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a reasonable apprehension of
bodily or mental harm. [Cases: Divorce (.:::>27.]
mental cruelty. (1898) As a ground for divorce, one
spouse's course of conduct (not involving actual
violence) that creates such anguish that it endangers
the life, physical health, or mental health ofthe other
spouse. See EMOTIONAL DISTRESS. [Cases: Divorce
(;:::::>27.]
physical cruelty. (1874) As a ground for divorce, actual
personal violence committed by one spouse against
the other. [Cases: Divorce (;:::::>27(3, 6).]
cruelty to a child. See child abuse under ABUSE.
cruelty to children. See child abuse under ABUSE.
Crummey power. The right of a beneficiary of a
Crummey trust to withdraw gifts made to the trust up
to a maximum amount (often the lesser of the annual
exclusion or the value ofthe gift made to the trust) for
a certain period after the gift is made. The precise
characteristics ofa Crummey power are established by
the settlor ofa Crummey trust. Typically, the power is
exercisable for 30 days after the gift is made and permits
withdrawals up to $5,000 or 5% ofthe value ofthe trust.
A beneficiary may allow the power to lapse without
making any demand for distribution. See Crummey
trust under TRUST; annual exclusion under EXCLUSION.
[Cases: Trusts (:::;)270.J
Crummey trust. See TRUST.
cry de pais (kn da pay). [Law French] Hist. The cry ofthe
country. The hue and cry after an offender, as raised
by the country (I.e., the people). Also spelled cri de
pais. See HUE AND CRY (1).
cryer. See CRIER.
435
CSAAS. abbr. CHILD-SEXUAL-ABUSE-ACCOMMODATION
SYNDROME.
CSE agency. abbr. CHILD-SUPPORT-ENFORCEMENT
AGENCY.
CSREES. abbr. COOPERATIVE STATE RESEARCH, EDUCA
TION, AND EXTENSION SERVICE.
CSV. See cash surrender value under VALUE (2).
c.t.a. abbr. See administration cum testamento annexo
under ADMINISTRATION.
Ct. Cl. abbr. Court ofClaims. See UNITED STATES COURT
OF FEDERAL CLAIMS.
cucking stool. See CASTIGATORY.
cui ante divortium (kr [or kWI or kwee] an-tee d<l-vor
shee-<lm). [Law Latin "to whom before divorce"] Hist.
A writ of entry enabling a divorced woman to recover
land that she had held in fee but that her husband had
sold without her permission during the marriage.
The name ofthis writ derives from the words within it:
cui ipsa ante divortium inter eos celebratum, contradi
cere non potuit ("whom she, before the divorce between
them, could not gainsay"). The writ was abolished in
1833. Also termed sur cui ante divortium.
Cui bono? [Latin] For whose advantage?; Who benefits?
-The exclamation may be used to ask who benefited
from the results of a crime, usu. to cast suspicion
without offering evidence of guilt. Despite the literal
meaning, the term is more often used to mean "what's
the good ofit?" or "what benefits are there?"
cui in vita (kI [or kWI or kwee] in-vI-ta). [Law Latin
"to whom in the life"] Hist. A writ of entry enabling
a woman to recover land that she had held in fee but
that her deceased husband had sold without her per
mission. -It is so called from the words ofthe writ: cui
ipsa in vita sua contradicere non poluit ("whom she, in
his lifetime, could not gainsay"). Also termed sur
cui in vita.
"Cui in vita, is a writ of entry, which a Widow hath against
him, to whom her Husband alienated her Lands or Tene
ments in his life time, which must specifie, that During his
fife, she could not withstand it." Thomas Blount, Nomo
Lexicon: A Law-Dictionary (1670).
cujus contrarium est verum (k[y]oo-jas kan-trair-ee-am
est veer-dm). [Latin] Hist.lhe contrary ofwhich is the
truth.
cujus haeredibus maxime prospicitur (k[yloo-j<ls
h<l-red-i-b<ls mak-s<l-mee proh-spis-i-t<lr). [Latin] Hist.
Whose heirs are chiefly regarded.
"Cujus haeredibus maxime prospicitur .... This is a rule
of construction to be attended to in ascertaining from the
terms of a destination, in whom the fee of a property is
vested, the ordinary rule being, that he is the fiar whose
heirs are preferred. Thus, a conveyance to 'A and Bjointly,
and the heirs of B,' gives A merely ajoint right of liferent,
and gives B the fee. Under such a destination, B is so abso
lutely the fiar that his rights cannot be impaired by any
acts, even onerous, of A, who is held, as we have said, to
be a liferenter." John Trayner, Trayner's Latin Maxims 121
(4th ed. 1894). culpa levis in concreto
culpa (kill-pa). [Latin] 1. Roman & civil law. Fault,
neglect, or negligence; unintentional wrong. See NEGLI
GENCE. Cf. DlLIGENTIA; CASUS (1); DOLUS (1).2. Roman
law. Conduct that made a party to a contract, or quasi
contract, liable to the other party.
lata culpa (lay-ta bl-p<l). [Latin "grave fault"] Gross
negligence amounting to bad faith (dolus). -This
phrase occurs most commonly in bailment law and
in the law ofthe transport ofpersons. -Also termed
culpa lata. See gross negligence under NEGLIGENCE.
levis culpa (lee-vis kal-p<l). [Latin "slight fault"] 1.
Ordinary negligence. 2. Failure to act as the ideal
paterfamilias should. -Also termed culpa levis;
culpa levis in concreto. See ordinary negligence under
NEGLIGE::-!CE.
levissima culpa (I<l-vis-<l-m<l hl-pa). [Latin "the slight
est fault"] Slight negligence. -Also termed culpa
levissima. See slight negligence under NEGLIGENCE.
culpabilis (kal-pay-ba-lis), adj. [Latin] Hist. Guilty.
culpability (bl-p<l-bil-<l-tee), n. Blameworthiness; the
quality ofbeing culpable. _ Except in cases ofabsolute
liability, criminal culpability requires a showing that
the person acted purposely, knowingly, recklessly, or
negligently with respect to each material element ofthe
offense. See Model Penal Code 2.02. [Cases: Criminal
LawC=:>19.]
"The concept of culpability is used as a reference point to
assess the defendant's guilt and punishment even though,
in the two contexts, culpability denotes different aspects of
the defendant and the murder. At the guilt phase, culpabil
ity is most often used to refer to the state of mind that the
defendant must possess. Also at the gUilt phase, culpabil
ity may reflect a broader judgment about the defendant:
when he is culpable for his conduct, it means that he is
blameworthy and deserves punishment. At the punishment
phase, the concept of culpability stands as the benchmark
for when the death penalty is an appropriate punishment."
Phyllis L Crocker, Concepts ofCulpability and Deathworthi
ness, 66 Fordham L Rev. 21, 35-36 (1997).
culpable (hl-p<l-bal), adj. (I4c) 1. Guilty; blameworthy.
2. Involving the breach ofa duty.
culpable accident. See ACCIDENT.
culpable homicide. 1. See HOMICIDE. 2. See MANSLAUGH
TER.
culpable intoxication. See voluntary intoxication under
INTOXICATION,
culpable neglect. See NEGLECT.
culpable negligence. See NEGLIGENCE.
culpa-in-contrahendo doctrine. [Law Latin "fault in
contracting"] The principle that parties must act in
good faith during preliminary contract negotiations;
esp., the principle that a breach by the offeror after the
offeree has begun performance ofa unilateral contract
and is stopped by the offeror before completion will
give rise to liability in tort. [Cases: Torts (;:::::433.J
culpa lata. See lata culpa under CULPA.
culpa levis. See levis culpa under CULPA.
culpa levis in concreto. See levis culpa under CULPA.
436 culpa levissima
culpa levissima. See levissima culpa under CULPA.
culprit. (17c) 1. A person accused or charged with the
commission of a crime. 2. A person who is guilty of
a crime . Culprit may be a running together of cui,
shortened from the Latin culpabilis ("guilty"), and prit,
from Old French prest ("ready"), two words formerly
used to orally plead at the outset ofa criminal case.
"When the prisoner hath thus pleaded not guilty. non clilpa
bilis . .. the clerk of the assise, or clerk of the arraigns, on
behalf of the crown replies, that the prisoner is guilty, and
that he is ready to prove him so. This is done by two mono
syllables in the same spirit of abbreviation, 'cli/. prJt.' which
signifies first that the prisoner is guilty, (cui. culpable, or
clilpabilis) and then that the king is ready to prove him
50; pdt, praesto Slim, or paratus verificare, ' .. How our
courts came to express a matter of this importance in so
odd and obscure a manner ... can hardly be pronounced
with certainty. It may perhaps, however, be accounted for
by supposing that these were at first short notes, to help
the memory of the clerk, and remind him what he was to
reply; or else it was the short method of taking down in
court, upon the minutes, the replication and averment;
'cui, prft'; which afterwards the ignorance of succeeding
clerks adopted for the very words to be by them spoken.
But however it may have arisen, the joining of issue ...
seems to be clearly the meaning of this obscure expres
sion; which has puzzled our most ingenious etymologists,
and is commonly understood as ifthe clerk ofthe arraigns,
immediately on plea pleaded, had fixed an opprobrious
name on the prisoner, by asking him, 'w/pri!, how wilt thou
be tried?'" 4 William Blackstone, Commentaries on the Laws
of England 333-34 (1769),
cultura (bl-t[y]oor-el). [Law Latin] Hist. A piece of
tillable land; tillage.
cultural agreement. Int'I law. A bilateral or multilateral
agreement between nations for the purpose offurther
ing cultural or intellectual relations.
cultural defense. See DEFENSE (1).
cultural property. Int'llaw. Movable and immovable
property that has cultural significance, whether in the
nature ofantiquities and monuments of a classical age
or important modern items of fine arts, decorative
arts, and architecture . Some writers prefer the term
cultural heritage, which more broadly includes intangi
ble cultural things such as folklore, crafts, and skills.
culvert age (kal-var-tij), n. Hist. 1. The status of villein
age. 2. The condition ofbeing reduced to villeinage or
serfdom by forfeiture and degradation.
cum astrictis multuris (kelm a-strik-tis m<ll-t[y]oor-is).
[Law Latin] Hist. With defined payments for grinding;
with astricted multures . The phrase appeared in ref
erence to portions of grain that the landholder was
bound to pay a certain mill in exchange for grinding
the remainder ofthe grain. See MOLITURAE.
cum aucupationibus, venationibus, et piscationibus
(k<lm awk-p-pay-shee-oh-n<l-bas, vi-nay-shee-oh-nd
b<ls et pi-skay-shee-oh-nCl-bCls). [Latin] Scots law. With
fowlings, huntings, and fishings . The phrase was part
of a clause granting the legal right to hunt and fish on
the conveyed land if the right was accompanied by
actual possession ofthe land for a specific period.
cum beneficio inventarii. See BENEFICIUM INVENTARII. cum communi pastura (kdm kd-myoo-m pas-chelr-a).
[Law Latin] Hist. With common pasturage. 'Ihis
phrase granted a servitude of pasture, not a right of
common, on property.
cum curiis earumque exitibus (kam kyoor-ee-is ee-Cl
ram-kwee ek-sit-i-bas). [Law Latin] Hist. With courts,
and the results or profits of the same. The phrase
appeared in reference to the right of the Baron courts
to any ofthose courts' profits, as distinguished from the
obligation of the King's courts to turn over all profits
to the King.
cum curiis et bloodwitis (kam kyoor-ee-is et bl<Jd-wi
tis). [Law Latin] Scots law. With the power of holding
courts and fining for blood . Property disposed ofcum
curiis et bloodwitis entitled the purchaser ofa barony to
cumulative jurisdiction over barony matters.
cum decimis inclusis et nunquam antea separatis (bm
des-<l-mis in-kloo-sis et nam-kwam an-tee-a sep-a
ray-tis). [Law Latin] Scots law. With the tithes included,
and never before separated . This phrase |
-a
ray-tis). [Law Latin] Scots law. With the tithes included,
and never before separated . This phrase exempted
conveyed land from the payment of tithes.
cum dividend. With dividend . Stocks purchased cum
dividend entitle the buyer to any pending declared divi
dends. Cf. EX DIVIDEND.
cum domibus, aedificiis (kam dom-a-bCls, ee-di-fish
ee-is). [Law Latin] Scots law. With houses, buildings.
These words in a conveyance included within the
conveyance every structure erected on the conveyed
land.
cum effectu (kam i-fek-t[y]oo). [Latin] Hist. With effect;
in effect.
"Prescription does not run against anyone .. , unless
he is able to act in defence of his right cum effectu , . , ,
Under the old feudal system the casualty of ward was not
incurred except where the vassal alienated his lands cllm
effectu. Thus, if the vassal was interdicted and disponed
without the consent of his interdictors, his conveyance
being reducible was not effectual, and the casualty was
not incurred," John Trayner, Trayner's Latin Maxims 127-28
(4th ed. 1894).
cum excessu moderaminis (kam ek-ses-[yJoo mod-Cl-ray
mCl-nis). [Law Latin] Scots law. In excess ofthe limits .
The phrase appeared in reference to the legal limits on
the use ofviolence as a means of self-defense.
cum fabrilibus, brasinis, et brueriis (kam fa-bril-Cl-bas,
bra-sl-nas, et broo-er-ee-is). [Law Latin] Scots law.
With forges, maltkilns, and breweries . A tenant was
restricted from building these structures on land unless
the tenant first obtained the superior's permission.
cum fossa etfurca (kam fOS-<l et f<Jr-k<l). [Law Latin] Hist.
With pit and gallows . In ancient charters, this phrase
granted Baron courts the right to try capital offenses
and to inflict capital punishment.
cum grano salis (k<lm gray-noh say-lis or kuum grah-noh
sah-lis). [Latin] With a grain ofsalt; with allowance for
exaggeration; with reservations.
cum herezeldis (bm her-Cl-zel-dis). [Latin] Scots law.
With herezelds; with the best things that move . The
phrase appeared in reference to a tenant's best horse,
cow, or other animal, when the animal was customarily
transferred to the landlord on the death ofthe tenant.
Cumis counsel. See COUNSEL.
cum libera et plena administratione (kdm lib-dr-d et
plee-na ad-min-a-stray-shee-oh-nee). [Law Latin] Scots
law. With full and free power of administration. -The
phrase appeared in reference to the powers that one
could grant to certain agents, such as attorneys.
cum libero exitu et introitu (kam Iib-.-r-a ek-si-t[y]oo
et in-troh-a-t[y)oo). [Law Latin) Hist. With free exit
and entry.
cum maritagio (k.-m mar-a-tay-jee-oh). [Law Latin] Scots
law. With the marriage portion. -'Ihe phrase appeared
in reference to the required payment to a superior upon
the marriage ofthe superior's ward.
cum molendinis et multuris (k.-m m.--Ien-di-nis et m;}l
ch.-r-is), [Law Latin] Scots law, With mills and multures.
Cf. MOLITURAE,
cum nota (k<lm noh-t<l), [Latin] Scots law. With a distin
gUishing mark. _ Ihe phrase appeared in reference to
otherwise inadmissible testimony that a judge could
allow after considering the testimony's merit or believ
ability.
cum omni causa (kam ahm-m kaw-z<l). [Latin] Roman
law, With every advantage derived from a given trans
action, such as a sale.
cum onere (bm on-.--ree), [Latin] With the burden.
An item acquired cum onere is taken subject to existing
burdens and charges.
cum onere debitorum defuncti (kdm on-ar-ee deb-i
tor-<lm di-f;mgk-tI), [Latin] Hist. With the burden of
the decedent's debts. _ The phrase appeared in refer
ence to an heir's position after entering a succession.
cum pertinentiis (kam par-ta-nen-shee-is). [Latin) With
the appurtenances. _ In a conveyance ofland, the con
veyance included not only everything belonging to the
land, but also rights incident to it.
cum piscariis (bm pis-kair-ee-is). [Law Latin] Scots
law. With fishings. -The phrase was used to convey
an express grant offishing rights without the necessity
ofalso possessing the right for a prescribed period. Cf.
CUM PISCATlONlBUS,
cum piscationibus (k<lm pis-kay-shee-oh-n<l-b<ls). [Law
Latin) Hist. With fishing or fisheries, _ The phrase was
used to convey the express grant offishing rights only
if the grant was accompanied by possession of the right
for a prescribed period. Cf, CUM PISCARIIS.
cum rights. With rights. _ A cum rights purchaser of
stock is entitled to rights that have been declared but
not distributed, such as the right to purchase additional
shares at a stated price, Also termed rights on.
cum satisfurore ipsopuniatur (k<lm sat-is fyuu-ror-ree
ip-soh pyoo-nee-ay-tar). [Latin] Hist. Since he is suf
ficiently punished by the insanity itself. -The phrase
appeared in reference to the principle that an insane person is not criminally responsible for his or her acts.
It was a forerunner to the modern insanity defense,
cum sua causa et labe (kam s[y]OO-d kaw-za et lay-bee).
[Latin] Hist. With its advantages and its defects.
cum suo onere (kam s[yJoo-oh on-;;r-ee). [Latin) Hist.
With its burden. _ The phrase appeared in reference
to a vassal's land encumbrances that the superior was
bound to accept upon the vassal's resignation,
cum testamento annexo (hm tes-t;;-men-toh <l-nek
soh). See administration cum testamento annexo under
ADMINISTRATION,
cum titulo (k;;m tich-[y]a-Ioh). [Law Latin] Hist, With
the title.
cumulatio criminum (kyoo-my.--Iay-shee-oh krim-a
n.-m). [Law Latin] Hist, The accumulation ofcrimes; the
charging ofmore than one crime in an indictment.
cumulative approach. See UNITY OF ART.
cumulative dividend. See DIVIDEND.
cumulative-effects doctrine. (1987) The rule that a
transaction affecting interstate commerce in a trivial
way may be taken together with other similar transac
tions to establish that the combined effect on interstate
commerce is not trivial and can therefore be regulated
under the Commerce Clause, [Cases: Commerce
7(2).]
cumulative error. See ERROR (2).
cumulative-error analysis. Appellate scrutiny of whether
all of the individual harmless errors made in a trial
had the cumulative effect of prejudicing the outcome.
_ Ifthey did, the harmless errors taken together may
amount to reversible error, [Cases: Appeal and Error
C=::> 1026; Federal Courts C=::>891.J
cumulative evidence. See EVIDENCE.
cumulative income bond. See income bond under BOND
(3),
cumulative legacy.!. See accumulative legacy under
LEGACY. 2. See additional legacy under LEGACY.
cumulatively harmful behavior. See HARMFUL BEHAV
IOR.
cumulative offense. See OFFENSE (1).
cumulative preference share. See cumulative preferred
stock under STOCK.
cumulative preferred stock. See STOCK,
cumulative punishment. See PUNISHMENT.
cumulative remedy. See REMEDY,
cumulative sentences. See consecutive sentences under
SENTENCE.
cumulative stock. See cumulative preferred stock under
STOCK.
cumulative supplement. See POCKET PART.
cumulative testimony. See TESTIMONY.
cumulative traverse. See TRAVERSE.
cumulative voting. See VOTING.
438 cumulative zoning
cumulative zoning. See ZONING.
cum virginitas vel castitas corrupta restitui non possU
(k;)m v<lr-jin-i-tas vel kas-ti-tas kd-r;)p-td ri-stich
[Y]OO-I). [Latin] Hist. & Scots law. Since virginity or
chastity once violated cannot be restored. -The phrase
was use to explain the basis for imposing severe pun
ishment for rape.
CUPOS. abbr. A cohabiting unmarried person of the
opposite sex. _ Although this term is intended to be
synonymous with "POSSLQ" (a person of the opposite
sex sharing living quarters), it is more literally precise
because it excludes married persons. See POSSLQ.
cur. abbr. CURIA (3).
cura (kyoor-d), n. [Latin] Roman law. A guardianship
that protects the interests of minors who are between
puberty and the age of25, or incapacitated persons. Cf.
TUTELA. PI. curae.
"Cura was a form of guardianship indicated by the neces
sities of the case, with respect to persons who, though sui
juris, were in need of protection. It was not regarded as a
substitute for patria potestas as tutela was.... It extended
to the person as well as the property, and in the latter
respect is much the same as in the case of the tutela of
infants." R.W. Leage, Roman Private Law 122 (C.H. Ziegler
ed., 2d ed. 1930).
cura furiosi (kyoor-d fyoor-ee-oh-sr). A guardianship
for an insane person who was mentally incapacitated.
"The cura furiosi empowered and bound the curator to
manage the property of the lunatic on the lunatic's behalf."
Rudolph Sohm, The Institutes: A Textbook ofthe History and
System of Roman Private Law 492 Uames Crawford Ledlie
trans., 3d ed. 1907).
cura minoris (kyoor-<J mi-nor-is). A form of guardian
ship for a minor under 25 whose capacity of action
was complete, but whose judgment might be defec
tive. PI. cum minorum.
cum prodigi (kyoor-d prah-d;)-jI). A form of guard
ianship for a spendthrift, usu. at the request of the
person's agnatic family.
"The cura prodigi differed from the cura furiosi in that the
prodigus, unlike the furiosus, was himself capable of per
forming any act by which he acquired a right or benefit. The
appointment of a curator, however, precluded the prodigus
from performing any act which operated to alienate
property or to subject him to a liability; any such act, in
order to be effectual, had to be concluded either by the
curator on behalf of the prodigus or by the prodigus with
the approval of the curator." Rudolph Sohm, The Institutes:
A Textbook ofthe History and System ofRoman Private Law
492 Uames Crawford Ledlie trans., 3d ed. 1907).
cura animarum (kyoor-d an-d-mair-dm). [Law Latin]
Hist. Eccles. law. The cure ofsouls; the care ofsouls.
cur. adv. vult. abbr. CURIA ADVISARI VULT.
curate (kyuur-it). Eccles. law. 1. A person in charge ofa
parish; a pastor. 2. A member ofthe clergy who receives
a stipend or salary to assist a vicar, rector, or pastor; an
assistant to a parish priest. [Cases: Religious Societies
C='27.J
curatio (kya-ray-shee-oh), n. [ff. Latin cura "care"]
Roman law. 1. The power or duty ofmanaging the inter
ests of a youth or incapacitated person. 2. The office of a curator. See CURA. PI. curationes (kY<J-ray-shee
oh-neez).
curative admissibility. See ADMISSIBILITY.
curative-admissibility doctrine. (1975) The rule that
otherwise inadmissible evidence will be admitted to
rebut inadmissible evidence placed before the fact
finder by the adverse party. -Ihe doctrine applies
when a motion to strike cannot cure the prejudice
created by the adverse party. [Cases: Criminal Law
C='396; Evidence C=' 155.]
curative instruction. See JURY INSTRUCTION.
curative statute. See STATUTE.
curator (kyuur-d-tdr or kyuur-ay-taf or kyuu-ray-tor), n.
1. Roman law. (itat). A person who manages the affairs
of another; a guardian. PI. curatores (kYdr-;:)-tor-eez).
SeeCURA.
"Although the control of a Tutor ceased when the Pupiflus
had attained manhood and become invested with his politi
cal rights, it must have frequently happened that the youth
would be involved in bUSiness which he would be incapable
of regulating with advantage at that early age, and would,
at all events, if wealthy, be open to fraud and imposi
tion. Hence arose the practice of nominating a Curator,
whose authority extended to the twenty-fifth year of the
ward, but who did not necessarily, like a Tutor, exercise a
general superintendence, being frequently nominated for
one special purpose .... Curatores were appointed also to
man |
utor, exercise a
general superintendence, being frequently nominated for
one special purpose .... Curatores were appointed also to
manage the affairs of persons beyond the age of twenty
five, who, in consequence of being insane, deaf and dumb,
or affected with some incurable disease, were incapable
of attending to their own concerns." William Ramsay, A
Manual of Roman Antiquities 299-300 (Rodolfo Lanciani
ed., 15th ed. 1894).
curator ad litem (kyuu-ray-tor ad h-t<Jm). A curator
appointed by a court to represent the interests of a
youth, or an incapacitated or unborn person, during
the proceedings before the court. [Cases: Infants
76.]
curator bonis (kyuu-ray-tor boh-nis). [Latin "a
guardian of property"] 1. Roman law. A guardian
appointed to care for property, esp. for the benefit
of creditors. 2. Scots law. A person appOinted by a
court to manage an estate, esp. of a minor or an insane
person. -Also termed curator ad bona.
curator bonorum (kyuu-ray-tor ba-nor-<lm). A person
appointed by a court to administer the estate of an
insolvent person.
2. A temporary guardian or conservator appointed by
a court to care for the property or person of a minor
or incapacitated person. [Cases: Guardian and Ward
C='13(6).]
interim curator. Archaic. A person appointed by a
justice of the peace to hold a felon's property until a
royal administrator could be assigned the task.
