individuals, such as the right to sue and be sued, to
own property, hire employees, or loan and borrow money. The primary advantage of
for-profit corporations is that it provides its shareholders with a right to
participate in the profits (by dividends) without any personal liability,
because the company or corporation absorbs the entire liability.
Costs
Generally, a financial payment made to the successful party to a lawsuit,
recoverable from the losing party. A person condemned to "costs" has to pay all
the court costs, such as the fees for bringing the action, witness fees and
other fees paid out by the other side in bringing the action to justice. A court
can also condemn a losing party to "special costs" but this is considered
punitive as it would include the other side's lawyer bill. The rule in most
places is that "costs follows the event" which means that the loser pays. In
most states, the court has the final say on costs and may decide not to make an
order on costs.
Council
A formal group of experts brought together on a regular basis to debate matters
within that sphere of expertise, and with advisory powers to government. It can
be contrasted with a commission which, although also a body of experts, is
typically given regulatory powers in addition to a role as advisor to the
government.
Counsel
Legal advice; a term also used to refer to the lawyers in a case.
Court martial
A military court set up to try and punish offenses by members of the armed
forces.
Court of admiralty
Archaic term used to denote the court which has the right to hear shipping,
ocean and sea legal cases. Also known as "maritime law".
Covenant
A written document in which signatories either commit themselves to do a certain
thing, to not do a certain thing or in which they agree on a certain set of
facts. They are very common in real property dealings and are used to restrict
land use such as amongst shopping mall tenants or for the purpose of preserving
heritage property.
Creditor
A person to whom money, goods or services are owed by the debtor.
Crime
An act or omission prohibited by criminal law. The acts are defined by each
state, setting out a limited series of acts (crimes) which are prohibited and
punishing the commission of these acts by a fine, imprisonment or some other
form of punishment. In exceptional cases, an omission to act can constitute a
crime, such as failing to give assistance to a person in peril or failing to
report a case of child abuse.
Criminal conversation
Synonymous with adultery. In old English law, this was a claim for damages the
husband could institute against the adulterer. Archaically, "intercourse" and
"conversation" were synonymous.
Criminal law
That body of the law that deals with conduct considered so harmful to society as
a whole that it is prohibited by statute, prosecuted and punished by the
government.
Cross-examination
Each party may also question the other's witness(es). This is called a
"cross-examination". Considerable more latitude is allowed in cross-examination
than in questioning one's own witnesses (called an "examination-in-chief"). For
example, one cannot ask leading questions of one's own witness but one can do so
in cross-examination of the other party's witnesses.
Cuius est solum, ejus est usque ad caelum et ad inferos
Latin: "who owns the land, owns down to the center of the earth and up to the
heavens". A principle of land ownership which has been greatly tempered by case
law limiting ownership upwards to the extent necessary to maintain structures.
Otherwise, airplanes would trespass incessantly.
Culpa lata
Latin, literally "gross negligence". It is more than simple negligence and
includes any action or an omission in reckless disregard of the consequences to
the safety or property of another.
Curtilage
An archaic term meaning the yard surrounding a residence or dwelling house which
is reserved for or used by the occupants for their enjoyment or work. Curtilage
may or may not be enclosed by fencing and includes any outhouses such as
stand-alone garages or workshops. It is a term sometimes used in a search
warrant which calls for a search of the residence and curtilage of a particular
person.
Custody
Charge and control of a child, including the right to make all major decisions
such as education, religious upbringing, training, health, and welfare. Custody,
without qualification, usually refers to a combination of physical custody and
legal custody. See also, "joint custody", "split custody" and "divided custody".
Cy-près
Literally, "As near as may be": a technical word used in the law of trusts or of
wills. Refers to a power that the courts have to construct or interpret a will
or a trust document "as near as may be" to the actual intentions of the
signatory, rather than void the document because a literal construction would
give the document illegal, impracticable or impossible effect
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