Legal Dictionary C
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.”
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.
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”.
Latin: let him beware. A formal warning.
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.
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.
Latin “all things being equal or unchanged”.
An agreement to finance another’s lawsuit in exchange for a portion of the judicial award.
A person who has never voluntarily had sexual intercourse outside of marriage, such as unmarried virgins.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
An amendment to an existing will. The codicil changes only the items mentioned in it, not the entire will.
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.
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).
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.
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.
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”).
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.
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).
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).
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.
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”.
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”.
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”.
A statement made by a person suspected or charged with a crime, that he (or she) did, in fact, commit that crime.
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.
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.
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.
An agreement between two or more persons to commit a criminal act. Those forming the conspiracy are called conspirators.
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).
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.
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.
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).
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.
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.
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.
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.
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”.
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.
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.
An estate in which all the heirs by descent are treated as one heir, having one estate.
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.
A public official who holds an inquiry into violent or suspicious deaths. A coroner has the power to summon people to an inquest.
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
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.
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.
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.
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.
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”.
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.
A person to whom money, goods or services are owed by the debtor.
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.
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.
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.
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.
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.
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.
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”.
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.