3. Civil law. A guardian who manages the estate of a
minor, an absent person, or an incapacitated person.
PI. curatores. [Cases: Absentees C=5; Guardian and
Ward
curator ad hoc (kyuu-ray-tor ad hok). A court
appointed curator who manages a Single matter or
439 Curia Regis
transaction. See special guardian under GUARDIAN.
[Cases: Absentees (::=>5; Guardian and Ward (::=>37.]
curator rei (kyuu-ray-tor ree-I). [Latin] Scots law. A
guardian of an estate, as distinguished from a tutor,
who is a guardian ofa person. -Also termed curator
daturrei.
4. Parliamentary law. An officer charged with custody
of an organization's valuable property.
curator ad bona (kyuu-ray-tor ad boh-n<:l). See curator
bonis under CURATOR (1).
curatorship. (16c) The office ofa curator or guardian.
dative curatorship. See dative tutorship under TUTOR
SHIP.
curatory, n. Scots law. The management by a curator of
the affairs ofsomeone incapable, esp. consent to the legal
acts ofa minor to cure the minor's legal incapacity.
curatrix (kyuu-ray-triks). Archaic. A female curator.
curb. See TRADING CURB.
cure, n. 1. A seller's right under the VCC to correct a non
conforming delivery ofgoods, usu. within the contract
period. [Cases: Sales (::=> 166(1).]2. Maritime law. Res
toration to health after disease or injury; medical atten
tion and nursing care during a period ofconvalescence.
See MAINTENANCE AND CURE; MAXIMUM CURE. [Cases:
Seamen (::=> 11.] -curative, adj.
cure, vb. (14c) To remove legal defects or correct legal
errors. For example, curing title involves removing
defects from title to unmarketable land so that title
becomes marketable. [Cases: Vendor and Purchaser
(::=>144.]
cure by verdict. See AIDER BY VERDICT.
curfew (k<:lr-fyoo). 1. Hist. A law requiring that all fires
be extinguished at a certain time in the evening, usu.
announced by the ringing of a bell. 2. A regulation
that forbids people (or certain classes of them, such
as minors) from being outdoors or in vehicles during
specified hours. [Cases: Infants (::=> 13.]
curia (kyoor-ee-<:l), n. [Latin] 1. Roman law. One of 30
divisions (three tribes of ten curiae) into which the
Roman people were said to be divided by Romulus. See
comitia curiata under COMITIA. 2. Roman law. A legis
lative gathering, esp. ofthe Roman Senate; the building
used for the gathering. 3. Hist. A judicial tribunal held
in the sovereign's palace; a royal court. -Abbr. cur. 4.
Hist. A court. 5. The papal court, including its func
tionaries and officials.
''The word curia in classical Latin is used in a number of
ways. Apparently, it meant at first a subdivision of the
people. It was also used, by a transfer which is not too
clear, for the building in which the Roman Senate met. By
an almost inevitable development it became the word for
the Senate itself and later the ordinary designation for the
Council in municipalities of the later Empire .... How much
of this was still recalled in Medieval times, we cannot tell,
but ... in the early Middle Ages, curia was a common word
to describe both the groups of men who generally were
found in attendance on pope, emperor, king or prince,
and the groups which were summoned by him to give him
counsel. The curia in the latter sense, however, was not really a casual group of persons, summoned spasmodi
cally to advise the king or any other person. It had come
to be in Feudal Europe the ordinary Latin word for the
general meeting of the lord's vassals, which itself grew
out of the Germanic mot or thing. ... The Curia of the
king was in theory a larger and more important example
of the same kind of assemblage." Max Radin, Handbook of
AngloAmerican Legal History 46-48 (1936).
curia admiralitatis (kyoor-ee-<:l ad-m<:l-ral-<:l-tay-tis).
[Law Latin] See HIGH COURT OF ADMIRALTY.
curia advisari vult (kyoor-ee-<:l ad-v<:l-sair-I valt). [Latin]
The court will be advised; the court will consider. This
phrase signaled a court's decision to delay judgment
pending further consideration. In England, the phrase
is still used in all Court ofAppeal decisions when the
judgment is reserved; that is, not delivered after the
hearing. -Abbr. cur. adv. vult; c.a.v.
curia baronis (kyoor-ee-<:l b<:l-roh-nis). [Law Latin] See
COURT BARON.
curia burgi (kyoor-ee-<:l bar-jI). See COURT OF HUSTINGS.
curia cancellaria. See CANCELLARIA.
curia Christianitatis (kyoor-ee-<:l kris-tee-an-<:l-tay-tis).
[Law Latin "a court Christian"] Hist. An ecclesiastical
court. See ecclesiastical court under COURT.
curia claudenda (kyoor-ee-<:l klaw-den-d<:l). See DE
CURIA CLAUDENDA.
curia comitatus (kyoor-ee-<:l kom-<:l-tay-t<:ls). [Law Latin]
See COUNTY COURT.
curia domini (kyoor-ee-<:l dom-<:l-nI). [Law Latin "lord's
court"] Hist. A lord's house or hall, used as a meeting
place for tenants during court sessions.
curia magna (kyoor-ee-<:l mag-n<:l). [Law Latin "great
court"] Hist. An ancient name for Parliament.
curia paiatii (kyoor-ee-<:l p<:l-lay-shee-I). [Law Latin
"court ofthe palace"] PALACE COURT.
Curia Regis (kyoor-ee-<:l ree-jis). [Latin "king's court"]
Hist. (sometimes not cap.) 1. The chief court in early
Norman England, established by William the Con
queror, The curia regis was a body of advisers who
traveled with the king, advising him on political matters
and acting as an appellate court in important or com
plicated cases. Over time the functions ofthe curia regis
became exclusively judicial in nature. -Also termed
King's Court; aula regis. -Abbr. C.R.
"[W]e are tempted to use terms which are more precise
than those that were current in the twelfth century. In par
ticular we are wont to speak of the Curia Regis without
remembering that the definite article is not in our docu
ments. Any court held in the king's name by the king's
delegates is Curia Regis. Thus the institution of what in
course of time will be a new tribunal, a Court of King's
Bench or a Court of Common Pleas, may be found in some
small rearrangement, some petty technical change, which
at the moment passes unnoticed." 1 Frederick Pollock &
Frederic W. Maitland, The History ofEnglish Law Before the
Time ofEdward 1153 (2d ed. 1898).
"[A small] body collects round the king, a body of admin
istrators selected from the ranks of the baronage and of
the clergy. At its head stands the chiefjusticiar, the king's
right-hand man, his viceroy when the king is, as often he
is, in his foreign dominions.... This body when it sits for
curing title 440
financial purposes constitutes the Exchequer (Scaccarium},
so called from the chequered cloth which lies on the table,
convenient for the counting of money. Also it forms a
council and court of law for the king: it is a curia RegiS,
the king's court, and its members are justitiarii, justiciars
or justices of this court. Under Henry I they are sent into
the counties to collect taxes and to hold pleas; they are
then justitiarii errantes, justitiarii itinerantes. During the
whole period the term curia Regis seems loosely used to
cover both the sessions of this permanent body and the
assembly of the tenants in chief; the former may perhaps
be regarded as a standing committee of the latter." F.W.
Maitland, The Constitutional History of England 63-64
(1908; repro 1955).
"The focal point of royal government was the curia regis
(king's court), the body of adVisers and courtiers who
attended the king and supervised the administration of
the realm. It was not a specific court of law, any more
than the eyre was, but rather was the descendant of the
Anglo-Saxon witengemot (meeting with the witan, or royal
advisers) and the ancestor of the king's council which
later subdivided into parliament and the privy counciL"
J.H. Baker, An Introduaion fa English Legal History 20 (3d
ed.1990).
2. The sessions of this court.
curing title. The act of removing defects from a land title
to make it marketable.
currency. (17c) An item (such as a coin, government note,
or banknote) that circulates as a medium ofexchange.
See LEGAL TENDER. [Cases: United States
blocked currency. Currency or bank deposits that, by
government restriction, may be used only within the
country where they are located.
fractional currency. Paper money worth less than one
dollar; esp., the currency issued by the federal govern
ment from l863 to l876.
hard currency. Currency backed by reserves, esp. gold
and silver reserves.
national currency. Currency approved by a national
government and placed in circulation as a medium of
exchange. See LEGAL TE:-IDER. [Cases: United States
G-~34.)
postal currency. Hist. A fractional currency bearing a
facsimile ofpostage stamps. -The United States Post
Office issued these miniature notes in the 19th century
until 1876. They were exchangeable for postage
stamps, accepted for payments to the government in
amounts up to $5, and could be exchanged for federal
currency in multiples of $5. They were also used as
small change when people hoarded coins during the
Civil War. -Also termed postage currency.
soft currency. Currency not backed by reserves and
therefore subject to sharp fluctuations in value.
United States currency. Currency issued under the
authority of the federal government.
currency arbitrage. See ARBITRAGE.
currency market. See foreign-exchange market under
MARKET.
currency swap. See SWAP. currency-transaction report. A deposit report that must
be signed by a person who deposits $10,000 or more in a
bank account. -The report is on blue paper, much like
the skin color ofthe cartoon characters called Smurfs,
so it is also termed (in slang) a smurf.
current account. See ACCOUNT.
current asset. See ASSET.
current-cost accounting. (1938) A method ofmeasuring
assets in terms ofreplacement cost. -This approach
accounts for inflation by recognizing price changes in
a company's assets and restating the assets in terms of
their current cost.
currente termino (k;3r-ren-tee t~r-mi-noh). [Law Latin)
Scots law. During the currency of the term. -The
phrase might be used in leases.
current expense. See operating expense under EXPENSE.
current funds. See FUNDS (2).
current income. See INCOME.
current liability. 1. See short-term debt under DEBT. 2.
See LIABILITY.
current market value. (18c) The price at which an asset
can be sold within the present accounting period.
current money. See MONEY.
current obligation. See OBLIGATION.
current revenue. See current income under INCOME.
current wages. See WAGE.
current yield. See YIELD.
currit quattuorpedibus (k~r-it kwah-too-;3r ped-;3-bas).
[Law Latin] It runs on four |
k~r-it kwah-too-;3r ped-;3-bas).
[Law Latin] It runs on four feet; it runs on all fours. See
ON ALL FOURS.
cursitor (k~r-s;3-t;3r). Hist. A chancery clerk responsible
for making out original writs. -Cursitor derives from
the writs de cursu that the clerks wrote out.
cursitor baron. Hist. An officer of the Court of Exche
quer with administrative, but not judicial, duties.
Over time, as the Barons of the Exchequer took on
more judicial rather than fiscal duties, the need for
someone with financial experience became apparent.
So in 1610 a cursitor baron was appointed to sit along
side the judges. The office was abolished in 1856.
cursor (k;lr-s;3r). Eccles. law. An inferior officer of the
papal court.
curtesy (k;Jr-t;3-see). (16c) At common law, a husband's
right, upon his wife's death, to a life estate in the land
that his wife owned during their marriage, assuming
that a child was born alive to the couple. -This right
has been largely abolished. Traditionally, the full phrase
was estate by the curtesy ofEngland (or Scotland).
Also spelled (esp. in Scots law) courtesy. Also termed
tenancy by the curtesy. Cf. DOWER. [Cases: Dower and
Curtesy (;= 1.]
curtesy consummate (br-t;3-see k<)l1-s;)m-it or kahn
s;3-mit). The interest the husband has in his wife's
estate after her death.
441
curtesy initiate (kar-ta-see i-nish-ee-it). The interest
the husband has in his wife's estate after the birth
of issue capable of inheriting, and before the death
ofthe wife.
curtilage (br-ta-Iij). (14c) The land or yard adjoining a
house, usu. within an enclosure . Under the Fourth
Amendment, the curtilage is an area usu. protected
from warrantless searches. -Also termed (in Latin)
curtillium. See OPEN-FIELDS DOCTRINE. Cf. MESSUAGE.
[Cases: Searches and Seizures (;:::=>27.]
curtiles terrae (kar-tI-leez ter-ee). [Law Latin]See COURT
LANDS.
curtillium (br-til-ee-<lm). [Law Latin] See CURTILAGE.
cushion. See EQUITY (7).
cushion bond. See BOND (3).
custode admittendo (b-stoh-dee ad-mi-ten-doh). See
DF. ClJSTODE ADMITTENDO.
custode amovendo (ka-stoh-dee ay-moh-ven-doh). See
DF. CUSTODE AMOVENDO.
custodes libertatis angliae auctoritate parliamenti
(kd-stoh-deez lib-ar-tay-tis ang-glee-ee awk-tor-a
tay-tee parl-[y]d-men-tI). [Latin] Hist. Guardians of the
liberty of England by the authority ofparliament. _ The
style of all writs and judicial process that issued during
the period between the execution ofCharles I (January
1649) and the proclamation of Oliver Cromwell as Lord
Protector (December 1653).
custodes pads (k<l-stoh-deez pay-sis). [Latin] Hist. Guard
ians (or conservators) of the peace. See PEACE OFFICER.
custodiae causa (b-stoh-dee-ee kaw-zd). [Latin] Scots
law. For keeping; for preserving. The phrase described
a bailment's purpose.
custodial account. See ACCOUNT.
custodia legis. See IN CUSTODIA LEGIS.
custodial interference. Family law. 1. The abduction of
a child or the inducement ofa minor child to leave the
parent legally entitled to custody or not to return to the
parent entitled to legal custody. [Cases: Child Custody
C:::::c57, 569, 969; Kidnapping (;:::=>23.]2. Any hindrance
to a parent's rightful access to a child . The Restate
ment (Second) of Torts 700 (1977) provides for an
action in tort by the parent entitled to custody against
one who, with knowledge that the parent does not
consent, either takes the child or compels or induces
the child to leave or not to return to the parent legally
entitled to custody. [Cases: Child Custody (;:::=>969.]
Also termed custody interference.
custodial interrogation. See INTERROGATION.
custodial parent. See PARENT.
custodial responsibility. Family law. Physical child
custody and supervision, usu. including overnight
responsibility for the child . This term encompasses
visitation and sole, joint, and shared custody. Both
parents share responsibility for the child regardless
of the amount of time they spend with the child. See
CUSTODY. custody
custodial trust. See TRUST.
custodian, n. 1. A person or institution that has charge
or custody (of a child, property, papers, or other valu
ables); GUARDIAN . In reference to a child, a custodian
has either legal or physical custody. See CAREGIVER. 2.
Bankruptcy. A prepetition agent who has taken charge
ofany asset belonging to the debtor. 11 USCA 101(11).
[Cases: Bankruptcy (;:::=>2021.1.] custodianship, n.
custodian bank. See BANK.
custodia terrae et haeredis. See DE CUSTODIA TERRAE
ET HAEREDIS.
custody, n. (15c) 1. The care and control of a thing or
person for inspection, preservation, or security.
constructive custody. (1822) Custody of a person (such
as a parolee or probationer) whose freedom is con
trolled by legal authority but who is not under direct
phYSical controL
penal custody. Custody intended to punish a criminal
offender. [Cases: Escape
physical custody. See PHYSICAL CUSTODY (1).
preventive custody. (1976) Custody intended to prevent
further dangerous or criminal behavior.
protective custody. (1929) 1. The government's con
finement of a person for that person's own security
or well-being, such as a witness whose safety is in
jeopardy or an incompetent person who may harm
him-or herself or others. [Cases: Witnesses (;:::=>20.]
2. Family law. An arrangement intended to protect
a child from abuse, neglect, or danger whereby the
child is placed in the safety of a foster family after
being removed from a home or from the custody of
the person previously responsible for the child>scare.
[Cases: Infants (;:::=>226.] 3. An arrangement made by
law-enforcement authorities to safeguard a person
in a place other than the person's home because of
criminal threats to harm the person.
2. Family law. The care, control, and maintenance
of a child awarded by a court to a responsible adult.
-Custody involves legal custody (decision-making
authority) and physical custody (caregiving author
ity), and an award of custody usu. grants both rights.
In a divorce or separation proceeding between the
parents, the court usu. awards custody to one of them,
unless both are found to be unfit, in which case the
court may award custody to a third party, typically a
relative. In a case involving parental dereliction, such
as abuse or neglect, the court may award custody to the
state for placing the child in foster care ifno responsible
relative or family friend is willing and able to care for
the child. -Also termed child custody; legal custody;
managing conservatorship; parental functions. See
managing conservator (2) under CONSERVATOR; PAR
ENTING PLA~. [Cases: Child Custody (;:=:> 1.]
divided custody. (1905) An arrangement by which
each parent has exclusive physical custody and full
control of and responsibility for the child part of
the time, with visitation rights in the other parent.
442 custody decree
-For example, a mother might have custody during
the school year, and the father might have custody
during the summer vacation. [Cases: Child Custody
(:::;' 21O.J
joint custody. (1870) An arrangement by which both
parents share the responsibility for and authority
over the child at all times, although one parent may
exercise primary physical custody. -In most juris
dictions, there is a rebuttable presumption that joint
custody is in the child's best interests. JOint-custody
arrangements are favored unless there is so much ani
mosity between the parents that the child or children
will be.adversely affected by a joint-custody arrange
ment. An award of joint custody does not necessar
ily mean an equal sharing of time; it does, however,
mean that the parents will consult and share equally
in the child's upbringing and in decision-making
about upbringing. In a joint-custody arrangement,
the rights, privileges, and responsibilities are shared,
though not necessarily the physical custody. In a
joint-custody arrangement, physical custody is usu.
given to one parent. In fact, awards of joint physical
custody, in the absence of extraordinary circum
stances, are usu. found not to be in the best inter
ests ofthe child. -Also termed shared custody; joint
managing conservatorship. [Cases: Child Custody (:::;'
120-155.]
"The statutes, and the cases as well, differ over the defini
tion of joint custody. It is most often defined as meaning
only that both parents will share in the decisions concern
ing the child's care, education, religion, medical treat
ment and general welfare." Homer H. Clark Jr.. The Law
of Domestic Relations in the United States 19.5. at 815
(2d ed. 1988).
legal custody. 1. CUSTODY (2). 2. CUSTODY (3). 3. The
authority to make Significant decisions on a child's
behalf, including decisions about education, religiOUS
training, and healthcare. [Cases: Child Custody (;=
100-107.J
physical custody. 1. PHYSICAL CUSTODY (2). 2. PHYSICAL
CUSTODY (3).
residential custody. See PHYSICAl. CUSTODY (2).
shared custody. See joint custody.
sole custody. (1870) An arrangement by which one
parent has full control and sole decision-making
responsibility -to the exclusion ofthe other parent
on matters such as health, education, religion, and
living arrangements. [Cases: Child Custody 1,
100-107,100-107,27.]
split custody. An arrangement in which one parent
has custody ofone or more children, while the other
parent has ~ustody ofthe remaining children. _ Split
custody is fairly uncommon, since most jurisdictions
favor keeping siblings together. [Cases: Child Custody
0;>27.]
3. The detention ofa person by virtue oflawful process
or authority. -Also termed legal custody. [Cases:
Arrest (:::;'68(3).] -custodial, adj.
custody decree. See DECREE. custody determination. Family law. A court order deter
mining custody and visitation rights. _ The order typi
cally does not include any instructions on child support
or other monetary obligations. [Cases: Child Custody
(;=511,530.]
custody evaluation. See HOME-STUDY REPORT.
custody hearing. See HEARING.
custody interference. See CUSTODIAl. INTERFERENCE.
custody ofthe law. (17c) The condition of property or a
person being under the control oflegal authority (as a
court or law officer). See IN CUSTODIA tEGIS.
custody proceeding. Family law. An action to determine
who is entitled to legal or physical custody of a child.
_ Legal custody gives one the right to make Significant
decisions regarding the child, and physical custody
gives one the right to physical care and control of the
child. See CUSTODY; custody hearing under HEARING.
[Cases: Child Custody C--::::401.]
custom, n. (13c) 1. A practice that by its common
adoption and long, unvarying habit has come to have
the force oflaw. See USAGE. [Cases: Customs and Usages
G-~1.] -customary, adj.
conventional custom. A custom that operates only
indirectly through the medium ofagreements, so that
it is accepted and adopted in individual instances as
conventional law between the parties to those agree
ments. -Also termed usage. See USAGE.
general custom. 1. A custom that prevails throughout a
country and constitutes one ofthe sources of the law
ofthe land. [Cases: Customs and Usages 2.
A custom that businesses recognize and follow. See
trade usage under USAGE.
legal custom. A custom that operates as a binding rule
oflaw, independently ofany agreement on the part of
those subject to it. -Often shortened to custom.
local custom. A custom that prevails in some defined
locality only, such as a city or county, and constitutes
a source of law for that place only. Also termed
particular custom; special custom. [Cases: Customs
and Usages (:::;' 1-22.]
2. (pl.) Duties imposed on imports or exports. 3. (pl.)
The agency or procedure for collecting such duties.
customal, n. See CUSTOMARY.
custom and usage. General rules and practices that
have become the norm through unvarying habit and
common use. Cf. CUSTOM (1); USAGE. [Cases: Customs
and Usages (:::;' 1-22.]
customary, n. (16c) A record |
Customs
and Usages (:::;' 1-22.]
customary, n. (16c) A record of all the established legal
and quasi-legal practices within a community. Also
termed custumal; customal.
customary court baron. See COURT BARON.
customary dispatch. See DISPATCH.
customary estate. See COPYHOLD.
customary freehold. See COPYHOLD.
customary international law. See INTERNATIONAL LAW.
443
customary interpretation. See INTERPRETATION.
customary law. (16c) Law consisting of customs that
are accepted as legal requirements or obligatory rules
of conduct; practices and beliefs that are so vital and
intrinsic a part of a social and economic system that
they are treated as if they were laws. -Also termed
consuetudinary law.
"In contrast with the statute, customary law may be said to
exemplify implicit law. Let us, therefore, describe custom
ary law in terms that will reveal to the maximum this quality
of implicitness. A custom is not declared or enacted, but
grows or develops through time. The date when it first
came into full effect can usually be assigned only within
broad limits. Though we may be able to describe in general
the class of persons among whom the custom has come
to prevail as a standard of conduct, it has no definite
author; there is no person or defined human agency we
can praise or blame for its being good or bad. There is no
authoritative verbal declaration of the terms of the custom;
it expresses itself not in a succession of words, but in a
course of conduct." Lon L. Fuller, Anatomy of the Law 71
(1968).
customary seisin. See quasi-seisin under SEISIN.
customary tenant. See TENANT.
customers' goods. See GOODS.
customer's man. See registered representative under REP
RESENTATIVE.
customer's person. See registered representative under
REPRESENTATIVE.
customhouse. A building or office, esp. at a port, where
duties or customs are collected and where ships are
cleared for entering or leaving the port. -Also spelled
customshouse.
customhouse broker. See BROKER.
custom ofYork. See YORK, CUSTOM OF.
Customs and Patent Appeals, Court of. See COURT OF
CUSTOMS AND PATENT APPEALS.
customs broker. See customhouse broker under BROKER.
Customs Cooperation Council. A specialized inter
governmental organization for the study of customs
questions. Established in 1952, the Council has its
headquarters in Brussels. -Abbr. CCc.
Customs Court, U.S. See UNITED STATES CUSTOMS
COURT.
customs duty. See DUTY (4).
customs frontier. Int'llaw. The territorial boundary at
which a country imposes customs duties.
customshouse. See CUSTOMHOUSE.
customs union. Int'l law. A combination of two or
more countries within a single customs area with a
common external tariff, though each participating
country remains politically independent. The effect
is that tariffs originally levied on the traffic of goods
between those countries are abolished or else succes
sively dismantled according to an agreed-upon scheme,
and that common tariffs are imposed on imports from
nonmembers. cyberlaw
custos (k;)s-tahs also k;)s-t;)s). [Latin] Hist. A keeper, pro
tector, or guardian.
Custos Brevium (k;)s-tahs bree-vee-;)m). [Law Latin
"keeper of the writs"] Hist. A clerk who receives and
files the writs returnable to the Courts ofKing's Bench
and Common Pleas. The office was abolished in
1837. -Also termed Keeper ofthe Briefs.
custos maris (k;)s-tahs mar-is). [Law Latin "warden ofthe
sea"] Hist. A high-ranking naval officer; an admiral.
Also termed seaward; seward.
custos morum (k;)s-tahs mor-dm). [Law Latin] Custodian
ofmorals <H.L.A. Hart believed that courts should not
be seen as the custos morum> . This name was some
times used in reference to the Court of King's Bench.
"[H]e [Viscount Simonds] approved the assertion of Lord
Mansfield two centuries before that the Court of King's
Bench was the custos morum of the people and had the
superintendency of offences contra bonos mores." Patrick
Devlin, The Enforcement ofMorals 88 (1968).
custos placitorum coronae (k;)s-tahs plas-;)-tor-dm
kd-roh-nee). [Law Latin] See CORONATOR.
Custos Rotulorum (k;)s-tahs roch-p-lor-dm or rot-Yd
lor-dm). [Law Latin "keeper ofthe pleas ofthe Crown"]
Hist. The principal justice of the peace in a county,
responsible for the rolls of the county sessions of the
peace. -Also termed Keeper ofthe Rolls.
Custos Sigilli. See KEEPER OF THE GREAT SEAL.
custos spiritualium (k;)s-tahs spir-i-choo-ay-Iee-;)m or
-tyoo-ay-Iee-;)m). [Law Latin "keeper of the spirituali
ties"] Eccles. law. A member of the clergy responsible
for a diocese's spiritual jurisdiction during the vacancy
of the see.
custos terrae (k;)s-tahs ter-ee). [Law Latin "keeper ofthe
land"] Hist. Guardian, warden, or keeper ofthe land.
custuma (k;)s-chd-md or k;)S-tp-md). [French coustum
"toll" or "tribute"] Hist. A duty or impost.
custumal, n. See CUSTOMARY.
cutoff date. See DATE.
cutpurse. Hist. A person who steals by cutting purses;
a pickpocket.
CVA. abbr. United States Court of Veterans Appeals.
See UNITED STATES COURT OF APPEALS FOR VETERANS
CLAIMS.
CVSG. abbr. A call for the view of the Solicitor General
an invitation from the U.S. Supreme Court for the
Solicitor General's views on a pending petition for writ
ofcertiorari in a case in which, though the government
is not a party, governmental interests are involved.
Cwth. abbr. COMMONWEALTH (4).
CXT. abbr. See common external tariff under TARIFF (2).
cybercrime. See computer crime under CRIME.
cybedaw (sI-bdr-law). (1994) The field oflaw dealing with
the Internet, encompassing cases, statutes, regulations,
and disputes that affect people and businesses interact
ing through computers. Cyberlaw addresses issues
ofonline speech and business that arise because ofthe
nature ofthe medium, including intellectual property
rights, free speech, privacy, e-commerce, and safety, as
well as questions ofjurisdiction. -Also termed cyber
space law.
"Much of the hoopla about 'cyberspace law' relates more
to climbing the steep learning curve of [the Internet'sl tech
nological complexities than to changes in fundamental
legal principles. To the extent there was 'new' law, it was
almost entirely caseby-case development, in accordance
with accepted and wellunderstood basic legal principles,
albeit applied to new technology and new circumstances."
Jay Dratler Jr., Cyberlaw 1.01, at 13 (2001).
cyberpatent. See business-method patent and Internet
patent under PATENT (3).
cyberpayment. A transfer of money over the Internet,
usu. through a payment service. -Also termed
Internet payment.
cyberpiracy. Trademarks. The act of registering a well
known name or mark (or one that is confusingly
similar) as a website's domain name, usu. for the
purpose of deriving revenue . One form of cyber
piracy is cybersquatting. Another is using a similar
name or mark to mislead consumers. For example, a
site called Nikee.com that sells Nikee branded athletic
shoes and sporting goods would draw customers away
the famous Nike brand. [Cases: Trademarks C=o 1490
1503.] -cyberpirate, n.
cyberspace law. See CYBERLAW.
cybersquatting. (1997) The act of reserving a domain
name on the Internet, esp. a name that would be associ
ated with a company's trademark, and then seeking to
profit by selling or licensing the name to the company
that has an interest in being identified with it . The
practice was banned by federal law in 1999. See ANTI
CYBERSQUATTING CONSUMER PROTECTION ACT. [Cases:
Telecommunications C=o 1333.]
cyberstalking. (1995) The act of threatening, harass
ing, or annoying someone through multiple e-mail
messages, as through the Internet, esp. with the intent
of placing the recipient in fear that an illegal act or an
injury will be inflicted on the recipient or a member of
the recipient's family or household.
cyberterrorism. See TERRORISM.
cybertheft. (1994) The act of using an online computer
service, such as one on the Internet, to steal someone
else's property or to interfere with someone else's use
and enjoyment of property. Examples of cybertheft
are hacking into a bank's computer records to wrong
fully credit one account and debit another, and interfer
ing with a copyright by wrongfully sending protected
material over the Internet. [Cases: Telecommunications
C=o461.15.] cyclical (sI-kl;l-bl or sik-l;l-bl), ad}. (Of a stock or an
industry) characterized by large price swings that occur
because of government policy, economic conditions,
and seasonal changes.
cy pres (see pray or SI). [Law French "as near as"] (1885)
1. The equitable doctrine under which a court reforms
a written instrument with a gift to charity as closely
to the donor's intention as possible, so that the gift
does not fail. Courts use cy pres esp. in construing
charitable gifts when the donor's original charitable
purpose cannot be fulfilled. It is also used to distrib
ute unclaimed portions of a class-action judgment or
settlement funds to a charity that will advance the
interests of the class. More recently, courts have used
cy pres to distribute class-action-settlement funds not
amenable to individual claims or to a meaningful pro
rata distribution to a nonprofit charitable organization
whose work indirectly benefits the class members and
advances the public interest. Cf. DOCTRINE OF APPROX
IMATION. [Cases: Charities C=o37; Deposits in Court
C=oll.]
"The cy pres doctrine has been much discussed, if not
a little severely criticised, and in many cases misunder
stood.... The cy pres doctrine is one under which Courts
of Chancery act, when a gift for charitable uses cannot
be applied according to the exact intention of the donor.
In such cases the courts will apply the gift, as nearly as
possible (cy pres) in conformity with the presumed general
intention of the donor; for it is an established maxim in the
interpretation of wills, that a court is bound to carry the
will into effect if it can see a general intention consistent
with the rules of law, even if the particular mode or manner
pointed out by the testator cannot be followed." George
T. Bispham, The Principles ofEquity 104, at 113-14 (11th
ed.1931).
"Although the reason for the adoption of the cy pres rule
by the English chancery court in the middle ages is not
known, various hypotheses as to the motives of the court
have been suggested. The most plausible theory is that
the chancellors, being ecclesiastics and trained in Roman
law, resurrected this civil law doctrine in order to save
gifts made for religious purposes and thereby subject the
property to church control. Justification for the use of the
doctrine was laid on the shoulders of the donor, the idea
being that since the object of the testator in donating the
money to charity was to obtain an advantageous position
in the kingdom of heaven, he ought not to be frustrated
in this desire because of an unexpected or unforeseen
failure." Edith L. Fisch, The Cy Pres Doctrine in the United
States 4 (1950).
2. A statutory provision that allows a court to reform
a will, deed, or other instrument to avoid violating the
rule against perpetuities. See RULE AGAINST PERPETU
ITIES. [Cases: Perpetuities C=o4(22).]
cyrographarius (sI-roh-gp-fair-ee-;ls). [Law Latin] Hist.
See CHIROGRAPH (4).
cyrographum (sI-rog-r;l-bm). [Law Latin] See CHIRO
GRAPH (2).
D
D. abbr. 1. DISTRICT. 2. DEFENDANT. 3. DIGEST.
D.A. abbr. 1. DISTRICT ATTORNEY. 2. See deposit account
under ACCOUNT.
dactylography (dak-td-Iog-rd-fee), n. The scientific study
of fingerprints as a method of identification. Also
termed dactyloscopy. dactylographic (dak-til-d
graf-ik), a'dj.
dactyloscopy. See DACTYLOGRAPHY.
DAF. abbr. DELIVERED AT FRONTIER.
dailia. See DALUS.
dailus. See DALUS.
daily balance. (1859) The final daily accounting for a day
on which interest is to be accrued or paid.
average daily balance. The average amount of money
in an account (such as a bank account or credit-card
account) during a given period . This amount serves
as the basis for computing interest or a finance charge
for the period.
daily newspaper. See NEWSPAPER.
daisy chain. A series ofpurchases and sales ofthe same
stock by a small group ofsecurities dealers attempting
to drive up the stock's price to attract |
ases and sales ofthe same
stock by a small group ofsecurities dealers attempting
to drive up the stock's price to attract unsuspecting
buyers' interest . Once the buyers have invested (Le.,
are caught up in the chain), the traders sell for a qUick
profit, leaving the buyers with overpriced stock. This
practice is illegaL
dalus (day-IdS), n. [Law Latin "a dale"] Hist. 1. A dale; a
ditch. 2. A measure ofland being a thin strip ofpasture
between two plowed furrows. Also termed dailus;
dailia.
damage, adj. Of or relating to monetary compensation
for loss or injury to a person or property <a damage
claim> <a damage award>. -Also termed damages
<a damages claim>. Cf. DAMAGES.
damage, n. (l4c) Loss or injury to person or property
<actionable damage resulting from negligence>.
damage-deer (dam-ij kIeer), n. [fro Latin damna cleri
corum "clerk's compensation"] Hist. A set fee payable
by a plaintiff to the Court of the Common Pleas, King's
Bench, or Exchequer before execution on an award of
damages. The fee -later abolished by statute was
originally a gratuity to the court clerks for preparing
special pleadings. -Also spelled damage cleere.
Also termed damna clericorum.
"Damage cleere, damna clericorum, was assessed by the
tenth part in the common pleas, and by the twentieth part
in the king's bench and exchequer, of all damages, exceed
ing five marks, recovered either by verdict, confeSSion,
or judgment of the court, in all actions upon the case,
covenant. trespass, battery, false imprisonment, dower,
and all others, wherein the damages were uncertain. which the plaintiff was obliged to pay to the prothonotary, or
chief officer of that court, wherein they were recovered
before he could have execution for them. But this is taken
away by 17 Car. 2, c. 6." Termes de fa Ley 141 (lst Am. ed.
1812).
damage feasant (dam-ij fez-dnt orfee-zdnt), n. [fro French
faisant dommage] Hist. Doing damage . This phrase
usu. refers to injury to a person's land caused by another
person's animals trespassing on the property and eating
the crops or treading the grass. By law, the owner of
the damaged property could distrain and impound the
animals until compensated by the animals' owner. But
the impounder had to feed the animals and could not
sell or harm them. The term was introduced during the
reign ofEdward III. Also spelled damage faisant.
Also termed damnum facientes.
damage rule. See LEGAL-INJURY RULE.
damages, n. pI. (l6c) Money claimed by, or ordered to
be paid to, a person as compensation for loss or injury
<the plaintiff seeks $8,000 in damages from the defen
dant>. damage, adj.
"Damages are the sum of money which a person wronged
is entitled to receive from the wrongdoer as compensa
tion for the wrong." Frank Gahan, The Law of Damages
1 (1936).
accumulative damages. Statutory damages allowed
in addition to amounts available under the common
law. Also termed enhanced damages.
actual damages. (18c) An amount awarded to a com
plainant to compensate for a proven injury or loss;
damages that repay actual losses. Also termed com
pensatory damages; tangible damages; real damages.
[Cases: Damages <>~)15.J
added damages. See punitive damages.
additional damages. Damages usu. provided by statute
in addition to direct damages . Additional damages
can include expenses resulting from the injury, con
sequential damages, or punitive damages.
benefit-of-the-bargain damages. (1955) Damages that a
breaching party to a contract must pay to the aggrieved
party, equal to the amounts that the aggrieved party
would have received, including profits, ifthe contract
had been fully performed. Also termed loss-oJ-bar
gain damages. [Cases: Damages l17; Fraud
59(2).]
compensatory damages (kdm-pen-sd-tor-ee). (1817)
1. Damages sufficient in amount to indemnify the
injured person for the loss suffered. Often short
ened to 2. See actual damages. [Cases:
Damages
consequential damages. 07c) Losses that do not flow
directly and immediately from an injurious act but
that result indirectly from the act. -Also termed
indirect damages. [Cases: Damages C='15-25.]
contemptuous damages. See nominal damages.
continuing damages. 1. Ongoing damages arising from
the same injury. 2. Damages arising from the repeti
tion ofsimilar acts within a definite period.
cosmetic damages. The amount awarded to compensate
for personal disfigurement.
damages for lost expectations. See expectation dama
ges.
damages ultra (;)}-tr;). Additional damages claimed by
a plaintiff who is not satisfied with the amounts the
defendant paid into court.
direct damages. See general damages.
discretionary damages. Damages (such as mental
anguish or pain and suffering) that are not precisely
measurable but are determined by the subjective
judgment of a jury. -Also termed indeterminate
damages.
double damages. Damages that, by statute, are twice
the amount that the fact-finder determines is owed
or twice the amount ofactual damages awarded . In
some cases, double damages are awarded in addition
to actual damages, so the effect is the same as treble
damages. [Cases: Damages C='227.]
enhanced damages. 1. See accumulative damages.
2. Patents. Damages for patent infringement in an
amount up to three times that of compensatory
damages, at the discretion of the court, based on the
egregiousness of the defendant's conduct, including
the willfulness of the infringement. 35 VSCA 284.
[Cases: Patents C='319(3).]
estimated damages. See liquidated damages.
excess damages. Damages awarded to an insured
beyond the coverage provided by an insurance
policy -because the insurer did not settle the claim
within policy limits. Ifthe insurer acted in bad
faith in not settling, the insured may have a claim to
recover the excess damages from the insurer. -Also
termed excess-liability damages. [Cases: Insurance
C='3350.]
excessive damages. A jury award that grossly exceeds
the amount warranted by law based on the facts and
circumstances of the case; unreasonable or outra
geous damages, which are subject to reduction by
remittitur. See REMITTITUR. [Cases: Damages (::::>
127-140.]
exemplary damages. See punitive damages.
expectation damages. (1939) Compensation awarded
for the loss of what a person reasonably anticipated
from a transaction that was not completed. -Also
termed expectancy damages; lost-expectation damages;
damages for lost expectations. [Cases: Damages (::::>
23.]
fee damages. Damages awarded to the owner of
property abutting an elevated railrhist oad for injury caused by the railroad's construction and
operation. The term is used because the damage is
to the property owner's easements of light, air, and
access, which are parts of the fee.
foreseeable damages. Damages that a breaching party
knew or should have known when the contract was
made would be likely to result from a breach. [Cases:
Damages C='21.]
future damages. (17c) Money awarded to an injured
party for an injury's residual or projected effects, such
as those that reduce the person's ability to function.
Examples are expected pain and suffering, loss
or impairment of earning capacity, and projected
medical expenses. [Cases: Damages (::::>25.]
general damages. (18c) Damages that the law presumes
follow from the type ofwrong complained of; specif.,
compensatory damages for harm that so frequently
results from the tort for which a party has sued that
the harm is reasonably expected and need not be
alleged or proved. General damages do not need
to be specifically claimed. -Also termed direct
damages; necessary damages. [Cases: Damages C='
5.]
gross damages. The total damages found before adjust
ments and offsets.
hedonic damages (hi-don-ik). (1985) Damages that
attempt to compensate for the loss of the pleasure of
being alive . Such damages are not allowed in most
jurisdictions. -Also termed (erroneously) hedonistic
damages. [Cases: Damages (::::>48-56.20.]
imaginary damages. See punitive damages.
inadequate damages. Damages insufficient to fully
and fairly compensate the parties; damages bearing
no reasonable relation to the plaintiff's injuries, indi
cating prejudice, mistake, or other fact to support
setting aside a jury's verdict. [Cases: Damages (::::>
127.1-140.7.]
incidental damages. (18c) 1. Losses reasonably associ
ated with or related to actual damages. 2. A seller's
commercially reasonable expenses incurred in
stopping delivery or in transporting and caring for
goods after a buyer's breach. VCC 2-7l0. [Cases:
Sales (::::>384(4).] 3. A buyer's expenses reasonably
incurred in caring for goods after a seller's breach.
VCC 2-715(1). [Cases: Sales (::::>418(19).]
"What are incidental damages? The Code does not define
incidental damages; rather 2-715(1) lists many expenses
that are included as incidental damages. However,
Comment 1 to 2-715 stresses that those listed 'are not
intended to be exhaustive' but are merely illustrative
of the typical kinds of incidental expenses that can be
recovered under 2-715: (1) those associated with rightful
rejection (for instance, inspection and storage); (2) those
associated with a proper revocation of acceptance; and
(3) those involved in effecting cover." 1 James J. White &
Robert S. Summers, Uniform Commercial Code 10-3, at
561-62 (4th ed. 1995).
indeterminate damages. See discretionary damages.
indirect damages. See consequential damages.
intervening damages. Continuing damages that accrue
during the pendency and prosecution of an unsuc
cessful appeal. _ A lower court may include interven
ing damages in an award.
irreparable damages (i-rep-<J-r<J-b<JI). Damages that
cannot be easily ascertained because there is no fixed
pecuniary standard of measurement, e.g., damages
for a repeated public nuisance. -Also termed non
pecuniary damages.
land damages. See just compensation under COMPEN
SATION.
lawful damages. Those damages fixed by law and ascer
tained in' a court oflaw.
liquidated damages. (I8c) An amount contractu
ally stipulated as a reasonable estimation of actual
damages to be recovered by one party if the other
party breaches. -If the parties to a contract have
properly agreed on liquidated damages, the sum fixed
is the measure of damages for a breach, whether it
exceeds or falls short of the actual damages. -Also
termed stipulated damages; estimated damages. See
LIQUIDATED-DAMAGES CLAUSE. Cf. unliquidated
damages; PENALTY CLAUSE. [Cases: Damages c=>
74-84.]
"Where the terms of a contract specify a sum payable for
non'performance, it is a question of construction whether
this sum is to be treated as a penalty or as liquidated
damages. The difference in effect is this: The amount
recoverable in case of a penalty is not the sum named, but
the damage actually incurred. The amount recoverable as
liquidated damages is the sum named as such. In constru
ing these terms a judge will not accept the phraseology
of the parties; they may call the sum specified 'liquidated
damages,' but if the judge finds it to be a penalty, he will
treat it as such." William R. Anson, Principles ofthe Law of
Contract 470 (Arthur L. Corbin ed., 3d Am. ed. 1919).
"The distinction between a penalty and genuine liqui
dated damages, as they are called, is not always easy
to apply. but the Courts have made the task simpler by
laying down certain guiding principles. In the first place,
if the sum payable is so large as to be far in excess of
the probable damage on breach, it is almost certainly a
penalty. Secondly, if the same sum is expressed to be
payable on anyone of a number of different breaches of
varying importance, it is again probably a penalty, because
it is extremely unlikely that the same damage would be
caused by these varying breaches. Thirdly, where a sum is
expressed to be payable on a certain date, and a further
sum in the event of default being made, this latter sum is
prima facie a penalty, because mere delay in payment is
unlikely to cause damage. Finally, it is to be noted that the
mere use of the words 'liquidated damages' is not decisive,
for it is the task of the Court and not of the parties to
decide the true nature of the sum payable." P.5. Atiyah, An
Introduction to the Law ofContract 316-17 (3d ed. 1981).
loss-of-bargain damages. See benefit-of-the-bargain
damages.
lost-expectation damages. See expectation damages.
lost-profits damages. See LOST-PROFITS (1).
moratory damages (mor-cHor-ee or mahr |
profits damages. See LOST-PROFITS (1).
moratory damages (mor-cHor-ee or mahr-). Civil
law. Damages for a delay in performing an obliga
tion. La. Civ. Code arts. 1989. 1994. -There must
be a default before these damages can be recovered, while compensatory damages are recoverable for both
a failure of performance and for a defective perfor
mance.
multiple damages. Statutory damages (such as double
or treble damages) that are a multiple of the amount
that the fact-finder determines to be owed. Also
termed multiplied damages. See double damages;
treble damages. [Cases: ~ULHU"~U
"[TJhe statutory multiple damages differ from the common
law punitive damages in that punitive damages involved
no fixed sum or limit. The fixed limit of multiple damages
not only reduces their threat to the defendant and the
potential for abuse, it also reduces the possibility of a
measured deterrence. Likewise, because the enhancement
of the award is fixed by the statutory multiple, there is
no occasion for introducing evidence of the defendant'S
wealth as there is in the case of common law punitive
damages. .. Perhaps a more important distinction is
that multiple damages statutes may be enacted for entirely
nonpunitive purposes. SpeCifically, some double or treble
damages statutes, and also specified 'civil penalties,' are
intended to provide a kind of liquidated damages for actual
losses that cannot be proved or that are otherwise unrec
ognized by the law." Dan B. Dobbs, Law ofRemedies 3.12,
at 359 (2d ed. 1993).
necessary damages. See general damages.
nominal damages. (18c) 1. A trifling sum awarded when
a legal injury is suffered but there is no substantial loss
or injury to be compensated. 2. A small amount fixed
as damages for breach ofcontract without regard to
the amount of harm. -Also termed contemptuous
damages. Cf. substantial damages. [Cases: Damages
C=>8-14.]
"Nominal damages are damages awarded for the infrac
tion of a legal right, where the extent of the loss is not
shown, or where the right is one not dependent upon loss
or damage, as in the case of rights of bodily immunity
or rights to have one's material property undisturbed by
direct invasion. The award of nominal damages is made
as ajudicial declaration that the plaintiff's right has been
violated." Charles T. McCormick, Handbook on the Law of
Damages 20, at 85 (1935).
"Nominal damages are awarded if the plaintiff establishes
a breach of contract or a tort of the kind that is said to be
'actionable per se' but fails to establish a loss caused by
the wrong. In the case of tort not actionable per se for
example, negligence, if the plaintiff fails to establish a
the action will be dismissed. The practical significance of a
judgment for nominal damages is that the plaintiff thereby
establishes a legal right. The judgment has the effect of a
declaration of legal rights and may deter future infringe
ments or may enable the plaintiff to obtain an injunction
to restrain a repetition of the wrong. The obtaining of
nominal damages will also, in many cases, entitle a plaintiff
to costs .... [Also,] nominal damages might serve as a peg
upon which to hang an award of exemplary damages." S.M.
Waddams, The Law of Damages 477-78 (3d ed. 1997).
nonpecuniary damages. Damages that cannot be
measured in money. See irreparable damages.
particular damages. See special damages.
pecuniary damages (p<:l-kyoo-nee-er-ee). (17c) Damages
that can be estimated and monetarily compensated.
-Although this phrase appears in many old cases,
it is now widely considered a redundancy -since
damages are always pecuniary.
448 damages
permanent damages. Damages for past, present, and
future harm that cannot be avoided or remedied.
[Cases: Damages C=:'39, 98,110, 216(6).J
presumptive damages. See punitive damages.
prospective damages. Future damages that, based on
the facts pleaded and proved by the plaintiff, can rea
sonably be expected to occur. [Cases: Damages C=:'
25.J
proximate damages. Damages directly, immediately,
and naturally flowing from the act complained of. Cf.
speculative damages (1). [Cases: Damages C=:' 18.J
punitiv~ damages. (1848) Damages awarded in
addition to actual damages when the defendant
acted with recklessness, malice, or deceit; specif.,
damages assessed by way of penalizing the wrong
doer or making an example to others. Punitive
damages, which are intended to punish and thereby
deter blameworthy conduct, are generally not recov
erable for breach ofcontract. The Supreme Court has
held that three guidelines help determine whether a
punitive-damages award violates constitutional due
process: (1) the reprehensibility ofthe conduct being
punished; (2) the reasonableness of the relationship
between the harm and the award; and (3) the differ
ence between the award and the civil penalties autho
rized in comparable cases. BMW ofNorth America,
Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589 (1996).
Also termed exemplary damages; vindictive damages;
punitory damages; presumptive damages; added
damages; aggravated damages; speculative damages;
imaginary damages; smart money; punies. [Cases:
Damages C=:'87-94.J
"Although compensatory damages and punitive damages
are typically awarded at the same time by the same deci
sionmaker, they serve distinct purposes. The former are
intended to redress the concrete loss that the plaintiff has
suffered by reason of the defendant's wrongful conduct.
The latter, which have been described as 'quasi-criminal,'
operate as 'private fines' intended to punish the defendant
and to deter future wrongdoing. A jury's assessment of
the extent of a plaintiff's injuries is essentially a factual
determination, whereas its imposition of punitive damages
is an expression of its moral condemnation" Cooper Indus.
v. Leatherman Tool, S32 U.S. 424, 432,121 S.Ct. 1678, 1683
(2001) (per Stephens, J).
putative damages. Damages that are alleged; claimed
but unproved damages.
real damages. See actual damages.
reliance damages. (1938) Damages awarded for losses
incurred by the plaintiff in reliance on the contract.
Reliance damages restore the plaintiff to the economic
condition the plaintiff enjoyed before the contract was
formed. [Cases: Damages C=:'22.J
"Reliance damages are ... 'real' losses in a much more
tangible way than losses of expectations. The distinction
is nicely illustrated by McRae v. Commonwealth Disposals
Commission . ... In this case, ... the defendants sold a
shipwrecked tanker which they advertised as lying on a
certain reef in the Pacific, and the plaintiffs spent a sub
stantial sum of money equipping a salvage expedition to
go in search of the ship. The ship was wholly non-existent,
and the plaintiffs were held entitled to damages. Here it was clear that the plaintiffs had incurred substantial
expenses -real losses -in reliance on the contract, and
the Australian High Court awarded these reliance damages
to the plaintiffs." P.S. Atiyah, An Introduction to the Law of
Contract 311 (3d ed. 1981).
reliance-loss damages. A reimbursement for losses
or expenses that the plaintiff suffers in reliance on
the defendant's contractual promise that has been
breached.
remote damages. See speculative damages (1).
rescissory damages (ri-sis-;.l-ree or ri-siz-). Damages
awarded to restore a plaintiff to the position occupied
before the defendant's wrongful acts.
restitution damages. (1939) Damages awarded to
a plaintiff when the defendant has been unjustly
enriched at the plaintiff's expense.
"Suppose A pays money to B in pursuance of a contract
which turns out to be void, or perhaps is subsequently
frustrated: clearly A cannot sue Bfor breach of contract. B's
promise to perform his side of the bargain is vitiated by the
mistake or the frustrating event, so A's lost expectations
are losses which he must just put up with. But his claim to
repayment of the money is evidently much stronger: for
this money is a tangible loss to A and a tangible enrich
ment to B. So in this sort of case the money will often
be recoverable, though English lawyers think of this as
a quaSi-contractual claim to recover money as on a total
failure of consideration, and not a contractual claim to
restitution damages. There is, however, no strong reason
for refusing to call this a contractual action, any more
than there is a reason for calling an action for damages
quasi-contractual." P.S. Atiyah, An Introduction to the Law
ofContract312 (3d ed. 1981).
severance damages. In a condemnation case, damages
awarded to a property owner for diminution in the
fair market value ofland as a result ofseverance from
the land of the property actually condemned; com
pensation awarded to a landowner for the loss in value
of the tract that remains after a partial taking of the
land. [Cases: Eminent Domain C=:'95, 96,138]
special damages. Damages that are alleged to have
been sustained in the circumstances of a particular
wrong. To be awardable, special damages must be
specifically claimed and proved. See Fed. R. Civ. P.
9(g). -Often shortened to specials. -Also termed
particular damages. [Cases: Damages C=:'5.J
speculative damages. (1804) 1. Damages that are so
uncertain to occur that they will not be awarded.
Also termed remote damages. 2. See punitive
damages.
statutory damages. Damages provided by statute (such
as a wrongful death and survival statute), as distin
guished from damages provided under the common
law. [Cases: Death C=:'80.]
stipulated damages. See liquidated damages.
substantial damages. A considerable sum awarded to
compensate for a significant loss or injury. Cf. nominal
damages. [Cases: Damages C=:'6, 10.]
"Substantial damages ... are the result of an effort at
measured compensation, and are to be contrasted with
nominal damages which are in no sense compensatory,
but merely symbolic." Charles T. McCormick, Handbook on
the Law of Damages 20, at 85 (1935).
tangible damages. See actual damages.
temperate damages. Rare. Reasonable damages.
temporary damages. Damages allowed for an inter
mittent or occasional wrong, such as a real-property
injury whose cause can be removed or abated. [Cases:
Damages 109.]
treble damages. (l8c) Damages that, by statute, are
three times the amount of actual damages that the
fact-finder determines is owed. -Also termed triple
damages: [Cases: Damages C=227.J
uncertain damages. Damages that are not clearly the
result ofa wrong . The rule against allowing recovery
of uncertain damages refers to these damages, not
damages that are uncertain only in amount. [Cases:
Damages
unliquidated damages. (18c) Damages that cannot be
determined by a fixed formula and must be estab
lished by a judge or jury. Cf. liquidated damages.
[Cases: Damages 6,194.]
vindictive damages. See punitive damages.
damages, mitigation of. See MITIGATION-OF-DAMAGES
DOCTRINE.
damages clause. See SuRFACE-DAMAGE CLAlJSE.
damages for detention. See noncontract demurrage
under DEMURRAGE.
dame. 1. The legal title of the wife ofa knight or baronet.
2. The female equivalent of a knight. 3. A form of
address to a woman ofhigh rank. 4. A matron. 5. Slang.
A woman. Also termed (in senses 1 & 2) domina.
damna (dam-n<l), n. [fro Latin damnum "damage; loss"]
Hist. 1. Damages, exclusive ofcosts. 2. Damages, inclu
sive ofcosts. 3. The abbreviation ofdamna clericorum,
the Latin equivalent to damage-deer, being a portion
ofdamages constituting the clerk's fee. See DAMAGE
CLEER.
damna clericorum (dam-n<l kler-<l-kor-;:lm), n. See DAM
AGE-CLEER.
damnatus (dam-nay-t<ls), n. [fro Latin damnare "to
condemn"]l. Roman law. A person condemned, esp.
in a capital case. 2. Hist. Something prohibited by law;
something that is unlawful, as in damnatus coitus
("unlawful sexual connection").
damn-fool doctrine. Insurance. The principle that an
insurer may deny (esp. liability) coverage when an
insured engages in behavior that is so ill-conceived that
the insurer should not be compelled to bear the loss
resulting from the insured's actions. -Also termed
damnedJool doctrine.
"The 'damn foolish acts' concept is not a perfect predictor
ofjudicial decisions, both because of its own imprecision
and because other considerations, such as a desire to
assure an innocent third party a source of indemnifica
tion, may influence a court. However, especially when ...
the insured who acted foolishly has suffiCient resources
to provide |
tion, may influence a court. However, especially when ...
the insured who acted foolishly has suffiCient resources
to provide compensation to the injured persons, analysis of a coverage issue on the basis of a 'damn fool' doctrine
is frequently a very effective approach both to predicting
and to understanding outcomes." Robert E. Keeton & Alan
I. Widiss, Insurance Law: A Guide to Fundamental Principles,
Legal Doctrines, and Commercial Practices 5.4, at 541
(1988).
damnification, n. Something that causes damage <dam
nification in the form ofa penalty>.
damnify, vb. To cause loss or damage to; to injure <the
surety was damnified by the judgment obtained against
it>.
damn; injuria actio (dam-m in-joor-ee-ee ak-shee
oh). [Latin "an action for wrongful damage"] See actio
damni injuria under ACTIO.
damnosa aut lucrosa (dam-noh-s<l awt loo-kroh-s<l).
[LatinJ Hist. Disadvantageous or advantageous . The
heir to a succession had to determine whether it was
hurtful or advantageous to him to take up the estate
before actually doing so. See ANNUS DELIBERANDI.
damnosa hereditas (dam-noh-s;:l h;:l-red-i-tas), n. [Latin
"an injurious inheritance"] 1. Roman & civil law. An
inheritance more onerous than beneficial, esp. because
it is burdened with debt. 2. English law. A bankrupt
debtor's property that creditors will disclaim under
the bankruptcy laws because debt on the property will
exceed revenues. 3. Generally, anything that is acquired
but turns out to be disadvantageous. Also spelled
damnosa haereditas.
damnous (dam-n;:ls), adj. Causing loss or damage.
damno vitando. 1. See CERTANS DE DAMNO VITANDO. 2.
See IN DAMNO VITANDO.
damnum (dam-n<lm), n. [Latin] (1828) A loss; damage
suffered. See AD DAMNUM. PI. damna.
damnum absque injuria (dam-n<lm ab-skwee in-joor
ee-<l). See DAMNUM SINE INJURIA.
damnum emergens (dam-n<lm i-mar-jenz). [Latin
"damage arising"] Hist. An actual realized loss (such
as a decline in the value of property) as opposed to
an expected future loss (such as loss of profit); conse
quentialloss.
"These kinds of damage are distinguished by the commen
tators as damnum emergens and lucrum cessans, which
may be rendered 'positive damage' and 'loss of profit.'
The first may be immediate (e.g., my slave is killed or has
lost an eye), or consequential (I have lost his services - I
have incurred medical expenses he was one of a troupe
of singers and the whole troupe is less valuable in conse
quence of his death or injury). Where there is no pecuniary
loss there is no action. An action does not lie ... for striking
a slave if his value to me has not been depreciated by the
blow nor for trespass to land unattended by damage." RW.
Lee, The Elements ofRoman Law 394 (4th ed. 1956).
damnum etinteresse (dam-n;lm et in-tar-es-ee). [Latin]
Scots law. The loss and damage sustained.
"Damnum et interesse .... -The loss and interest; or, as the
words may also be translated, damage, and its issues or
consequences. The words are used by Erskine in treating
of the liability of cautioners who become bound to see a
specific act performed. Failing performance, the cautioners
are liable to the creditors for the damnum et interesse
that is, the actual and consequential damage suffered
450 damnum facientes
through non-performance on the part of the debtor." John
Trayner, Trayner's Latin Maxims 134 (4th ed. 1894).
damnumfacientes (darn-nam fay-shee-en-teez), n. See
DAMAGE FEASANT.
damnumfatale (dam-nam fa-tay-lee). [Latin "unavoid
able damage"] Roman law. Damage caused by an
unavoidable circumstance, such as a storm or a ship
wreck, for which bailees or others will not be held liable.
But an exception was made for damages resulting
from theft.
"The liability of innkeepers, carriers, and stable keepers,
at Roman law, was provided for in the praetor's edict.
They were under an obligation to restore all goods which
the guests or passengers had with them, or left in their
charge, and they could not defend themselves by showing
the utmost degree of diligence. Unavoidable accident,
which no human prudence would avert or provide against,
damnum fatale, or overwhelming force, vis maior, were,
however, an adequate defense. .. It was particularly
noted that theft by a third person would not be permitted
as a defense and the reason assigned was the fact that
travelers have scarcely any chance to protect themselves
against collusion between the innkeeper and the thief."
Max Radin, Handbook ofRoman Law 254 (1927).
damnum infectum (darn-nam in-fek-t<lm). [Latin
"damage not done"] Roman law. Loss not yet suffered
but threatened or apprehended, as when a neighbor's
building is likely to collapse onto one's property.
damnum injuria datum (dam-nam in-joor-ee-<l day
tarn). [Latin "damage causing injury"] Roman law.
Willful or negligent damage to corporeal property;
damage for which compensation was given under the
Aquilian law, _ In this phrase, the word damnum refers
to economic loss, not the physical damage (if any). See
actio legiS Aquiliae under ACTIO.
damnum sine injuria (dam-n<lm sl-nee in-joor-ee-<'l
or sin-ay). [Latin "damage without wrongful act"]
Loss or harm that is incurred from something other
than a wrongful act and occasions no legal remedy.
An example is a loss from fair trade competition.
Also termed damnum absque injuria; absque injuria
damnum; absque injuria. Cf. INJURIA ABSQUE DAMNO.
[Cases: Damages C=::'3.]
"There are cases in which the law will suffer a man know
ingly and wilfully to inflict harm upon another, and will
not hold him accountable for it. Harm of this descrip
tion --mischief that is not wrongful because it does not
fulfil even the material conditions of responsibility is
called damnum sine injuria, the term injuria being here
used in its true sense of an act contrary to law (in jus), not
in its modern and corrupt sense of harm." John Salmond,
Jurisprudence 372-73 (Glanville L Williams ed., 10th ed.
1947).
'There are many forms of harm of which the law takes no
account. Damage so done and suffered is called damnum
sine injuria, and the reasons for its permission by the law
are various and not capable of exhaustive statement. For
example, the harm done may be caused by some person
who is merely exercising his own rights; as in the case of
the loss inflicted on individual traders by competition in
trade, or where the damage is done by a man acting under
necessity to prevent a greater evil." R.F.V. Heuston, Salmond
on the Law ofTorts 13 (17th ed. 1977). Dan (dan), n. [fr. Latin dominus] Archaic. In England,
an honorable title for a man; the English equivalent to
the Spanish Don . The term was replaced by the terms
Master, Mister, and Sir.
D&O liability insurance. See directors' and officers' lia
bility insurance under INSURANCE.
danelaw (dayn-law). Hist.1. A system ofrules, introduced
by the Danes during their invasions ofEngland primar
ily in the ninth century and maintained principally in
the midland and eastern counties where the invasions
occurred. Danelaw was the prevailing law in these
regions from the reign of King Edgar to Edward the
Confessor, who compiled a uniform law that included
some Danelaw components. 2. The counties in England
where the Danish law was enforced primarily in the
ninth and tenth centuries Also termed danelage; lex
Danorum; denelage.
"The Danish invasions of the ninth century subjected the
eastern parts of the island to new Scandinavian influences.
Where the Danes conquered, their 'Danelaw' prevailed.
The very word 'law' is believed to have been given to the
English language by the Danes." JH. Baker, An Introduction
to English Legal History 3 (3d ed. 1990).
danger. (l3c) L Peril; exposure to harm, loss, pain, or
other negative result. 2. A cause ofperil; a menace.
apparent danger. (I6c) 1. Obvious danger; real
danger, Also termed patent danger. 2. Criminal
law. The perceived danger in one person's actions
toward another, as a result ofwhich it seems necessary
for the threatened person to use force in self-defense.
See SELF-DEFENSE. [Cases: Assault and Battery
67; Homicide
deterrent danger. (1959) An obvious danger that an
occupier ofland creates to discourage trespassers,
such as a barbed-wire fence or spikes on the top of
a wall.
imminent danger. (l6c) 1. An immediate, real threat
to one's safety that justifies the use of force in self
defense. 2. Criminal law. The danger resulting from
an immediate threatened injury sufficient to cause a
reasonable and prudent person to defend himself or
herself. [Cases: Assault and BatteryC=::'67; Homicide
C=::'789.]
patent danger. See apparent danger (1).
retributive danger. A concealed danger that an occupier
ofland creates to injure trespassers . A retributive
danger is lawful only to the extent that it could be jus
tified ifthe occupier had inflicted the injury person
ally or directly to the trespasser. Thus, a spring gun or
a land mine is an unlawful means of defending land
against a trespasser.
seeming danger. Danger that a reasonable person
would perceive to be real, even ifit is not.
unavoidable danger. (16c) 1. Inescapable danger. 2. A
danger that is unpreventable, esp. by a person oper
ating a vesseL
danger-creation doctrine. (2000) The theory that ifa
state's affirmative conduct places a person in jeopardy,
451
then the state may be liable for the harm inflicted on
that person by a third party. -This is an exception to
the principle that the state is not liable for an
injury that a third party inflicts on a member of the
public. Also termed danger-creation exception. Cf.
SPECIAL-RELATIONSHIP DOCTRINE. [Cases: States (;=:>
112.2(1).]
dangeria, n. Hist. Payment by forest tenants to the lord
so that they can plow and sow in the same season as
pannage. See PANNAGE.
danger-invites-rescue doctrine. See RESCUE
DOCTRINE.
danger ofnavigation. See PERIL OF THE SEA.
danger ofriver. See PERIL OF THE SEA.
danger ofthe sea. See PERIL OF THE SEA.
dangerous, adj. (15c) 1. (Of a condition, situation, etc.)
perilous; hazardous; unsafe <a dangerous intersec
tion>. 2. (Of a person, an object, etc.) likely to cause
serious bodily harm <a dangerous weapon> <a dan
gerous criminal>.
imminently dangerous. (1834) (Of a person, behavior,
activity, or thing) reasonably certain to place life and
limb in peril. _ This term is relevant in several legal
contexts. For example, ifa mental condition renders
a person imminently dangerous to self or others, he
or she may be committed to a mental hospital. And
the imminently dangerous behavior of pointing
a gun at someone's head could subject the actor to
criminal and tort liability. Further, the manufacturer
ofan imminently dangerous product may be held to a
strict-liability standard in tort. [Cases: Mental Health
Products Liability (;=:>8,21.]
inherently dangerous. (I887) (Of an activity or thing)
requiring special precautions at all times to avoid
injury; dangerous per se. See DANGEROUS INSTRU
MENTALITY; INHERENTLY DANGEROUS ACTIVITY.
dangerous animal. See ANIMAL.
dangerous condition. See CONDITION (5).
dangerous conduct. See unreasonably dangerous conduct
under CONDUCT.
dangerous criminal. See CRIMINAL.
dangerous drug. See DRUG.
dangerous exposure. See EXPOSURE.
dangerous instrumentality. (1857) An instrument, sub
stance, or condition so inherently dangerous that it may
cause serious bodily injury or death without human
use or interference. -It may serve as the basis for
strict liability. See ATTRACTIVE-NUISANCE DOCTRINE.
Cf. deadly weapon under WEAPON. [Cases: Negligence
(.=305-307,1172-1178.]
dangerous lunatic. See LUNATIC.
dangerous occupation. See OCClJPATION.
dangerous-propensity test. See DANGEROUS-TENDENCY
TEST. darrein continuance
dangerous-proximity test. (1973) Criminal law. A
common-law test for the crime of attempt, fOCUSing
on whether the defendant is dangerously close to com
pleting the offense . Factors include the gravity ofthe
potential crime, the apprehension of the victim, and the
uncertainty of the crime's occurrence. See ATTEMPT (2).
[Cases: Criminal Law (;=:>44.]
dangerous situation. (1898) Under the last-clear-chance
doctrine |
;=:>44.]
dangerous situation. (1898) Under the last-clear-chance
doctrine, the circumstance in which a plaintiff operat
ing a motor vehicle has reached a position (as on the
path ofan oncoming train) that cannot be escaped by
the exercise ofordinary care. -Also termed situation
ofdanger. See LAST-CLEAR-CHANCE DOCTRINE. [Cases:
Automobiles
dangerous-tendency test. (1938) A propensity of a
person or animal to inflict injury . The test is used,
esp. in dog-bite cases, to determine whether an owner
will be held liable for injuries caused by the owner's
animal. Also termed dangerous-propensity test.
[Cases: Animals C"66.2, 66.5(2).]
dangerous weapon. See WEAPON.
danger-utility test. See RISK-UTILITY TEST.
danism (dan-iz-am), n. [fr. Greek daneismos "a loan"]
Hist. The lending of money on usury.
Darden hearing. (1979) Criminal procedure. An ex parte
proceeding to determine whether disclosure of an infor
mant's identity is pertinent to establishing probable
cause when there is otherwise insufficient evidence
to establish probable cause apart from the arresting
officer's testimony about an informant's communica
tions. The defense attorney may be excluded from the
hearing but can usu. submit questions to be used by the
judge in the examination. People v. Darden, 313 N.E.2d
49 (N.Y. 1974). [Cases: Criminal Law (;::::'-627.10.j
dare (dair-ee), vb. [Latin "to give"] Roman law. 1. To give;
to transfer (something, esp. property) . The transfer
can be made to discharge a debt, to create an obligation,
or to make a gift. 2. To appOint a representative.
dare ad remanentiam (dair-ee ad rem-a-nen-shee-am),
vb. [Latin "to give in fee or forever"] To transfer (esp. a
remainder) in fee or forever.
DARPA. abbr. DEFENSE ADVANCED RESEARCH PROJECTS
AGENCY.
darraign (d<l-rayn), vb. [fro Latin derationare; fro French
disrener] Hist. 1. To displace; to disarrange. 2. To
respond to an accusation; to settle a dispute. Also
spelled deraign; dereyne.
darrein (dar-ayn), adj. [fro French dernier "the last"]1be
last, as in darrein presentment ("the last presentment").
See DARREIN CONTINUANCE; assize ofdarrein present
ment under ASSIZE (8).
darrein continuance (dar-ayn kan-tin-yoo-<lnts), n. [fro
French dernier continuance "the last continuance")
Hist. Every plea of a new matter after the last entry of
a plea on the record. _ Every entry of a pleading after
the first pleading on the record was called a continu
ance. Also spelled dareyne continuance.
darrein presentment (dar-ayn pri-zent-m;mt), n. See
ASSIZE OF DARREIN PRESENTMENT.
darrein seisin (dar-ayn see-zin), n. [French "last seisin"]
Hist. A tenant's plea in a writ of right. See SEISIN.
database. A compilation of information arranged in a
systematic way and offering a means offinding specific
elements it contains, often today by electronic means.
Unless the intormation itself is original, a database is
not protected by U.S. copyright law. Elsewhere, it may
be protected as a distinct class of"literary works," or it
may be the subject ofsui generis intellectual-property
laws. See SWEAT-OF-THE-BROW DOCTRINE. [Cases:
Copyrights and Intellectual Property (;:=> 12(3).]
Database Directive. See DIRECTIVE ON THE LEGAL PRO
TECTION OF DATABASES.
data protection. Any method of securing informa
tion, esp. information stored on a computer, from
being either physically lost or seen by an unauthor
ized person.
date. 1. The day when an event happened or will happen
<date oftrial>. 2. A period oftime in general <at a later
date>. 3. An appointment at a specified time <no dates
are available>.
answer date. See answer day under DAY.
appearance date. See answer day under DAY.
cutoffdate. A deadline; esp., in the sale of a note or
other interest-paying asset, the last date on which
the seller is entitled to any interest due on the note
or asset.
date ofbankruptcy. (1809) Bankruptcy. The date when
a court declares a person to be bankrupt; the date of
bankruptcy adjudication . This date may coincide
with the voluntary-filing date. [Cases: Bankruptcy
(;:=>2202.]
date ofcleavage. Bankruptcy. The filing date of a vol
untary-bankruptcy petition. _ With a few exceptions,
only the debts existing at this time are discharge
able.
date ofinjury. (1831) Torts. The inception date of an
injury; the date of an accident causing an injury.
date ofinvention. Patents. For purposes of a patent
application, the date when the creation was reduced
to practice . Ifthe invention has not been built, the
date of invention is the date when the patent applica
tion is filed, since that is a constructive reduction to
practice. [Cases: Patents C='90(5).]
date ofissue. 1. Commercial law. An arbitrary date
(for notes, bonds, and other documents in a series)
fixed as the beginning of the term for which they
run; the date that a stock or bond bears on its face,
not the date on which it is actually signed, delivered,
or put into circulation. -When a bond is delivered
to a purchaser, it is considered "issued." But this
concept is distinguishable from the "date of issue,"
which remains fixed, regardless of the date of sale or
delivery. 2. Insurance. The date specified in the policy
as the date ofissue," not the date on which the policy is executed or delivered, and regardless ofother dates
that may be specified in the policy or elsewhere, such
as the date that the policy is to "take effect." [Cases:
Insurance C=,3125.J
date ofmaturity. Commercial law. The date when a
debt falls due, such as a debt on a promissory note
or bond. -Also termed maturity date. [Cases: Bills
and Notes (;:=> 129.]
date ofrecord. See record date (1).
declaration date. Corporations. The date when cor
porate directors declare a dividend. Cf. DIVIDEND
DATE; EX-DIVIDEND DATE. [Cases: Corporations
155(4).]
dividend date. See DIVIDEND DATE.
effective filing date. Patents. The date that a patent
application is considered to have been filed . The
actual filing date may be later, as for a continuing
application. But under the doctrine of continuity,
the child application is usu. entitled to the filing date
of the parent application to prove priority. -Also
termed parent filing date. See DOCTRINE OF CONTINU
ITY. [Cases: Patents
filing date. 1. Generally, the date when any document is
delivered to the appropriate authority. 2. Patents. The
date when a patent application is filed . The filing
date closes the door on prior art; starts the clock on
the period of eligibility to file in other countries; sets
the priority date for public use, disclosure, or sale; and
(absent other evidence) establishes the date of con
structive reduction to practice. [Cases: Patents (;:=>
90(5).] 3. Trademarks. The date when a trademark
application is filed. [Cases: Trademarks (;:=> 1367.]
maturity date. See date ofmaturity.
parentfiling date. See effective filing date.
payable date. Corporations. The official date on which
shareholder dividends or distributions become
payable. Also termed record date.
payment date. Corporations. The date on which stock
dividends or interest checks are paid to sharehold
ers.
priority date. Patents. The date that will determine
which applicant will get a patent in an interference
proceeding . The priority date is also the cut-off date
for prior art. In the Gnited States the priority date is
the date of invention; in the rest of the world it is the
date the patent application was filed. Cf. FIRST-TO
FILE, FIRST-TO-INVENT. [Cases: Patents (;:=>90(1).]
record date. Corporations. 1. The date on which a
stockholder must own shares to be entitled to vote
or receive a dividend. -Also termed date ofrecord.
See EX-DIVIDEND DATE. 2. See payable date. [Cases:
Corporations (;:=> 155(2), 155(4), 194, 197.]
settlement date. Securities. 1. The date on which an
investor must pay the broker for securities purchased.
2. Ihe date on which a seller must deliver negotiable
certificates for securities sold. 3. The date on which
a real-estate purchaser pays for and takes title to the
453
real estate. Cf. CLOSING. Vendor and Pur
chaserC=>74.]
submission date. 1. The date that a case is to be sub
mitted to a court for determination. 2. The date on
which an investor must pay the broker for securities
purchased. 3. The date on which a seller must deliver
negotiable certificates for securities sold.
date certain. A fixed or appointed day; a specified day,
esp. a date fixed by an instrument such as a deed. Cf.
TIME CERTAIN (1). Also termed (in French law) date
certaine (dat sair-tayn).
date of record. See record date under DATE.
date rape. See RAPE.
datio (day-shee-oh), n. [fro Latin dare "to give"] Roman
law. 1. An act ofgiving, as in datio in solutum ("giving
in payment"). 2. An appointment, as in datio tutoris
("appointment ofa guardian"). PI. dationes (day-shee
oh-neez).
datio in solutum (day-shee-oh in s<l-lly]oo-t<lm). Roman
law. The discharging ofan obligation by the giving and
acceptance ofsomething other than the thing due.
dation (day-sh<ln), n. [fr. Latin dare "to give"] Civil law.
A grant of something the recipient is actually entitled
to, such as an office.
dation en paiement (day-sh<ln in pay-m<lnt or da-syon
ahn pay-mon), n. [French "a giving in payment"] Civil
law. l. An exchange ofsomething instead of money to
satisfy a debt. See ACCORD AND SATISFACTION. [Cases:
Accord and Satisfaction 13.] 2. Louisiana law.
A contract in which the obligor gives a thing to the
obligee, who accepts it in payment of a debt. La. Civ.
Code art. 2655. _ Dation en paiement requires court
approval after petition and notice. 3. A method ofsat
isfying a mortgage debt by transferring the mortgaged
property when the mortgage exceeds the property's
value and the mortgage~holder is willing to accept the
property in satisfaction of the debt. [Cases: Mortgages
C=>304.]
dative (day-tiv), n. [fro French datif"of giving"]!. Roman
& civil law. An appointment made by judicial or mag
isterial authority; esp., something granted that is not
provided by law or a will. -In Scotland, an executor
dative is a court-appointed executor. 2. Hist. Some
thing that can be given or retracted at will, such as an
appointment to a nonperpetual office. Also spelled
datif.
dative curatorship. See dative tutorship under TUTOR
SHIP.
dative tutorship. See TUTORSHIP.
datum (day-t<lm), n. [fro Latin dare "to give"] 1. A piece
of information. PI. data. 2. Hist. Something given or
executed. 3. A date.
datus bonis (day-t<ls boh-nis). [Latin] Scots law. (Of a
person) appointed to manage an estate.
Daubert hearing (dah-b<lrt or doh-behr). A hearing con
ducted by federal district courts, usu. before trial, to day
determine whether proposed expert testimony meets
the federal requirements for relevance and reliability,
as clarified by the Supreme Court in Daubert V. Merrell
Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).
[Cases: Criminal Law Cr~'472, 481, 486; Evidence C:::)
508,546,
Daubert test. (1993) Evidence. A method that federal
district courts use to determine whether expert testi
mony is admissible under Federal Rule of Evidence 702,
which generally requires that expert testimony consist
ofScientific, technical, or other specialized knowledge
that will assist the fact-finder in understanding the
evidence or determining a fact in issue. -In its role
as "gatekeeper" of the evidence, the trial court must
decide whether the proposed expert testimony meets
the requirements ofrelevance and reliability. The court
applies the test outside the jury's presence, usu. during a
pretrial Daubert hearing. At the hearing, the proponent
must show that the expert's underlying reasoning or
methodology, and its application to the facts, are sci
entifically valid. In ruling on admissibility, the court
considers a flexible list offactors, including (1) whether
the theory can be or has been tested, (2) whether the
theory has been subjected to peer review or publica
tion, (3) the theory's known or potential rate of error
and whether there are standards that control its opera
tion, and (4) the to |
3) the theory's known or potential rate of error
and whether there are standards that control its opera
tion, and (4) the to which the relevant scientific
community has accepted the theory. Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).
Similar scrutiny must be applied to nonscientific expert
testimony. Kumho Tire CO. V. Carmichael, 526 U.S. 137,
119 S.Ct. 1167 (1999). Variations of the Daubert test
are applied in the trial courts of most states. [Cases:
Criminal Law C=>472, 481, 486; Evidence C=>508, 546,
555.]
daughter. A parent's female child; a female child in a
parent-child relationship.
daughter-in-law. The wife ofone's son.
Davis-Bacon Act. A federal law originally enacted in
1931 to regulate the minimum-wage rates payable to
employees of federal public-works projects. 40 USCA
276a.
day. (bef. 12c) l. Any 24-hour period; the time it takes
the earth to revolve once on its axis <we have a day
to prepare a mandamus petition>. [Cases: Time C=>
8.] 2. The period between the and the setting of
the sun <day or night>. Also termed natural day. 3.
Sunlight <we can see it in the day>. 4. The period when
the sun is above the horizon, along with the period in
the early morning and late evening when a person's
face is discernible. 5. Any specified time period, esp. as
distinguished from other periods <the good old days>
<a day's work>. -Also termed (in senses 2-4) daytime.
Cf. NIGHT.
adjournment day. 1. 'Ihe day on which an organiza
tion, such as a court or legislature, adjourns. 2. Hist.
A later day appointed by the judges at regular sittings
at nisi prius to try an issue of fact not then ready for
trial.
adjournment day in error. Hist. A day scheduled for
completion ofmatters not finished on the affirmance
day ofthe term.
affirmance day general. Hist. In the Court of Exche
quer, a day appointed after the beginning of every
term to affirm or reverse judgments.
answer day. (lS59) Civil procedure. The last day for a
defendant to file and serve a responsive pleading in
a lawsuit. Under the Federal Rules of Civil Proce
dure, a defendant generally must serve an answer (1)
within 20 days after being served with the summons
and complaint, or (2) if a defendant timely waives
service at the plaintiff's request, within 60 days after
the request for waiver was sent. Fed. R. Civ. P. 4(d),
12(a). -Also termed answer date; appearance date;
appearance day.
artificial day. The period from the rising to the setting
of the sun. -Also termed solar day; civil day; dies
solaris.
astronomical day. See solar day (2).
banking day. See BANKING DAY.
business day. A day that most institutions are open for
business, usu. a day on which banks and major stock
exchanges are open, excluding Saturdays, Sundays,
and certain major holidays.
calendar day. A consecutive 24-hour day running from
midnight to midnight. -Also termed natural day.
[Cases: Time C=>S.]
civil day. See artificial day.
clear day. One ofmany full, consecutive days between
(1) the date when a period, measured in days, begins
and (2) the date when an event that ends the period
occurs. For example, if a statute or contract requires
a party to give another party five clear days of notice
ofa hearing, and the hearing is scheduled to be held
on the 31st day ofthe month, the party giving notice
must do so by the 25th day of the month so that five
full (clear) days elapse between but not including the
25th and 31st. [Cases: Time C=>S, 9(1).]
common day. In England, an ordinary court day.
court day. A day on which a particular court is open
for court business. See Fed. R. Civ. P. 6(a); Fed. R.
Crim. P. 45(a).
day ofdemurrage. Maritime law. A day beyond the
days allowed for loading or unloading cargo . A fine
is usu. assessed for each day of delay. See DEMURRAGE.
Cf. LAYDAY. [Cases: Shipping C=> lS3.]
dedication day. Hist. A day on which people from
several villages gathered in one place to celebrate the
feast day of the saint and patron ofa church.
entire day. An undivided day, rather than parts oftwo
or more days aggregated to form a 24-hour period .
An entire day must have a legal, fixed, precise time
to begin and end. A statute referring to an entire day
contemplates a 24-hour period beginning and ending
at midnight. [Cases: Time C=>S.] ferial day (feer-ee-<:ll). Hist. 1. A day free from labor,
pleading, and service of process; a holiday. 2. A
working day, under a 1449 statute (27 Hen. 6, ch. 5).
juridical day (juu-rid-i-k<:ll). (17c) A day on which legal
proceedings can be held. -Also termed judicial day.
Cf. nonjudicial day; NONJURIDICAL.
law day. See LAW DAY.
lay day. See LAYDAY.
legislative day. A day that begins when a legislative
body reconvenes after a recess or adjournment, and
ends when the body next recesses or adjourns until a
different calendar day . A legislative day may extend
over several calendar days. [Cases: States C=>32.]
love day. Hist. 1. A day when neighbors amicably
settled a dispute. 2. A day when one neighbor helped
another without payment.
natural day. 1. The 24-hour period from midnight to
midnight. -Also termed calendar day. [Cases: Time
C=>S.] 2. The period between sunrise and sunset.
Also termed artificial day.
nonjudicial day. (lSc) A day when courts do not sit or
when legal proceedings cannot be conducted, such as
a Sunday or legal holiday. See LEGAL HOLIDAY; NON
JURIDICUS. Cf. juridical day. [Cases: Time C=>S.]
peremptory day. (16c) A day assigned for trial or
hearing, without further opportunity for postpone
ment.
quarter day. Hist. One offour days during a year that
money owed (such as rent) was legally or customar
ily payable . In England and Wales the quarter days
are Lady Day, March 25; Midsummer Day, June 24;
Michaelmas Day, September 29; and Christmas Day,
December 25. In Scotland the traditional quarter
or term days are Candlemas, February 2; Whitsun
day (or Whitsuntide), May 15; Lammas, August 1;
and Martinmas, November 11. Scotland's statutory
quarter or term days are the 2Sth of February, May,
August, and November. Ifa document specifies a dif
ferent date for a quarter day, then the specified date
controls. -Also termed (in Scots law) term day.
return day. (17c) 1. A day on which a defendant must
appear in court (as for an arraignment). 2. A day on
which a defendant must file an answer. 3. A day on
which a proof ofservice must be returned to court.
Also termed rule day. [Cases: Federal Civil Procedure
C=>512; Process C=> 131.]4. A day on which a writ of
execution must be returned to court. [Cases: Execu
tion C=> 333.] 5. A day specified by law for counting
votes in an election. -Also termed return date.
[Cases: Elections C=> 126(7),241.]
solar day. 1. See artificial day. 2. The 24-hour period
from noon to noon. -Also termed astronomical
day.
term day. Scots law. See quarter day.
daybook. A merchant's original record of daily trans
actions.
455
day fine. See FINE (5).
day in court. (16c) 1. The right and opportunity, in a
judicial tribunal, to litigate a claim, seek relief, or
defend one's rights. 2. The right to be notified and given
an opportunity to appear and to be heard when one's
case is called.
day loan. See LOAN.
day ofdemurrage. See DAY.
day order. See ORDER (8).
day rule. See DAY WRIT.
days in bank. Particular days set aside by the Court
of Commbn Pleas for specific matters, including the
appearance of parties and service of process. -Also
termed dies in banco.
"There are in each of these terms stated days called days
in bank, dies in banco; that is, days of appearance in the
court of common pleas. They are generally at the distance
of about a week from each other, and regulated by some
festival of the church. On some one of these days in bank
all original writs must be made returnable ...." 3 William
Blackstone, Commentaries on the Laws of England 277
(1768).
daysman (dayz-m;m). Hist. 1. An arbitrator; an elected
judge; an umpire. 2. A day laborer. -Also spelled
deiesman.
days ofgrace. 1. GRACE PERIOD (1). 2. Int'llaw. A timed
exemption from prize law that is granted to enemy
merchant ships when they are caught unawares by the
outbreak ofwar.
daytime. 1. See DAY (2). 2. See DAY (3). 3. See DAY (4).
day trading. See TRADING.
daywork. 1. Short-term employment that is intended to
last only for a day, or for a few days. 2. Hist. In England,
a measure ofland being the amount ofarable land that
can be plowed in a day. -Also termed daywere.
daywork drilling contract. Oil & gas. A contract under
which the lease operator hires a drilling rig and oilfield
workers, pays an amount based on the time spent in
drilling operations, and retains the right to direct
drilling operations . This type of contract gives the
lease operator broad control over the drilling contrac
tor, so courts in turn impose broad liability on the lease
operator for any damages that result from the drilling.
Cf. FOOTAGE DRILLING CONTRACT; TURNKEY DRILLING
CONTRACT.
day writ. English law. A Queen's Bench writ allowing
a prisoner to leave prison to conduct business (such
as attending trial at the Court of Assizes), as long as
the prisoner returns by 9:00 p.m. -Also termed day
rule.
D.B. abbr. DOMESDAY BOOK.
d/b/a. abbr. Doing business as . The abbreviation usu.
precedes a person's or business's assumed name <Paul
Smith d/b/a Paul's Dry Cleaners>. It signals that the
business may be licensed or incorporated under a dif
ferent name. Cf. TRADENAME.
d.b.e. abbr. DE BENE ESSE. Deadbeat Parents Punishment Act
d.b.n. abbr. See administration de bonis non under
ADMINISTRATION.
d.b.n.c.t.a. abbr. See administration de bonis non cum
testamento annexo under ADMINISTRATION.
DBO. abbr. Death benefit only. See survivor's income
benefit plan under EMPLOYEE BENEFIT PLAN.
D.C. abbr. 1. DISTRICT OF COLUMBIA. 2. See district court
(1) under COURT.
DCAA. abbr. DEFENSE CONTRACT AUDIT AGENCY.
DCF. See discounted cash flow under CASH FLOW.
DCMA. abbr. DEFENSE CONTRACT MANAGEMENT
AGENCY.
DDoS. abbr. DISTRIBUTED DENIAL-OF-SERVICE
ATTACK.
DDP. abbr. 1. DELIVERED DUTY PAID. 2. DISCLOSURE
DOCUMENT PROGRAM.
DDU. abbr. DELIVERED DUTY UNPAID.
de (da or duu). [French] Of; about. This is a French
preposition often used to show the genitive case, as in
brefe de droit ("writ ofright").
de (dee or day). [Latin] Of; about; concerning; respecting;
by; from; out of; affecting. This preposition is used
in the titles ofEnglish statutes, oforiginal and judicial
writs, and of court proceedings.
deacon. Eccles. law. 1. In certain churches, a member
of the clerical order who assists the priest in various
duties, including the presentation of the sacrament.
It is the third order below bishops and priests. A
deacon is not allowed to consecrate the Holy Commu
nion or pronounce absolution but can perform most
ofthe other priestly duties. 2. An elected or appointed
officer of a church who assists a minister or priest in
various duties.
dead-and-buried company. See COMPANY.
dead asset. See ASSET.
deadbeat. (1863) Slang. A person who does not pay
debts or financial obligations (such as child-support
payments, fines, and legal judgments), usu. with the
suggestion that the person is also adept or experienced
at evading creditors.
deadbeat dad. (1983) Slang. A father who has not paid
or who is behind in making child-support payments.
[Cases: Child Support C=>650, 653.]
deadbeat mom. (1987) Slang. 1. A mother who has
not paid or who is behind in making child-support
payments. This term is used far less frequently than
either deadbeat |
not paid or who is behind in making child-support
payments. This term is used far less frequently than
either deadbeat dad or deadbeat parent, probably
because nearly ten times as many men as women fail
to support (or are ordered to support) their children
financially after divorce. 2. An able-bodied mother
whose income is derived from welfare payments, not
from gainful employment. [Cases: Child Support C=>
650,653.]
Deadbeat Parents Punishment Act. A 1998 federal
statute that makes it a felony, punishable by up to two
456 deadborn
years in prison, for failure to pay child support if the
obligor has crossed state lines in an attempt to avoid
paying the support. The Act provides felony penal
ties if(l) a person travels across state lines intending to
evade a child-support obligation that is over $5,000 or
that has remained unpaid longer than one year, or (2)
a person willfully fails to pay support for a child living
in a different state if that obligation is greater than
$10,000 or ifit remains unpaid for more than two years.
The Act supersedes the Child Support Recovery Act
of 1994. The greatest change in the new statute is the
provision regarding the obligor's crossing ofstate lines
in an eff.ort to evade the support obligation. 42 USCA
228. -Abbr. DPPA. See CHILD SUPPORT RECOVERY
ACT OF 1994. [Cases; Child Support (>650, 653.]
deadborn. See STILLBORN.
dead corporation. See dissolved corporation under COR
PORATION.
dead freight. See FREIGHT.
deadhand control. (1952) The convergence of various
legal doctrines that allow a decedent's control ofwealth
to influence the conduct of a living beneficiary; esp., the
use of executory interests that vest at some indefinite
and remote time in the future to restrict alienability
and to ensure that property remains in the hands of a
particular family or organization . Examples include
the lawful use of conditional gifts, contingent future
interests, and the Claflin-trust principle. The rule
against perpetuities restricts certain types ofdeadhand
control, which is sometimes referred to either as the
power of the mortua manus (dead hand) or as trying
to retain property in mortua manu. See RULE AGAINST
PERPETUITIES.
dead letter. 1. A law or practice that, although not
formally abolished, is no longer used, observed, or
enforced. 2. A of mail that can be neither deliv
ered nor returned because it lacks correct addresses
for both the intended recipient and the sender. [Cases:
Postal Service
deadlock, n. 1. A state ofinaction resulting from oppo
sition, a lack ofcompromise or resolution, or a failure
of election. See tie vote under VOTE (2). 2. Corpora
tions. The blocking ofcorporate action by one or more
factions of shareholders or directors who disagree
about a Significant aspect of corporate policy. [Cases:
Corporations C=>553(5), 592.) -deadlock, vb.
deadlocked jury. See hungjury under JURY.
deadly force. See PORCE.
deadly weapon. See WEAPON.
deadly weapon per se. See WEAPON.
dead man's part. Archaic. 1. !lrchaic. By custom in
certain places, the portion of a dead man's estate set
aside for mass services; later, that portion set aside as
payment for the administrator . That portion ranged
from one-third (if the deceased had a wife and children)
to the entire estate (if the deceased had no wife or
children). "'If the deceased leaves a Widow and children, his sub
stance ... is divided into three parts; one of which belongs
to the Widow, another to the children, and the third to
the administrator: if only a widow, or only children, they
shall respectively, in either case, take one moiety, and the
administrator the other: if neither widow nor child, the
administrator shall have the whole. And this portion, or
dead man's part, the administrator was wont to apply to
his own use, till the statute Ijac. II. c. 17 declared that the
same should be subject to the statute of distributions." 2
William Blackstone, Commentaries on the Laws ofEngland
518 (1766).
"If a testator leaves neither Wife nor child, he can give away
the whole of his movable goods. If the testator leaves wife
but no child, or child but no wife, his goods must, after his
debts have been paid, be divided into two halves; one of
these can be disposed of by his will, it is 'the dead's part;
the other belongs to the widow, or (as the case may be) to
the child or children." 2 Frederick Pollock & Frederic William
Maitland, History ofEnglish Law Before the Time ofEdward
1349 (2d ed. 1899).
2. Scots law. The part of the movable estate that may
be disposed of by will in any way the testator wishes;
specif., the of a dead man's personal estate not
legally reserved for his spouse or children and capable
ofbeing bequeathed by will or falling upon intestacy to
his next-of-kin. Also termed dead's part.
dead man's statute. (1879) A law prohibiting the admis
sion of a decedent's statement as evidence in certain
circumstances, as when an opposing party or witness
seeks to use the statement to support a claim against the
decedent's estate. Also termed dead person's statute.
[Cases; Witnesses 0='125.]
dead marriage. See MARRIAGE (1).
de admensuratione do tis (dee ad-men-s[y)uu-ray-shee
oh-nee doh-tis), n. [Law Latin "of the admeasurement
ofdower"] See admeasurement ofdower under ADMEA
sUREMENT.
dead person's statute. See DEAD MAN'S STATUTE.
dead pledge. Archaic. See MORTGAGE (1).
dead rent. A mining-lease payment, either in addition to
or as part of the royalty, that must be made whether or
not the mine is working. The purpose ofthe provision
is to secure the working of the mine. See delay rental
under RENTAL [Cases; Mines and Minerals 0=70.)
dead-ship doctrine. Maritime law. The rule that admi
ralty law no longer applies to a ship when its purpose
has been so changed that it is no longer a vessel because
it has no further naVigation function. [Cases; Admi
ralty
dead's part. See DEAD MAN'S PART.
dead stock. Goods that remain in inventorv because
there is no market for them. '
dead storage. The stowage of goods, esp. motor vehicles,
for a long time in a public storage area, as opposed to
the daily or regular stowage ofgoods in active use. Cf.
LIVE STORAGE. [Cases; Insurance (;=.2278(13).]
dead time. See TIME.
dead use. A future use.
457
de advisamento consilii nostri (dee ad-vl-z<l-men-toh
k<ln-sil-ee-l nos-tn). [Law Latin] With or by the advice
ofour council. This phrase was formerly used in writs
ofsummons to Parliament.
de aequitate (dee ee-kw<l-tay-tee). [Latin] In equity.
de aestimato (dee es-ti-may-toh). [Latin "for the estima
tion of something in money"] Roman law. An action
available to an owner of goods against a person who
received the goods but failed, after a certain period, to
either pay the owner an agreed price after finding a pur
chaser or return the goods to the owner . The transac
tion, or aestimatum, was an innominate contract often
used by traveling merchants or second-hand dealers
who, after purchasing items, could then resell them
at higher prices or return them to the owner. Also
termed actio aestimatoria.
de aetate probanda (dee ee-tay-tee proh-ban-d<l), n. [Law
Latin "of (about) proving age"] Hist. A writ ordering the
sheriff to summon a jury to determine whether an heir
ofa tenant holding an estate directly ofthe Crown was
old enough to receive the estate.
deafforest. See DISAFFOREST.
deal, n. (15c) 1. An act of buying and selling; the purchase
and exchange ofsomething for profit <a business deal>.
2. An arrangement for mutual advantage <the witness
accepted the prosecutor's deal to testify in exchange
for immunity>. 3. An indefinite quantity <a great deal
of money>.
deal, vb. (bef. 12c) 1. To distribute (something) <to deal
drugs>. 2. To transact business with (a person or entity)
<to deal with the competitor>. 3. To conspire with (a
person or entity) <to deal for the account>.
dealer, n. (l7c) 1. A person who purchases goods or
property for sale to others; a retailer. 2. A person or
firm that buys and sells securities for its own account
as a principal, and then sells to a customer. See DEAL,
n. & vb.
broker-dealer. See broker-dealer under BROKER.
registered dealer. A dealer registered or required to be
registered under the Securities Exchange Act of1934.
[Cases: Securities Regulation C=:40.10-40.16.]
dealer's talk. See PUFFING (1).
de allocatione facienda (dee al-<l-kay-shee-oh-nee fay
shee-en-d<l), n. [Law Latin "for making allowance"]
Hist. A writ directed to the treasurer and barons ofthe
Exchequer allowing certain officers (such as accoun
tants and customs collectors) to have in their accounts
the funds necessary to make certain payments.
de alode parentum (dee al-<l-dee p<l-ren-t<lm). [Law
Latin] Hist. From freehold of one's parents.
"De alode parentum. lands descending by inheritance
from parents were said to be so acquired, in contradistinc
tion to lands held in feu ... and to those acquired by a
singular title. Subsequently the phrase acquired a more
comprehensive signification, as all lands were, in process
of time, termed allodial, in which the holder had a right of
absolute property, without rendering any service therefor,
or recognising any superior therein, and of which he had de apostata capiendo
an unlimited power of disposal." John Trayner, Trayner's
Latin Maxims 137 (4th ed. 1894).
de alto et basso (dee al-toh et bas-oh), n. [Law Latin "of
high and low"] Hist. The total submission ofall differ
ences -great or small -to arbitration.
de ambitu (dee am-bi-tyoo). [Latin "of going around"]
Ofdevious methods ofsecuring a position, as through
bribery. -Several Roman laws (such as the Lex Julia de
Ambitu) dealt with these methods, such as prohibiting
electoral bribery.
de ampliori gratia (dee am-plr-or-l gray-shee-<:l). [Latin]
Of more abundant or more full grace.
dean. 1. Eccles. law. An officer who leads a chapter,
parish, or other subdivision of a diocese, usu. upon a
bishop's request or appointment.
"A dean and chapter are the council of the bishop, to assist
him with their advice in affairs of religion, and also in the
temporal concerns of his see .... All ancient deans are
elected by the chapter. by conge d'eslire from the king, and
letters missive of recommendation; in the same manner
as bishops: but in those chapters, that were founded by
Henry VIII out of the spoils of the dissolved monasteries,
the deanery is donative .... The chapter, consisting of
canons or prebendaries, are sometimes appointed by the
king, sometimes by the bishop, and sometimes elected by
each other." 1 William Blackstone, Commentaries on the
Laws ofEng/and 370-71 (1765).
2. In a school, college, or university, the administra
tive or academic head . In larger schools, there may
be several kinds of deans, such as a dean of admis
sions and a dean ofstudent affairs. Within a university,
there may be deans ofspecific schools. [Cases: Colleges
and Universities <>:)7.] 3. The head or commander ofa
group of ten, such as ten soldiers or ten monks.
de anna bissextili (dee an-oh bis-sek-stI-h), n. [Law
Latin "of the bissextile year"] Hist. A law of III
advising the justices ofthe bench that in a case requir
ing something to be done within a year, the leap-year
day and the day before should be counted as one day.
de annua pensione (dee an-yoo-" pen-shee-oh-nee),
n. [Law Latin "of annual pension"] Hist. A royal writ
demanding payment from an abbey or prior, ofa yearly
pension for the king's chaplain named in the writ.
de annuo reditu (dee an-yoo-oh red-Hyoo), n. [Law
Latin "for a yearly rent"] Hist. A writ to recover an
annuity payable in goods or money.
Dean ofGuild. Scot's law. In certain burghs, the head of
the Guild or Merchant Company, with jurisdiction in
maritime and mercantile disputes.
Dean ofGuild Court. Scots law. The court presided over
by the Dean of Guild . In modern times the court
dealt with municipal affairs, esp. building regulations.
All such courts were abolished in 1975.
Dean of the Arches. English law. The presiding judge of
the Court of Arches. See COURT OF ARCHES.
de apostata capiendo (dee <l-pos-t<l-t<:l kap-ee-en-doh), |
de apostata capiendo (dee <l-pos-t<l-t<:l kap-ee-en-doh),
n. [Law Latin "of the taking of an apostate"] Hist. A writ
ordering a sheriff to apprehend and return to a monas
terya person who had entered the monastery, professed
the religious order, and then left and wandered around
the country.
de arbitratione facto (dee ahr-bi-tray-shee-oh-nee fak
toh), n. [Law Latin "of arbitration had"] Rist. A writ
staying an action already settled by arbitration.
de arrestandis bonis ne dissipentur (dee ar-~-stan-dis
boh-nis nee dis-~-pen-t~r), n. [Law Latin "of goods
arrested lest they be dispersed"] Rist. A writ to seize
goods from a party to ensure that the goods do not
disappear while a lawsuit is pending.
de arrestando ipsum qui pecuniam recepit (dee ar-~
stan-doh ip-s~ kwr p~-kyoo-nee-~m ri-see-pit), n. [Law
Latin "for the apprehension ofone who took the king's
money"] Rist. A writ ordering the arrest of a person
who took the king's money for war service, and then
hid to keep from serving.
de asportatis religiosorum (dee as-por-tay-tis ri-lij-ee
oh-sor-~m), n. [Law Latin "concerning the property
of religious persons carried away"] Rist. A statute of
Edward I passed to curb alienation of clerical posses
sions, including the removal of those possessions to
foreign countries.
de assisa proroganda (dee J-SI-Z~ proh-r~-gan-dJ), n.
[Law Latin "of the proroguing of an assize"] Rist. A
writ ordering justices to postpone an assize because a
party is busy in the Crown's service.
death. (bef. 12c) The ending of life; the cessation of all
vital functions and signs. -Also termed decease;
demise.
accidental death. A death that results from an unusual
event, one that was not voluntary, intended, expected,
or foreseeable. Also termed death by misadven
ture.
brain death. (1964) The bodily condition of showing
no response to external stimuli, no spontane
ous movements, no breathing, no reflexes, and a
flat reading (usu. for a full day) on a machine that
measures the brain's electrical activity . In 1971,
Kansas became the first state to enact a statutory
definition of the term. Before that, heart transplants
raised the question ofwhen -and whether -death
had occurred. Early cases dealing with this problem
include a tort case (wrongful death), Tucker v. Lower,
No. 2831 (Richmond, Va., L. & Eq. Ct., May 23,1972)
(jury accepted the defendants' definition of brain
death); a criminal case (vehicular homicide), People
v. Flores, No. 20190 (Sonoma Co. Mun. Ct. Dec. 19,
1973), No. N746-C (Sonoma Co. Super. Ct. July 23,
1974) (defendant acquitted because no statute defined
brain death); and a criminal case (murder), People v.
Lyons, IS Crim. L. Rep. 2240, No. 56072 (Alameda Co.
Super. Ct. May 21, 1974) (court accepted prosecutor's
definition of brain death and convicted defendant).
[Cases: Death ~1.] -Also termed legal death.
civil death. 1. Archaic. At common law, the loss of
rights such as the rights to vote, make contracts,
inherit, and sue -by a person who has been outlawed
or convicted ofa serious crime, or who is considered to have left the temporal world for the spiritual by
entering a monastery. Cf. DE CATALLIS FELONUM.
Convicts ~1.]
"In one large department of law the fiction [civil deathl is
elegantly maintained. A monk or nun can not acquire or
have any proprietary rights. When a man becomes 'pro
fessed in religion,' his heir at once inherits from him any
land that he has, and, if he has made a will, it takes effect
at once as though he were naturally dead." 1 Frederick
Pollock & Frederic W. Maitland, History ofEnglish Law 434
(2d ed. 1898),
"Civil death arises from outlawry; it seems doubtful
whether there are any other circumstances to which the
phrase is now applicable." William R. Anson, Principles of
the Law of Contract 193 n.(b) (Arthur L. Corbin ed" 3d
Am, ed. 1919),
2. In some states, the loss of rights -such as the
rights to vote and hold public office by a person
serving a life sentence. Cf. civil disability under DIS
ABILITY (3). [Cases: Officers and Public Employees
3. The state of a corporation that has formally
dissolved or become bankrupt, leaving an estate to
be administered for the benefit of shareholders and
creditors. Also termed (in senses 2 & 3) legal death.
[Cases: Corporations ~617(1).]
compensable death. Workers' compensation. A death
that, because it occurred in the course of employment,
entitles the employee's heirs to compensation. [Cases:
Workers' Compensation C=',408-51O.J
death by one's own hand. See S'GICIDE (1).
immediate death. (16c) 1. See instantaneous death. 2.
A death occurring within a short time after an injury
or seizure, but not instantaneously.
"A distinction has been made between 'instantaneous'
and 'immediate' death .... As an example of 'immedi
ate' rather than 'instantaneous' death the situation in
which a blow on the head produces unconsciousness and
renders the victim incapable of intelligent thought, speech,
or action for several minutes until he dies." 22AAm.Jur. 2d
Death 43. at 159 (1988).
instantaneous death. (lSc) Death occurring in an
instant or within an extremely short time after an
injury or seizure. -It is a factor in determining an
award of damages for the victim's pain and suffer
ing. Sometimes also termed immediate death.
"Although the possibility of a death that is truly simultane
ous with the injury that caused it has been denied, it has
been pointed out that death may be so contemporaneous
with the fatal injury as to be instantaneous in the sense that
there could be no recovery for the victim's pain and suffer
ing. Ordinarily, death is not regarded as instantaneous if
an appreciable length of time elapsed between the injury
and the death. Indeed, even where the injury causing the
death is necessarily fatal and death results therefrom in
a few moments, it has been held that although it would
commonly be called an instantaneous death, still if the
injured person survives the injury for a brief period, it may
not be said that the death is instantaneous .... In such
case it is immaterial that the period of time between the
injury and death is short." 22A Am. Jur. 2d Death 43, at
158 (1988).
legal death. 1. See brain death. 2. See civil death (2). 3.
See civil death (3).
459
natural death. (l5c) L Bodily death, as opposed to civil
death. 2. Death from causes other than accident or
violence; death from natural causes. -Also termed
mars naturalis. See ~ATURAL-DEATH ACT. Cf. violent
death.
presumptive death. (1856) Death inferred from proof
of the person's long, unexplained absence, usu. after
seven years. See ENOCH ARDEN LAW. [Cases: Death
C=::o 1, 2.]
simultaneous death. (1878) The death of two or more
persons in the same mishap, under circumstances
that make it impossible to determine who died first.
See UNIFORM SIMULTANEOUS DEATH ACT; COMMON
DISASTER; COMMORIENTES.
violent death. (l6c) Death accelerated by human inter
vention and resulting from a sharp blow, explosion,
gunfire, or the like. Cf. natural death.
death, contemplation of. See CONTEMPLATION OF
DEATH.
death action. See WRONGFUL-DEATH ACTION.
deathbed declaration. See dying declaration under DEC
tARATION (6).
deathbed deed. See DEED.
death benefit. See BENEFIT.
death-benefit-only plan. See survivor's income benefit
plan under EMPLOYEE BENEFIT PLAN.
death by misadventure. 1. See ACCIDENTAL KILLING.
2. See accidental death under DEATH. 3. Archaic. A
defense to a murder charge on the ground that the
defendant lacked the requisite mental state for murder.
-The defense was abolished as redundant because the
prosecution had to prove state of mind anyway as an
essential element of murder.
death by one's own hand. See SUICIDE (1).
death case. (1907) 1. A criminal case in which the death
penalty may be or has been imposed. 2. WRONGFUL
DEATH ACTION.
death certificate. (1888) An official document issued by
a public registry verifying that a person has died, with
information such as the date and time of death, the
cause of death, and the signature of the attending or
examining physician. [Cases: Health C=::o398.]
death-damage statute. Archaic. See WRONGFUL-DEATH
STATUTE.
death duty. 1. See DUTY (4). 2. See estate tax under TAX.
death-knell doctrine. (1972) A rule allowing an inter
locutory appeal if precluding an appeal until final
judgment would moot the issue on appeal and irrep
arably injure the appellant's rights. -Once recog
nized as an exception to the final-judgment rule, the
doctrine was limited by the U.S. Supreme Court in
Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct.
2454 (1978). There, the Court held that the death-knell
doctrine does not permit an immediate appeal of an
order denying class certification. But the doctrine still
applies in some contexts. For example, the doctrine de averiis captis in withernamium
allows an immediate appeal of the denial of a tem
porary restraining order when the lack of an appeal
would leave nothing to be considered in the trial court.
Woratzeck v. Arizona Rd. ofExecutive Clemency, 117
F.3d 400 (9th Cir. 1997). -Also termed death-knell
exception. Cf. FINAL-JUDGMENT RULE. [Cases: Appeal
and Error (;;:::>68,73(2); Federal Courts (;::;572.1.]
Death on the High Seas Act. A federal law, enacted in
1920, permitting a wrongful-death action to be filed
in U.S. district court for a death occurring on the
high seas. 46 USCA app. 761-67. Abbr. DOHSA.
[Cases: Death (;~~7, 13.]
death penalty. (1848) 1. CAPITAL PUNISHMENT. 2. A
penalty that makes a person or entity ineligible to par
ticipate in an activity that the person or entity
ously participated in. -The penalty is usu. imposed
because ofsome type ofgross misconduct. 3. See death
penalty sanction under SANCTION.
death-penalty sanction. See SANCTION.
death-qualified jury. See JURY.
death row. (1950) The area ofa prison where those who
have been sentenced to death are confined.
death sentence. See SENTENCE.
deathsman. An executioner; a hangman.
death-spiral deal. A convertible security for which the
conversion price depends on the market price less a
percentage discount on the date of conversion. Also
termed toxic convert.
death statute. (1910) A law that protects the interests
of a decedent's family and other dependents, who
may recover in damages what they would reasonably
have received from the decedent if the death had not
occurred. Cf. SURVIVAL STATUTE. [Cases: Death
7,10.]
death tax. l. See estate tax under TAX. 2. See inheritance
tax under TAX.
death trap. (1835) 1. A structure or situation involVing
an imminent risk ofdeath. 2. A situation that, although
seemingly safe, is actually quite dangerous.
death warrant. See WARRANT (1).
de attornato recipiendo (dee a-tor-nay-toh ri-sip-ee-en
doh), n. [Law Latin "of receipt ofan attorney"] Hist. A
writ requiring a court to receive and admit an attorney
for a party.
de audiendo et terminando (dee aw-dee-end-doh et
tar-mi-nan-doh), n. [Law Latin "for hearing and deter
mining"] Hist. A writ or commission directing certain
justices to hear and resolve particular cases resulting
from a riot, including those involving heinous misde
meanors, breaches ofthe peace, and trespass. Cf. COM
MISSION OF OYER AND TERMINER.
de averiis cap tis in withernamium (dee <'l-veer-ee-is
kap-tis in with-<'lr-nay-mee-<'lm), n. [Law Latin "for
taking cattle in withernam"] Hist. A writ directing a
sheriff to detain a defendant's cattle because the defen
dant had unlawfully taken the plaintiff's cattle out of
460 de averiis replegiandis
the county. -The defendant's cattle would be detained |
of
460 de averiis replegiandis
the county. -The defendant's cattle would be detained
until the sheriff could replevy the plaintiff's cattle.
de averiis replegiandis (dee a-veer-ee-is ri-plee-jee
an-dis), n. [Law Latin "of replevying beasts") Hist. A
writ ordering a sheriff to replevy someone's beasts or
chattels that had been unlawfully taken and detained.
-This is the old writ of replevin.
de banco (dee or dd bang-koh). [Law Latin] Ofthe bench.
-In England, the term applied to justices of the Court
ofCommon Pleas.
debarment, n. The act of precluding someone from
having Qr doing something; exclusion or hindrance.
debar, vb.
debasement. (l7c) 1. The act of reducing the value,
quality, or purity of something; esp., the act oflowering
the value of coins by either reducing the weight of
gold and silver in the coins or increasing the coins'
alloy amounts. 2. Degradation. 3. The state of being
degraded.
debate. Parliamentary law. Formal consideration of a
motion's merits in the form of speeches for, against, or
otherwise addressing the motion. See CONSIDERATION
(2). debatable, adj. -debatability, n.
controlled debate. Debate in which designated
managers, usu. a partisan leader, lead each side and
allot time for speeches. -Also termed controlled
time.
extended debate. Debate that continues beyond an oth
erwise applicable limit. See EXTEND DEBATE.
floor debate. (1884) The legislative process ofdebating
a proposed bill before an entire chamber rather than
before a committee. [Cases: States (;'::::,32.]
limited debate. Debate with restrictions. See LIMIT
DEBATE.
pro-con debate. A debate that adheres to the parlia
mentary principle that speeches should alternate
between opposing viewpoints. -Sometimes those
seeking the floor on one side outnumber those on
the other side, in which case the chair may allow two
(or more) speeches in a row on the same side of the
question.
debate agenda. See debate calendar under CALENDAR
(4).
debate calendar. See CALENDAR (4).
debauch (di-bawch), vb. 1. Archaic. To draw (a person)
away from duty; to lead (a person) astray. 2. To corrupt
(a person) with lewdness; to seduce (someone). 3. To
mar or spoil (a person or thing).
debauchery (di-bawch-<l-ree), n. Excessive indulgence
in sensual pleasures; sexual immorality or excesses.
debauch, vb.
debellatio (deb-a-Iay-shee-oh). [Latin] Int'llaw. A means
of ending a war and acquiring territory when one of
the belligerent countries has been so soundly defeated
that its adversary is able to decide alone the fate of the defeated country's territory; conquest followed by
annexation. -Also termed subjugation.
"[There are] three possible alternative meanings of debel
iatio in international law. The first is that debellatio denotes
the change wrought by the conquest and total subjuga
tion of a State together with that State's annexation by the
conqueror. The second view is that debellatio corresponds
to the total defeat of an enemy State, its occupation, and
the elimination of a vital component of Statehood; in this
view, debellatio implies the extinction of the old State, but
it leaves open the legal future of the occupied territory
(annexation or the founding of one or more new States).
The third view is that debellatio only describes a factual sit
uation and that even the elimination of all the State organs
combined with the occupation of the territory does not
exclude the continuing existence of that State. It is mainly
the second and the third meanings of debeflatiowhich have
been advocated for the situation of Germany since the end
of World War II." Karl-Ulrich Meyn, "Debellatio," in I Encyclo
pedia ofPublic International Law 166 (1992).
de bene esse (dee bee-nee es-ee also day ben-ay es-ay),
adv. [Law Latin "of well-being"] (l7e) As conditionally
allowed for the present; in anticipation ofa future need
<Willis's deposition was taken de bene esse>. [Cases:
Pretrial Procedure G~.>63.] -Abbr. d.b.e. de bene
esse, adj.
debenture (di-ben-chdr). [ff. L. debentur "there are
owed"] (15c) 1. A debt secured only by the debtor's
earning power, not by a lien on any specific asset .
Originally, this was the first word of a deed detailing
sums acknowledged to be owed. 2. An instrument
acknowledging such a debt. 3. A bond that is backed
only by the general credit and financial reputation of
the corporate issuer, not by a lien on corporate assets.
Also termed debenture bond; unsecured bond; naked
debenture; plain bond. Cf. BOND (3). Corpora
tions
"The word 'debenture' in its archaic sense was applied to
a form given under seal as an acknowledgment for goods
supplied to the Royal Household, and as such probably
meant a charge on Public Funds. The term was further
applied to drawback certificates issued for repayment, on
the exportation of goods, of duty which had already been
paid upon them, and this term is still so used by H.M.
Customs.... The word is now, however, generally used to
indicate an acknowledgment of indebtedness given under
seal by an incorporated company, containing a charge on
assets of the company, and carrying an agreed rate of
interest until payment, but the variety of the forms which
a debenture may take makes it difficult to find a good
general definition in any reported case." Thomas Froude
& Eric V.E. White, The Practice Relating to Debentures I
(1935).
convertible debenture. (1908) A debenture that
the holder may change or convert into some other
security, such as stock. [Cases: Corporations
convertible subordinated debenture. (1961) A deben
ture that is subordinate to another debt but can be
converted into a different security.
sinking-fund debenture. (1893) A debenture that is
secured by periodic payments into a fund established
to retire long-term debt.
461
subordinate debenture. (1929) A debenture that is
subject to the prior payment of ordinary debentures
and other indebtedness.
4. English law. A company's security for a monetary
loan. The security usu. creates a charge on company
stock or property. 5. A customhouse certificate provid
ing for a refund ofthe duties on imported goods when
the importer reexports the goods rather than selling
them in the country where they were imported.
debenture bond. See DEBENTURE (3).
debenture indenture. See INDENTURE.
debenture stock. 1. Stock that is issued under a contract
providing for periodic, fixed payments. [Cases: Cor
porations C=:->470.) 2. English law. A type ofbond rep
resenting money borrowed by a company using its
property or other fixed assets as security.
debet et detinet (dee-bet or deb-et et det-i-net or det
<J-n;}t). [Law Latin) Hist. He owes and detains . 'This
phrase was used in declarations in actions for debt
when the original creditor sued the original debtor.
The declaration stated that the defendant "owes to" as
well as "detains from" the plaintiff the debt or thing in
question; thus, the action was said to be "in the debet et
detinet." But ifthe action was brought against someone
other than the original debtor (such as an executor, for
a debt due from the testator), then the action was said
to be "in the detinet alone." Cf. DETINET.
debet sine breve (dee-bet or deb-et sl-nee breev or bree
vee), n. [Law Latin" debt without a writ"] 1. An action
for debt commenced under a bill rather than a writ. 2.
A debt confessed by judgment. -Abbr. d.s.b. Also
termed debitum sine breve; debit sans breve. See CON
FESSION OF JUDGMENT.
de bien et de mal (dd byen ay d.:l mal). [Law French]. See
DE BONO ET MALO (I).
de biens Ie mort (d<J beenz 1<J mor[t]). [Law French] Hist.
Of the goods ofthe deceased.
de bigamis (dee big-.:l-mis), n. [Law Latin "concerning
men twice married"] Hist. The statute of4 Edw. I. st. 3,
so called from the opening words ofthe fifth chapter.
See BIGAMUS.
debit. (ISc) 1. A sum charged as due or owing. 2. In
bookkeeping, an entry made on the left side ofa ledger
or account, noting an increase in assets or a decrease in
liabilities. 3. An account balance showing that some
thing remains due to the holder of the account. Cf.
CREDIT (6).
debita fundi (deb-i-t.:lm bn-dI). [Law Latin] Scots law.
Debts attaching to the soil; debts affecting the land.
debita laicorum (deb-i-t.:l laY-d-kor-.:lm), n. [Law Latin
"debts oflaity"] Hist. The debts recoverable in civil
courts.
debit card. A card used to pay for purchases by elec
tronic transfer from the purchaser's bank account. Cf.
CREDIT CARD. de bonis non administratis
debiti et crediti contributio (deb-HI et kred-HI kOIl
tri-byoo-shee-oh). [Law Latin] Civil law. A balancing
ofdebit and credit. The phrase appeared in reference
to setoff.
debitor (deb-i-tor), n. Roman law. Someone who has a
legal obligation to someone else. Cf. CREDITOR (1). PI.
debitores.
debito rem locupletem esse (deb-i-tor-;}m lok-yoo-plee
t<Jm es-ee). [Latin] Hist. That the debtor is solvent. In
assigning a debt, a creditor might sometimes warrant
that the debtor had the money to pay it.
debitor non praesumitur donare (deb-i-tor non pri
zyoo-mi-tur doh-nair-ee), n. [Law Latin "a debtor is not
presumed to make a gift") His!. The presumption that
any payment from a debtor is intended to satisfy the
debt, unless the disposition dearly shows the debtor's
intent to make a donation.
debito tempore (deb-i-toh tem-p<J-ree). [Latin] Hist. In
due time.
debitrix (deb-d-triks), n. [Latin) Archaic. Civil law. A
female debtor.
debit sans breve. See DEBET SINE BREVE.
debitum (deb-i-t;}m), n. [Latin "a debt"] Roman law.
Money or other thing that is actually owed, where there
is both a duty and liability to repay; an actionable debt.
Cf. INDEBITUM.
debitum fructuum (deb-i-t<Jm frak-choo-dm). [Law
Latin] Hist. A debt upon the fruits; that is, a debt from
the fruit ofthe land, not from the land itself. Tithes,
for example, were usu. payable debitum fructuum.
debitum in diem (deb-i-t<Jm in dI-dm). [Latin "a debt
to a date"] Hist. A debt payable at a future date . The
phrase appeared in reference to a debt that is due but
for which the time for payment had not yet arrived. See
UBI DIES CESSIT, LICET NONDUM VENERIT.
debitum in praesenti solvendum in futuro (deb- i-t.:lm in
pri-zen-tI sol-ven-d.:lm in fyoo-t[y]oor-oh). [Latin] A
present debt (or obligation) to be paid at a future time;
a debt or obligation complete when contracted, but of
which the performance cannot be required until some
future period.
debitum reale (deb-i-t<Jm ree-ay-Iee). [Law Latin] Hist.
A real debt; a debt on land, as distinguished from a
personal obligation.
debitum sine breve. See DEBET SINE BREVE.
debitum subesse (deb-i-t;}m s.:lb-es-ee). [Latin) Hist. That
the debt is due.
de bonis asportatis (dee boh-nis as-pdr-tay-tis). See
trespass de bonis asportatis under TRESPASS.
de bonis non (dee boh-nis non). See administration de
bonis non under ADMINISTRATION.
de bonis non administratis (dee boh-nis non ad-min
<J-stray-tis). [Law Latin] Hist. Ofthe goods not admin
istered . When the first administrator of an intestate
estate dies or is removed, the second administrator is
called an administrator bonis non, who administers the
goods not administered by the previous executor.
de bonis non amovendis (dee boh-nis non ay-moh-ven
dis), n. [Latin "of goods not to be moved"] Hist. A writ
directing the sheriffs of London to make sure that a
defendant's goods are not removed while the defen
dant's writ oferror on a judgment is pending.
de bonis propriis (dee boh-nis proh-pree-is), n. [Law
Latin "of his own goods"] Hist. A judgment allowing
execution on an administrator's individual property
rather than the property of an estate, as when the
administrator mismanages the estate. Cf. DE BONIS
TESTATORIS.
de bonis testatoris (dee boh-nis tes-t.:l-tor-is), n |
TESTATORIS.
de bonis testatoris (dee boh-nis tes-t.:l-tor-is), n. [Law
Latin "of the goods of the testator"J Hist. A judgment
awarding execution on a testator's property, rather
than the individual property of an administrator. Cf.
DE BONIS PROPRIIS.
de bonis testatoris ac si (dee boh-nls tes-t.:l-tor-is ak sIlo
[Law Latin "from the goods of the testator if he has
any, and if not, from those of the executor"]. Hist. A
judgment holding an executor responsible if the testa
tor's estate is insufficient or if the executor falsifies a
pleading as a release.
de bonne memoire (d.:l bawn mem-wahr). [Law French]
Of sound mind; of good memory. Also spelled
de bone memorie. See MIND A:srD MEMORY; COMPOS
MENTIS.
de bono et malo (dee boh-noh et mal-oh), n. [Law Latin
"for good and evil"] Hist. 1. For good and evil. A
criminal defendant indicated full submission to the
jury's verdict by placing himself or herself at the jury's
mercy de bono et malo. Also termed de bien et de mal.
2. A special writ ofjail delivery issued by the justices of
assize to enable them to try all criminal defendants who
were in jail where the court traveled. Formerly, the
judges were required to issue a separate writ for every
prisoner. This was replaced by a general commission
ofjail delivery.
"[Tjhey have ... a commission of general gaol delivery;
which empowers them to try and deliver every prisoner,
who shall be in the gaol when the judges arrive at the circuit
town, whenever indicted, or for whatever crime committed.
It was anciently the course to issue special writs of gaol
delivery for each particular prisoner, which were called the
writs de bono et malo: but, these being found inconvenient
and oppressive, a general commission for all the prisoners
has long been established in their stead. So that, one way
or other, the gaols are cleared, and all offenders tried,
punished, or delivered, twice in every year: a constitution
of singular use and excellence." 4 William Blackstone, Com
mentaries on the Laws ofEngland 267 (1769).
de bono gestu (dee boh-noh jes-t[y]ool. [Law Latin] For
good behavior.
debt. (13c) 1. Liability on a claim; a specific sum of money
due by agreement or otherwise <the debt amounted to
$2,500>. 2. The aggregate ofall existing claims against
a person, entity, or state <the bank denied the loan
application after analyzing the applicant's outstand
debt>. 3. A nonmonetary thing that one person owes another, such as goods or services <her debt was
to supply him with 20 international first-class tickets
on the airline ofhis choice>. 4. A common-law writ by
which a court adjudicates claims involving fixed sums
ofmoney <he brought suit in debt>. Also termed (in
sense 4) writ ofdebt. [Cases: Debt, Action
'The action of debt lies where a party claims the recovery
of a debt; that is, a liquidated or certain sum of money due
him. The action is based upon contract, but the contract
may be implied, either in fact or in law, as well as express;
and it may be either a simple contract or a specialty. The
most common instances of its use are for debts: (a) Upon
unilateral contracts express or implied in fact. (b) Upon
quasi-contractual obligations having the force and effect
of simple contracts. (c) Upon bonds and covenants under
seal. (d) Upon judgments or obligations of record. (e) Upon
obligations imposed by statute." Benjamin j. Shipman,
Handbook of Common-Law Pleading 52, at 132 (Henry
Winthrop Ballantine ed., 3d ed. 1923).
active debt. Civil law. A debt due to another person.
ancestral debt. An ancestor's debt that an heir can be
compelled to pay.
antecedent debt. 1. Contracts. An old debt that may
serve as consideration for a new promise ifthe statute
oflimitations has run on the old debt. See PREEXIST
ING-DUTY RULE. [Cases: Contracts <8=>67.J 2. Bank
ruptcy. A debtor's prepetition obligation that existed
before a debtor's transfer of an interest in property.
For a transfer to be preferential, it must be for or
on account of an antecedent debt. See PREFERENTIAL
TRANSFER. [Cases: Bankruptcy
bad debt. A debt that is uncollectible and that may be
deductible for tax purposes. [Cases: Jnternal Revenue
bonded debt. A debt secured by a bond; a business or
government debt represented by issued bonds.
community debt. A debt that is chargeable to the
community of husband and wife. See COMMUNITY
PROPERTY. [Cases: Husband and Wife
consumer debt. A debt incurred by someone primarily
for a personal, family, or household purpose. [Cases:
Bankruptcy C-=>2021.1.]
"What are 'consumer' debts? Section 101 (8) defines a
consumer debt as follows: 'consumer debt means debt
incurred by an individual primarily for a personal, family,
or household purpose.' The touchstone is the debtor's use
of the money. The nature of the collateral, the business of
the creditor and the form of the loan are all irrelevant. A
loan of $25,000 from a Credit Union to pay for a child's
education is a consumer debt, but the same loan used
to finance the opening of an accounting business is not
a consumer debt. This is so irrespective of the nature of
the collateral put up for the debt." David G. Epstein et aI.,
Bankruptcy 7-45, at 579 (1993).
contingent debt. A debt that is not presently fixed but
that may become fixed in the future with the occur
rence of some event.
convertible debt. A debt whose security may be changed
by a creditor into another form ofsecurity.
debt by simple contract. See simple-contract debt.
debt by special contract. See special-contract debt.
463
debt by specialty contract. See special-contract debt.
debt ofrecord. A debt evidenced by a court record, such
as a judgment.
desperate debt. 1. C'ncollectable debt. 2. A debt taken
on by one who is either insolvent or on the verge of
insolvency.
distressed debt. A debt instrument issued by a company
that is financially troubled and in danger of defaulting
on the debt, or in bankruptcy, or likely to default or
declare bankruptcy in the near future.
exigible debt. A liquidated and demandable debt; a
matured claim.
fixed debt. Generally, a permanent form of debt
commonly evidenced by a bond or debenture; long
term debt. -Also termed fixed liability.
flotJ-ting debt. Short-term debt that is continuously
renewed to finance the ongoing operations of a
business or government.
fraudulent debt. A debt created by fraudulent prac
tices.
funded debt. 1. A state or municipal debt to be paid out
of an accumulation of money or by future taxation.
[Cases: Municipal Corporations C:=>951.] 2. Secured
long-term corporate debt meant to replace short-term,
floating, or unsecured debt.
general debt. A governmental body's debt that is legally
payable from general revenues and is backed by the
full faith and credit of the governmental body. [Cases:
Municipal Corporations C:=>894.1
hypothecary debt. A lien on an estate.
individual debt. (usu. pI.) Debt personally owed by a
partner, rather than by the partnership. [Cases: Part
nership C:=> 144.]
installment debt. A debt that is to be repaid in a series
of payments at regular times over a specified period.
judgment debt. A debt that is evidenced by a legal
judgment or brought about by a successful lawsuit
against the debtor.
junior debt. See subordinate debt.
legal debt. A debt recoverable in a court oflaw.
liquidated debt. A debt whose amount has been deter
mined by agreement of the parties or by operation
oflaw.
liquid debt. A debt that is due immediately and uncon
ditionally.
long-term debt. Generally, a debt that will not come
due within the next year.
mutual debts. Cross-debts of the same kind and quality
between two persons. Cf. SETOFF (2).
national debt. See NATIONAL DEBT.
nondischargeable debt. (1908) A debt (such as one for
delinquent taxes) that is not released through bank
ruptcy. [Cases: BankruptcyC:=>3341-3378.] debt limitation
passive debt. A debt that, by agreement between the
debtor and creditor, is interest-free.
preferential debt. A debt that is legally payable before
others, such as an employee's wages.
privileged debt. A debt that has priority over other
debts ifa debtor becomes insolvent; a secured debt.
public debt. A debt owed by a municipal, state, or
national government. [Cases: Municipal Corpora
tions (;::,869.]
pure debt. See pure obligation under OBLIGATION.
secured debt. A debt backed by collateral.
senior debt. A debt that takes priority over other debts.
Senior debts are often secured by collateral.
short-term debt. Collectively, all debts and other liabil
ities that are payable within one year. Also termed
current liability.
simple-contract debt. A debt that is either oral or
written but is not of record and not under seal.
Also termed debt by simple contract.
special-contract debt. A debt due, or acknowledged to
be due, by an instrument under seal, such as a deed of
covenant or sale, a lease reserving rent, or a bond.
Also termed debt by special contract; debt by specialty
contract; speCialty debt.
"Any contract in short whereby a determinate sum of money
becomes due to any person, and is not paid but remains in
action merely, is a contract of debt. And, taken in this light,
it comprehends a great variety of acquisition; being usually
divided into debts of record, debts by speCial, and debts
by simple contract:' 2 William Blackstone, Commentaries
on the Laws ofEngland 464 (1766).
subordinate debt. A debt that is junior or inferior to
other types or classes ofdebt. Subordinate debt may
be unsecured or have a low-priority claim against
property secured by other debt instruments. Also
termed junior debt.
unliquidated debt. A debt that has not been reduced
to a specific amount, and about which there may be
a dispute.
unsecured debt. A debt not supported by collateral or
other security.
debt adjustment. See DEBT POOLING.
debt capital. See CAPITAL.
debt consolidation. 1. See DEBT POOLING. 2. The replace
ment ofmultiple loans from one or more lenders with a
single loan from one lender, usu. with a lower monthly
payment and a longer repayment period.
debtee. Archaic. See CREDITOR (1).
debt-equity ratio. See DEBT-TO-EQUITY RATIO.
debt finandng. See FINANCING.
debt instrument. (1953) A written promise to repay a
debt, such as a promissory note, bill, bond, or com
mercial paper. [Cases: Bills and Notes (=28.]
debt limitation. A ceiling placed on borrowing by an
individual, business, or government. The constitutions
of many states prohibit the states from incurring debt
in excess ofa stated amount. Other state constitutions
allow states to incur debt above a stated amount only
through a vote ofthe people. Also termed limitation
on indebtedness. [Cases: States C=> 115.]
debt of record. See DEBT.
debtor. (13c) L One who owes an obligation to another,
esp. an obligation to pay money. 2. Bankruptcy. A
person who files a voluntary petition or against
whom an involuntary petition is filed. -Also termed
bankrupt. lCases: Bankruptcy C=>222 1.]
"Section 101 [of the Bankruptcy Code] also introduces us
to the language of modern bankruptcy practice. It tells
us, for instance, that the person whom a bankruptcy case
concerns is a debtor. A person or a firm in bankruptcy is no
longer called a bankrupt. Although that word retains some
currency among lay people, among bankruptcy lawyers
it sounds old-fashioned and precious." Douglas G, Baird,
Elements ofBankruptcy 6 (2001 J.
3. Secured transactions. A person who either (I) has
a property interest other than a security interest
or other lien in collateral, even if the person is not
an obligor, or (2) is a seller of accounts, chattel paper,
payment intangibles, or promissory notes. t.:CC
9-102(a)(28). -Abbr. Dr. Cf. CREDITOR. [Cases:
Secured Transactions 21.]
absconding debtor. (18c) A debtor who flees from credi
tors to avoid haVing to pay a debt . Absconding from
a debt was formerly considered an act ofbankruptcy.
See ACT OF BANKRUPTCY.
absent debtor. A debtor who lacks the intent to defraud
creditors but is beyond the geographic reach of
ordinary service of process.
account debtor. A person obligated on an account,
chattel paper, |
geographic reach of
ordinary service of process.
account debtor. A person obligated on an account,
chattel paper, or general intangible. The UCC
exempts from the definition of account debtor a
person obligated to pay a negotiable instrument,
even if the instrument constitutes chattel paper. UCC
9-102(a)(3).
common debtor. Scots law. A debtor whose property
has been arrested by more than one creditor.
concealed debtor. A debtor who hides from creditors,
usu. with the intent to defraud the creditors or to
avoid service of process, but does not leave the com
munity or move out of state.
joint debtor. One of two or more debtors jointly liable
for the same debt.
judgment debtor. See JUDGMENT DEBTOR.
new debtor. (ISc) Secured transactions. A person who
becomes bound as debtor under a security agree
ment previously entered into by another person. uec
9-102(a)(56), 9-203(c).
solvent debtor. A debtor who owns enough property
to cover all outstanding debts and against whom a
creditor can enforce a judgment.
debtor-in-possession. (1806) Bankruptcy. A Chapter 11
or 12 debtor that continues to operate its business as
a fidUciary to the bankruptcy estate. With certain exceptions, the debtor-in-possession has all the rights,
powers, and duties of a Chapter 11 trustee, Abbr.
DIP. [Cases: BankruptcyC:-=3622, 3672.]
debtor rehabilitation. See REHABILITATION (3).
Debtor's Act of 1869. An English statute that, among
other things, (1) abolished imprisonment for debt
except in certain cases, as when a debtor owed a debt
to the Crown or a debtor had money but refused to pay
a debt, (2) abolished arrest by mesne process, that is,
by compelling the defendant to appear and give bail
unless it was believed that the defendant would leave
the country, (3) made it a misdemeanor to obtain credit
under false pretenses or to defraud creditors, and (4)
defined how warrants and judgment orders would be
executed.
debtor's examination. Bankruptcy. A meeting between a
debtor and his or her creditors during which the credi
tors ask the debtor questions designed to uncover infor
mation about the location and extent of the debtor's
assets and the dischargeability ofdebts. The examina
tion may be conducted under 343 ofthe Bankruptcy
Code or Rule 2004 ofthe Federal Rules of Bankruptcy
Procedure. The bankruptcy trustee may be present
and preside over the initial 343 examination, which
is held shortly after the bankruptcy filing. But the party
(usu. a creditor) who requests a Rule 2004 examination
presides over the meeting, which can be held at any
time. See 11 USCA 343; Fed. R. Bankr. P. 2004, [Cases:
Bankruptcy (;:-c3040.1-3048.]
debtor's petition. See voluntary petition under
PETITION.
debtor's property. See PROPERTY OF THE DEBTOR.
debt pooling. (1957) 1. Bankruptcy. An arrangement by
which a person's debts are consolidated and creditors
agree to accept lower monthly payments or to take less
money. -Also termed debt consolidation; debt adjust
ment. 2. An arrangement under which a debtor agrees
to pay (1) a sum of money periodically or otherwise
to a third person who will then distribute the money
among certain specified creditors in accordance with
a plan, and (2) a fee to the third person for his or her
services as distributor . Debt-pooling in this manner
is generally illegal if the arrangement is not made with
a bank, attorney, judicial officer, retail-merchants' asso
ciation, or nonprofit organization that provides debt
counseling services.
debt ratio. (1932) A corporation's total long-term and
short-term liabilities divided by the firm's total assets.
A low debt ratio indicates conservative financing
and thus usu. an enhanced ability to borrow in the
future. Also termed debt-to-total-assets ratio.
debt retirement. (1928) Repayment of debt; RETIRE
MENT (3).
debt security. See SECURITY.
debt service. (1930) 1. The funds needed to meet a
long-term debt's annual interest expenses, principal
payments, and sinking-fund contributions. 2. Payments
due on a debt, including interest and principal.
debt-to-equity ratio. (1954) A corporation's long-term
debt divided by its owners' equity, calculated to assess
its capitalization, Also termed debt-equity ratio;
debt-to-net-worth ratio,
debt-to-total-assets ratio. See DEBT RATIO.
DeCA. abbr. DEFENSE COMMISSARY AGENCY,
de caetero (dee see-t;}-roh) [Latin "about the other"]
Henceforth; in the future, Also spelled de cetera.
de calceto reparando (dee kal-s;}-toh rep-doran-doh),
n. [Law Latin "for repairing a causeway"] Hist. A writ
directing a sheriff to distrain residents of a place to
repair a road.
decalvatio (dee-kal-vay-shee-oh). Hist. The act ofcutting
off a person's hair to symbolize a total loss ofhonor.
Although some early legal historians interpreted this
Germanic practice as scalping, a leading historian of
the early 20th century insisted that it referred only to
the cutting of hair. See Munroe Smith, The Develop
ment ofEuropean Law 99 (1928).
decanatus (dek-a-nay-tas), n, [Law Latin] Hist. A group
of ten people; a decenary. See DECANUS,
decania (di-kay-nee-,,), n. [Law Latin] Hist. A dean's
office; a dean's territory.
decanus (di-kay-nas), n. [fro Greek dekanos "a dean"] 1.
Roman law. An officer commanding ten soldiers. 2,
Eccles. & Civil law. A leader often people, as in decanus
monasticus ("dean of ten monks"). 3. The dean of a
cathedral.
de capitalibus dominus feodi (dee kap-a-tay-Id-b;ls dom
a-nds fee-;}-dI). [Law Latin] Ilist. From the highest
lord of the fee. _ This term was primarily used in old
charters to state that the tenure of an estate was to
be held of the chieflord of the fee, rather than of the
immediate grantor.
decapitation (dee-kap-;l-tay-sh;ln). Hist. The act of
cutting off a head; a beheading. This was once a
common method ofcapital punishment.
de capite minutis (dee kap-a-tee mi-n[y]oo-tis). [Latin
"of those who have lost their status"] Roman law. A title
in the Digest, to people who lost their civil
status. See CAPITIS DEMINUTIO.
decarceration. See DISIMPRISONMENT.
de cartis reddendis (dee kahr-tis ri-den-dis), n. [Law
Latin "for restoring charters"] Hist. A writ ordering
redelivery of a charter or deed; a writ of detinue. See
DETINUE.
De Catallis Felonum. Hist. A 1326 statute providing that
a felon forfeited his or her personal property and also
lost all rights and means ofacquiring property . This
statute is one ofthe earliest written laws imposing civil
death. Cf. civil death (1) under DEATH.
de catallis reddendis (dee kd-tal-is ri-den-dis), n. [Law
Latin "of chattels to be restored"] Hist. A writ ordering a bailee to deliver chattels kept from the owner . This
was replaced by the writ ofdetinue. See DETINUE.
de cautione admittenda (dee kaw-shee-oh-nee ad-mi
ten-d;}), n, [Law Latin "of security to be taken"] Hist. A
writ commanding a bishop who had ordered an excom
municated person held for contempt, even though the
prisoner had offered bail and promised to obey the
church in the future, to take the offered security and
order the prisoner's release.
decease, n. See DEATH.
decease, vb. To die; to depart from life.
deceased, n. See DECEDENT.
decedent (di-see-d;}nt), n. (16c) A dead person, esp. one
who has died recently. _ This term is little used outside
law. It typically appears in legal proceedings or admin
istrative inquiries. Also termed deceased.
nonresident decedent. A decedent who was domiciled
outside the jurisdiction in question (such as probate
Jurisdiction) at the time ofdeath.
decedent's estate. See ESTATE (3).
deceit, n. (14c) 1. The act ofintentionally giving a false
impression <the juror's deceit led the lawyer to believe
that she was not biased>. 2. A false statement of fact
made by a person knowingly or recklessly (Le., not
caring whether it is true or false) with the intent that
someone else will act upon it. See fraudulent misrep
resentation under MISREPRESENTATION. [Cases: Fraud
(;:::;3.]3. A tort arising from a false representation made
knowingly or recklessly with the intent that another
person should detrimentally rely on it <the new hom
eowner sued both the seller and the realtor for deceit
after discovering termites>. See FRAUD; MISREPRESEN
TATION. deceive, vb.
'The tort of deceit consists in the act of making a wilfully
false statement with the intent that the plaintiff shall act
in reliance on it, and with the result that he does so act
and suffers harm in consequence .... There are four main
elements in this tort: (1) there must be a false represen
tation of fact; (2) the representation must be made with
knowledge of its falsity; (3) it must be made with the inten
tion that it should be acted on by the plaintiff, or by a
class of persons which includes the plaintiff, in the manner
which resulted in damage to him; (4) it must be proved that
the plaintiff has acted upon the false statement and has
sustained damage by so doing." R.F.V. Heuston, Salmond
on the Law of Torts 387 (17th ed. 1977).
deceitful plea. See sham pleading under PLEADING (1).
decem tales (des-em tay-leez), n. [Law Latin "ten such
people"] Hist. A writ directing a sheriff to summon ten
people for a jury panel when a sufficient number have
not already appeared.
decemviri litibus judicandis (di-sem-v,,-rI iI-ti-bas joo
da-kan-dis). [Latin "ten persons to decide lawsuits"]
Roman law. A group of five senators and five knights
who assisted the elected magistrate in deciding legal
disputes concerning liberty. -Also spelled decemviri
stlitibus judicandis.
decenary. [fro Latin decena "a tithing"] Hist. A town
or district consisting of ten freeholding families. - A
freeholder of the decenary (a decennarius) was bound
by frankpledge to produce any wrongdoer living in the
decenary. -Also spelled (incorrectly) decennary.
Also termed decmna; tithing. Cf. FRANKPLEDGE.
"The civil division of the territory of England is into
counties, of those counties into hundreds, of those
hundreds into tithi ngs or towns. Which division, as it now
stands, seems to owe its original to king Alfred; who, to
prevent the rapines and disorders which formerly prevailed
in the realm, instituted tithings; so called from the Saxon,
because ten freeholders, with their families, composed
one. These all dwelt together, and were sureties or free
pledges to the king for the good behavior of each other;
and, if any offence was committed in their district, they
were bound to have the offender forthcoming. And there
fore anciently no man was suffered to abide in England
above forty days, unless he were enrolled in some tithing
or decennary." 1 William Blackstone, Commentaries on the
Laws ofEngland 110 (1765).
decency. The state of being proper, as in speech or dress;
the quality ofbeing seemly.
decenna (di-sen-a), n. [fro Latin decem "ten"] See
DECENARY.
decennarius (des-a-nair-ee-as), n. [Law Latin "a deciner"]
One often families offreeholders comprising a decen
nary. See DECENARY.
decennary. See DECENARY.
deceptive act. (1939) As defined by the Federal Trade
Commission and most state statutes, conduct that is
likely to deceive a consumer acting reasonably under
similar circumstances. -Also termed deceptive
practice; deceptive sales practice. [Cases: Consumer
Protection C:::>4; Antitrust and Trade Regulation
136.]
deceptive advertising. See FALSE ADVERTISING.
deceptive practice. See DECEPTIVE ACT.
deceptive sales practice. See DECEPTIVE ACT.
deceptive warranty. See WARRANTY (2).
decern (di-s<lrn), vb. Scots law. To decree; to give final
judgment.
"Before the judgment or interlocutor of any court in
Scotland can be extracted, to the effect of warranting
execution, it must import a decree. Hence, all extractable
judgments close with the word 'decern.'" William Bell, Bell's
Dictionary and Digest of the Law of Scotland 287 (George
Watson ed., 7th ed. 1890).
de certificando (dee sar-ti-fi-kan- |
Watson ed., 7th ed. 1890).
de certificando (dee sar-ti-fi-kan-doh), n. [Law Latin
"about something to be certified"] A writ requiring
something to be certified, similar to certiorari. See
CERTIFICANDO DE RECOGNITIONE STAPULAE.
decertify, vb. (1918) 1. To revoke the certification of.
2. To remove the official status of (a labor union) by
withdrawing the right to act as a collective-bargain
ing agent. [Cases: Labor Relations (;=,216.] 3. (Of a
court) to overrule a previous order that created a class
for purposes of a class action; to officially undo (a
class). [Cases: Labor and Employment (;=> 1232.] Cf.
CERTIFY. -decertification, n. de certiorando (dee s<lr-shee-a-ran-doh), n. [Law Latin
"about certification"] A writ ordering a sheriff to certify
a fact.
decessus (di-ses-as), n. [fro Latin decedere "to depart"]
l. Roman law. A death. 2. A departure. -This term
has been used in both the civil and common law, esp.
in reference to the desertion ofa ground in a previous
pleading in favor of another. See DEPARTURE.
de cetero. See DE CABTERO.
de champertia (dee kam-p<lr-shee-a), n. [Law Latin
"about champerty"] Hist. A writ ordering justices of
the bench to enforce the champerty laws. See CHAM
PERTOR; CHAMPERTY.
de char et de sank (da shahr ay d<l sangk). [Law French]
Hist. Of flesh and blood.
de chimino (dee kim-d-noh), n. [Law Latin "writ ofway"]
Hist. A writ to enforce a right-of-way.
de cibariis utendis (dee si-bair-ee-ds yoo-ten-dis), n.
[Law Latin "of victuals to be used"] Hist. The statute
of 10 Edw. 3 ch. 3 restraining entertainment expenses.
-This was one of several statutes limiting luxury
spending.
dedes tantum (desh-ee-eez or dee-shee-eez tan-tam), n.
[Law Latin "ten times as much"] Hist. A writ ordering
a juror who accepted a bribe for a verdict to pay ten
times the bribery amount, halfto the suing party and
half to the Crown.
"Decies tantum is a writ that lies where a juror in any
inquest takes money of the one part or other, to give his
verdict; then he shall pay ten times as much as he hath
received: and everyone that will sue may have this action,
and shall have the one half, and the king the other ....
And the same law is of all other actions popular, where one
part is to the king, the other to the party that sues. Also the
embracers, who procure such inquests, shall be punished
in the same manner, and they shall have imprisonment
a year. But no justice shall inquire thereof ex officio, but
only at the suit of the party." Termes de la Ley 146 (l st
Am. ed. 1812).
dedmae (des-a-mee), n. [fro Latin decem "ten"] Eccles.
law. 1. The tenth part of the annual profits of a benefice
originally payable to the Pope, and later to the Crown
by 26 Hen. 8, ch. 3.
"The tenths, or decimae, were the tenth part of the annual
profit of each living ... which was also claimed by the holy
see .... But this claim of the pope met with a vigorous
resistance from the English parliament; and a variety of acts
were passed to prevent and restrain it .... But the popish
clergy, blindly devoted to the will of a foreign master, still
kept it on foot; sometimes more secretly, sometimes more
openly and avowedly .... And, as the clergy expressed
this Willingness to contribute so much of their income to
the head of the church, it was thought proper (when in the
same reign the papal power was abolished, and the king
was declared the head of the church of England) to annex
this revenue to the crown, ..." 1 William Blackstone, Com
mentaries on the Laws ofEngland 274 (1765).
2. Tithes paid to the church, often in grain or wool.
decimae garbales (des-i-mee gahr-bay-leez). [Law Latin]
Hist. Eccles. law. Tithe sheaves; grain tithes. -The
parish rector was entitled to each tenth sheaf of the
cut grain as a tithe.
decimae rectoriae (des-i-mee rek-tor-ee-ee). [Law Latin]
Hist. Eccles. law. Parsonage tithes; that is, fixed tithes
payable to the parson of a parish . The right to levy
such tithes could not be lost by prescription.
decimae vicariae (des-i-mee vI-kair-ee-ee). [Law Latin]
Hist. Eccles. law. Vicarage tithes . Vicars received
tithes from various sources (such as from wool or eggs)
according to need or custom. The right to levy them
could not be lost by prescription.
decimation (des-;l-may-sh;m). 1. A major destruction of
people; a great loss oflife. 2. Hist. A tithing; a payment
of the tenth part. 3. Hist. A punishment, esp. by death,
ofevery tenth person by lot . Under Roman law, deci
matio referred to the punishment by lot ofevery tenth
soldier in a legion for mutiny or cowardice.
decision, n. (16c) 1. A judicial or agency determina
tion after consideration ofthe facts and the law; esp., a
ruling, order, or judgment pronounced by a court when
considering or disposing of a case. See JUDGMENT (1);
OPINION (1). -decisional, adj.
appealable decision. (1870) A decree or order that is
sufficiently final to receive appellate review (such as an
order granting summary judgment), or an interlocu
tory decree or order that is immediately appealable,
usu. by statute (such as an order denying immunity to
a police officer in a civil-rights suit). -Also termed
reviewable issue. See COLLATERAL-ORDER DOCTRINE.
[Cases: Appeal and Error ~24-135.]
final decision. See final judgment under JUDGMENT.
interlocutory decision. See interlocutory order under
ORDER (2).
unreasonable decision. (1962) An administrative
agency's decision that is so obviously wrong that there
can be no difference of opinion among reasonable
minds about its erroneous nature. [Cases: Adminis
trative Law and Procedure ~763.]
2. Parliamentary law. VOTE (4). 3. Parliamentary law.
The chair's ruling on a point oforder. See appeal from
the decision ofthe chair under APPEAL.
decisionallaw. See CASELAW.
decision-making responsibility. The authority to come
to a binding resolution of an issue. For example, in
child-rearing, decision-making responsibility involves
the authority to make significant decisions on a child's
behalf, including decisions about education, religious
training, and healthcare.
decision on the merits. See judgment on the merits under
JUDGMENT.
decisive oath. See OATH.
decisory oath. See decisive oath under OATH.
Decker test. See SUBJECT-MATTER TEST.
declarant (di-klair-;lnt), n. (17c) 1. One who has made
a statement <in accordance with the rules ofevidence,
the statement was offered to prove the declarant's state
ofmind>. 2. One who has signed a declaration, esp. one stating an intent to become a U.S. citizen <the declarant
grew up in Italy>. -declarant, adj.
declaration, n. (15c) 1. A formal statement, proclama
tion, or announcement, esp. one embodied in an instru
ment. Cf. AFFIDAVIT.
declaration ofalienage. A declaration by a person with
dual citizenship ofa wish to renounce the citizenship
ofone state . For the declaration to be effective, the
person making it must be of full age and not under
any disability.
declaration ofdefault. A creditor's notice to a debtor
regarding the debtor's failure to perform an obliga
tion, such as making a payment.
declaration ofdividend. (1837) A company's setting
aside of a portion of its earnings or profits for dis
tribution to its shareholders. See DIVIDEND. [Cases:
Corporations ~152.]
declaration ofhomestead. (1856) A statement required
to be filed with a state or local authority to prove
property ownership in order to claim homestead
exemption rights. See HOMESTEAD. [Cases: Home
stead~41.]
declaration ofintention. (1812) An alien's formal
statement resolving to become a U.S. citizen and
to renounce allegiance to any other government or
country. [Cases: Aliens, Immigration, and Citizen
ship~718.]
declaration oflegitimacy. (1861) A formal or legal
pronouncement that a child is legitimate. [Cases:
Children Out-of-Wedlock ~1,8.]
declaration oftrust. (17c) 1. The act by which the
person who holds legal title to property or an estate
acknowledges that the property is being held in trust
for another person or for certain specified purposes.
[Cases: Trusts ~1.] 2. The instrument that creates
a trust. -Also termed (in sense 2) trust instrument;
trust deed; trust agreement. [Cases: Trusts ~19.]
judicial declaration. Hist. Scots law. 1. A party's state
ment, made in court and transcribed, about a case's
material facts. 2. An accused's statement, made after
an arrest and taken down in writing.
2.1nt'llaw. The part ofa treaty containing the stipula
tions under which the parties agree to conduct their
actions; TREATY (1). 3.1nt'llaw. A country's unilateral
pronouncement that affects the rights and duties of
other countries.
declaration ofwar. A country's announcement that it
is officially engaged in war against another country.
[Cases: War and National Emergency~7.]
4. A document that governs legal rights to certain types
ofreal property, such as a condominium or a residential
subdivision. [Cases: Condominium ~3.] 5. A listing
of the merchandise that a person intends to bring
into the United States . This listing is given to U.S.
Customs when one enters the country. [Cases: Customs
Duties ~65.] 6. Evidence. An unsworn statement
made by someone having knowledge of facts relating
468 declaration after final rejection
to an event in dispute. [Cases: Criminal Law (;=::>411,
415,416; Criminal Law(;=::>411, 415, 416; Evidence
266-3l3.]
deathbed declaration. See dying declaration.
declaration against interest. (1940) A statement by a
person who is not a partyto a suit and is not available
to testify at trial, discussing a matter that is within the
declarant's personal knowledge and is adverse to the
declarant's interest. Such a statement is admissible
into evidence as an exception to the hearsay rule. Fed.
R. Evid. 804(b)(3). Also termed seif-disserving dec
laration. See admission against interest under ADMIS
SION (1). [Cases: Criminal Law (::=,417(l5); Evidence
declaration ofpain. (1891) A person's exclamation of
present pain, which operates as an exception to the
hearsay rule. Fed. R. Evid. 803(3). [Cases: Criminal
Law (;=::>419(2.20); Evidence (;:::268.]
declaration ofstate ofmind. (1843) A person's state-of
mind statement that operates as an exception to the
hearsay rule. Fed. R. Evid. 803(3). [Cases: Criminal
Law ~419(2.20); Evidence (;=::>26S.]
dying declaration. (ISc) A statement by a person who
believes that death is imminent, relating to the cause
or circumstances ofthe person's impending death.
The statement is admissible in evidence as an excep
tion to the hearsay rule. Also termed deathbed
declaration; ante mortem statement. [Cases: Evidence
Homicide (,7:.1075.]
"[AI rule peculiar to criminal cases is the exception to the
rule respecting hearsay evidence which renders dying dec
larations as to the cause of death admissible in trials for
murder or manslaughter .... The earliest emphatic state
ment of it ... is to be found in Woodcock's case, decided
in 1789 .... This case refers to a decision in 1720 ... and
to the case of R. v Reason and Tranter, decided in 1722.
That case, however, says nothing as to any limitation on
the rule. A series of cases from 1678 to 1765 show that
during that period declarations of deceased persons as to
the cause of their death were admitted even though the
declarants had hopes of recovery when they were made."
1James Fitzjames Stephen, A History of the Criminal Law
ofEngland 447-48 (1883).
self-disserving declaration. See declaration against
interest.
self-serving declaration. (1881) An out-of-court state
ment made to benefit one's own interest. [Cases:
Criminal Law (:::::.413; Evidence
7. Common-law pleading. The plaintiff's first pleading
in a civil action . It is an amplification ofthe original
writ on which the action is founded, with the addi
tional circumstances ofthe time and place ofinjury. In
a real action, the declaration is called a count |
, with the addi
tional circumstances ofthe time and place ofinjury. In
a real action, the declaration is called a count. Today the
equivalent term in English law is statement ofclaim; in
most American jurisdictions, it is called a petition or
complaint. -Also termed narratio. See COUNT (2), (3).
Cf. PLEA (2). [Cases: Pleading
'The declaration is a statement of all material facts consti
tuting the plaintiff's cause of action in a methodical and
legal form. It consists of the following parts: (a) Statement
of title of court. (b) Statement of venue in the margin. (c) The commencement. (d) The body, or statement of the
cause of action. (e) The conclusion." Benjamin J. Shipman,
Handbook of Common-Law Pleading 76, at 192 (Henry
Winthrop Ballantine ed., 3d ed. 1923).
declaration in chief. A declaration for the principal
cause ofaction.
8. A formal, written statement resembling an affida
vit but not notarized or sworn to -that attests, under
penalty of perjury, to facts known by the declarant.
Such a declaration, if properly prepared, is admissible
in federal court with the same effect as an affidavit.
28 USCA 1746. -Also termed declaration under
penalty ofperjury; unsworn declaration under penalty
of perjury. Cf. AFFIDAVIT; sworn statement under
STATEMENT. 9. lnt'llaw. An oral or written statement,
unilaterally made, by which a state expresses its will,
intent, or opinion when acting in the field of interna
tional relations. 10. See declaratory judgment under
JUDGMENT. 11. DECLARATION OF RIGHTS. -declare,
vb. -declaratory, adj.
declaration after final rejection. See affidavit after final
rejection under AFFIDAVIT.
declaration date. See DATE.
declaration ofa desire for a natural death. See LIVING
WILL.
declaration ofalienage. See DECLARATION (1).
declaration ofcontinued use. See DECLARATION OF
USE.
declaration of estimated tax. (1946) A required IRS
filing by certain individuals and businesses ofcurrent
estimated tax owed, accompanied by periodic payments
ofthat amount. The requirement ensures current col
lection oftaxes from taxpayers (such as self-employed
persons) whose incomes are not fully taxed by payroll
withholding. IRC (26 USCA) 6315, 6654. [Cases:
Internal Revenue ~4S32, 5219.40.]
declaration ofincontestability. Trademarks. A sworn
statement submitted by the owner ofa registered mark
after five years of registration, averring that the mark
has been in continuous use in commerce for at least
five consecutive years since registration, that the mark
has not become generic, that there has been no final
adverse decision to ownership in the mark, and that
there is no pending proceeding in the U.S. Patent and
Trademark Office or courts involVing the mark. The
statement entitles the mark to immunity from some
legal challenges under 15 ofthe Lanham Act. Also
termed affidavit ofincontestability; affidavit under 15;
declaration under 15; Section 15 affidavit; Section 15
declaration. [Cases: Trademarks C=,1352.]
Declaration of Independence. The formal proclama
tion of July 4, 1776, in the name of the people of the
American colonies, asserting their independence from
the British Crown and announcing themselves to the
world as an independent nation.
declaration oflegitimacy. See DECLARATION (1).
declaration ofno defenses. See WAIVER OF DEFENSES.
469
declaration ofpain. See DECLARATION (6).
Declaration ofParis. An international agreement, signed
by Great Britain, France, Turkey, Sardinia, Austria,
Prussia, and Russia in 1856 (at the end ofthe Crimean
War), providing that (1) privateering is illegal, (2) with
the exception of contraband, a neutral flag covers an
enemy's goods, (3) with the exception of contraband,
neutral goods cannot be confiscated under a hostile
flag, and (4) a blockade must work to be binding . The
agreement was later adopted by most other maritime
powers, except the United States and a few others.
''The Declaration of Paris is one of the greatest triumphs
won by commercial interests over the strict rules of
maritime warfare. Its importance resides in its first three
articles. Article 4 did no more than formulate a principle
acknowledged for more than a century. Construed strictly
it requires an impossibility; for no blockade, however strict,
can always 'prevent access to the coast of the enemy.' But
it is clear that the words were meant to be understood in
a reasonable sense as merely prohibitory of ineffective or
'paper' blockades .... Article 1 struck at a most objec
tionable practice. The current of opinion had long been
running strongly against the use of privateers.... Article
2 ... has provoked an enormous amount of controversy.
Together with Article 3 it amounted to a new departure in
the law of maritime capture. Up to 1856 the great naval
powers had been divided between the old principle that
the liability of goods to capture should be determined by
the character of their owner, and the more modern prin
ciple ... that the character of the ship in which the goods
were laden should settle their fate." 1 R.H. Inglis Palgrave,
Palgrave's Dictionary of Political Economy 520-21 (Henry
Higgs ed., 2d ed. 1925).
declaration ofrestrictions. Property. A statement ofall
the covenants, conditions, and restrictions affecting a
parcel ofland, usu. imposed and recorded by a devel
oper ofa subdivision . The restrictions usu. promote a
general plan ofdevelopment by requiring all lot owners
to comply with the specified standards, esp. for build
ings. The restrictions run with the land. -Sometimes
also written declarations ofrestrictions. [Cases: Cov
enants <8='69.]
.declaration of rights. 1. An action in which a litigant
requests a court's assistance not because any rights have
been violated but because those rights are uncertain.
Examples include suits for a declaration oflegiti
macy, for declaration of nullity of marriage, and for
the authoritative interpretation of a will. 2. See declara
tory judgment under JUDGMENT. -Often shortened
to declaration.
declaration ofstate ofmind. See DECLARATION (6).
Declaration ofTaking Act. The federal law regulating
the government's taking ofprivate property for public
use under eminent domain. 40 USCA 3114 et seq.
Fair compensation must be paid for the property.
[Cases: Eminent Domain <8=' 122, 167.]
declaration oftrust. See DECLARATION (1).
declaration ofuse. Trademarks. A sworn statement sub
mitted by a registered mark's owner averring that the
registered mark is currently in use in commerce, and
providing a specimen or facsimile of the mark's use.
The 8 affidavit must be filed (1) between the fifth declaratory theory
and sixth year following registration, and (2) within the
year before the end of every ten-year period after the
date of registration. If a registered mark's owner fails
to file a 8 affidavit within the required time, the U.S.
Patent and Trademark Office may cancel the registra
tion. The term comes from 8 of the Lanham Act.
Also termed affidavit ofcontinued use; affidavit ofuse;
affidavit under 8; declaration ofcontinued use; decla
ration under 8; Section 8 declaration; statement ofuse.
Cf. INCONTESTABILITY STATUS; CANCELLATION. [Cases:
Trademarks <8=' 1254, 1304.]
declaration ofwar. See DECLARATION (3).
declaration under penalty of perjury. See DECLARA
TION (8).
declaration under 8. See DECLARATION OF USE.
declaration under 15. See DECLARATION OF INCON
TESTABILITY.
declarator. See action ofdeclarator under ACTION (4).
declarator of trust (di-klar-;)-t;)r or di-klair-;)-t<}r or
-tor). A common-law action against a trustee who
holds property under a title ex facie for the trustee's
own benefit.
declaratory (di-klar-;)-tor-ee or di-klair-), adj. 1. Clear;
manifest <a declaratory statute>. 2. Explanatory <a
declaratory judgment>.
declaratory, n. See action ofdeclarator under ACTION.
declaratory act. See declaratory statute under STATUTE.
declaratory decree. See declaratory judgment under
JUDGMENT.
declaratory judgment. See JUDGMENT.
declaratory-judgment act. (1921) A federal or state law
permitting parties to bring an action to determine
their legal rights and positions regarding a contro
versy not yet ripe for adjudication, as when an insur
ance company seeks a determination of coverage before
deciding whether to cover a claim. 28 USCA 2201,
2202. See declaratory judgment under JUDGMENT.
[Cases: Declaratory Judgment <8='21.]
declaratory part of a law. A portion of a law clearly
defining rights to be observed or wrongs to be
avoided.
declaratory precedent. See PRECEDENT.
declaratory relief. See RELIEF.
declaratory statute. See STATUTE.
declaratory theory. (1895) The belief that judges' deci
sions never make law but instead merely constitute
evidence ofwhat the law is. This antiquated view
held by such figures as Coke and Blackstone -is no
longer accepted.
''There are ... at least three good reasons why the declara
tory theory should have persisted for some time after the
modern English doctrine [of precedent] had begun to take
shape. In the first place, it appealed to believers in the
separation of powers, to whom anything in the nature of
judicial legislation would have been anathema. Secondly,
it concealed a fact which Bentham was anxious to expose,
namely, that judge-made law is retrospective in its effect.
If in December a court adjudges that someone is liable, in
consequence of his conduct during the previous January,
it would certainly appear to be legislating retrospectively,
unless the liability is based on an earlier Act of Parliament,
or unless the court is simply following a previous decision.
A way of disguising the retrospective character of such
a judgment would be to maintain the doctrine that the
court really was doing no more than state a rule which
anyone could have deduced from well-known prinCiples
or common usage, for the conduct in question would then
have been prohibited by the law as it stood in January.
The third reason for the persistence of the declaratory
theory may be thought to justify its retention in a revised
form today. When confronted with a novel point, judges
always tend to speak as though the answer is provided by
the com mon law." Rupert Cross &J.w. Harris, Precedent in
English Law 30 (4th ed. 1991).
declared trust. See express trust under TRUST.
de claro die (dee klair-oh dI-ee). [Law Latin "by clear
day"] By daylight.
de clauso fracto (dee klaw-zoh frak-toh). [Law Latin] Of
a breacl" ofclose. See CLAUSUM FREGIT.
de derico admittendo (dee kler-a-koh ad-mi-ten
doh), n. [Law Latin "for admitting a clerk"] Rist. A
writ of execution commanding a bishop to accept a
nominee for a vacant benefice . A benefice's patron
could enforce the right to fill a vacancy (the right of
presentation) in the Court ofCommon Pleas by writ of
quare impedit. Also termed admittendo derieo; ad
admittendum clericum. Cf. ADVOWSON; PRESENTATION;
QUARE IMPEDlT.
de clerico capto per statutum mercatorium deliberando
(dee kler-a-koh kap-toh par sta-tyoo-tam m<lr-ka~tor
ee-<lm di-lib-a-ran-doh), n. [Law Latin "for delivering
a clerk arrested on a statute merchant"] Hist. A writ
ordering the release of a clerk imprisoned for breach
ing a statute merchant. Often shortened to de clerieo
capto per statu tum mercatorium.
de clerico convieto commisso gaolae in defectu ordi
narii deliberando. See CLERICO CONVICTO COMMISSO
GAOLAE IN DEFECTU ORDINARII DELIBERANDO.
de derieo infra sacros ordines constituto, non eligendo
in officium (dee kler-a-koh in~fra sak-rohs or-di-neez
kon-sti-tyoo-toh, non el-i-jen-doh in a~fish-ee-dm).
[Law Latin "for not electing a clerk in holy orders to
office"] Rist. A writ ordering a cleric's release from
secular office . 1he writ was addressed to the bailiff
or other person who had forced a cleric to take a baili
wick or other secular office.
de clero (dee kleer-oh), n. [Law Latin "concerning the
clergy") The statute of 25 Edw. 3 addressing clerical
matters, including presentations and indictments.
declination (dek-Ia-nay-shan). (14c) 1. A deviation
from proper course <declination of duty>. 2. An act
of refusal <declination of a gift>. 3. A document filed
by a fiduciary who chooses not to serve. 4. At common
law, a plea to the court's jurisdiction by reason ofthe
judge's personal interest in the lawsuit. Also termed
(esp. in sense 2) declinature.
declinatory exception (di-khn-a~tor-ee). See EXCEP
TION (1). declinatory plea. Hist. A pretrial plea claiming benefit
ofclergy. Also |
CEP
TION (1). declinatory plea. Hist. A pretrial plea claiming benefit
ofclergy. Also termed plea ofsanctuary. See BENEFIT
OF CLERGY.
declining-balance depredation method. See DEPRECIA
TIO:'>! METHOD.
deeoctor (di-kok-tar or -tor), n. [fro Latin deciquere "to
waste") Roman law. A bankrupt; a defaulting debtor.
de coelo usque ad inferos (dee see~loh <ls-kwee ad in-f<lr
ohs). [Latin] From heaven to the center ofthe earth.
This phrase expressed a common-law maxim about the
extent ofa real-property owner's ownership interest in
the property.
decollatio (dee~kah-lay-shee-oh), n. [fro Latin de "off" +
collum "neck"] Hist. In England and Scotland, an act
ofbeheading. See DECAPITATION.
decolonization. Int'l law. The process by which a colonial
power divests itself of sovereignty over a colony
whether a territory, a protectorate, or a trust territory
so that the colony is granted autonomy and eventually
attains independence.
de communi dividundo. See aetio de communi dividundo
under ACTIO.
de comon droit (da kah~man droyt). [Law French] Rist.
By the common law; ofcommon right. See COMMON
LAW.
de computo (dee kom-pya-toh), n. [Law Latin "of
account"] Hist. A writ ordering a defendant to either
give a reasonable accounting to the plaintiff or explain
why such an accounting should not be required .
This was the foundation for an action of account. See
ACCOUNT (3).
de concilio curiae (dee kan-sil-ee-oh kyoor-ee-ee). [Law
Latin] By the advice ofthe court; by the direction ofthe
court. Also spelled de consillio curiae.
De Conflictu Legum (dee kan-flik-too lee~gam), n.
[Latin] Concerning the conflict oflaws . This is a title
to several works on the conflict oflaws.
De Conjunctim Feoffatis (dee bn-j<lngk-tam fee-fay-tis),
n. [Law Latin "concerning persons jOintly enfeoffed"]
Hist. The title of the statute of Edward I preventing
delays caused by tenants pleading, in novel disseisins
or other actions, that someone else was jointly seised
with them.
de consanguineo (dee kon-sang-gwin-ee-oh), n. See
COSINAGE.
de consanguinitate (dee kon-sang-gwin-i-tay-tee), n. See
COSINAGE.
de consilio (dee kan-sil-ee-oh). [Law Latin] Of counseL
This term often referred to the advice or counsel to
commit a crime.
deconstruction, n. (1969) In critical legal studies,
a method of analYZing legal principles or rules by
breaking down the supporting premises to show that
these premises might also advance the opposite rule
or result. Also termed trashing. deconstruction
ist, adj. & n.
471
de continuando assisam (dee bn-tin-yoo-an-doh a-SI
zam), n. [Law Latin "for continuing an assize"] A writ
to continue an assize.
de contumace capiendo (dee kon-tya-may-see kap
ee-en-doh), n. [Law Latin "for arresting a contuma
cious person"] Rist. A writ issuing out of the Court
of Chancery at the request of an ecclesiastical court
that has found a person to be in contempt. This writ
came into use after the Ecclesiastical Courts Act of 1813
removed ecclesiastical courts' power to excommunicate
litigants who failed to comply with a court order. Cf.
EXCOMMU:-.IICATO CAPIENDO.
"In 1812.the case of Mary Ann Dix a woman not of age,
who was imprisoned for two years on a writ de excommu
nicato capiendo for not paying costs in a suit for defama
tion ~aroused the Legislature. In the following year it was
enacted that excommunication should cease to exist as
part of the process of the ecclesiastical courts to enforce
appearance, and as a punishment for contempt.... [F]or
the writ de excommunicato capiendo was substituted the
writ de contumace capiendo; and the rules applying to
the older writ were made applicable to the new." 1 William
Holdsworth, A History ofEnglish Law 632 (7th ed. 1956).
de copia libelli deliberanda (dee koh-pee-a li-bel-I
di-lib-a-ran-da), n. [Law Latin "for delivering a copy of
a libel"] Rist. Eccles. law. A writ ordering an ecclesiasti
cal-court judge (such as the Dean ofArches) to provide
the defendant with a copy of the plaintiff's complaint_
de corona tore eligendo (dee kor-a-n<'>-tor-ee el-i-jen
doh), n. [Law Latin "for electing a coroner"] Rist. A
writ ordering a sheriff to call an election of a coroner
to fill a vacant office. See CORONER (2).
de coronatore exonerando (dee kor-<'>-n<'>-tor-ee eg-zon
a-ran-doh), n. [Law Latin "for removing a coroner"] A
writ ordering the sheriff to remove a coroner from office
for a reason stated in the writ. See CORONER (2).
"The coroner is chosen for life: but may be removed, either
by being made sheriff, or chosen verderor, which are
offices incompatible with the other; or by the king's writ de
coronatore exonerando, for a cause to be therein assigned,
as that he is engaged in other business, is incapacitated by
years or Sickness, hath not a sufficient estate in the county,
or lives in an inconvenient part of it." 1 William Blackstone,
Commentaries on the Laws ofEngland 336 (1765).
de corpore comitatus (dee kor-p<'>-ree kom-a-tay-tas).
[Law Latin] From the body of the county . This term
was esp. used to distinguish a body of the county at
large from a smaller area or de vicineto ("from a neigh
borhood").
de corrodio habendo (dee kd-roh-dee-oh h,)-ben-doh),
n. [Law Latin "writ for having a corody"] Rist. A writ to
obtain an allowance, esp. of meat or other sustenance,
from a religious house for a royal servant living there.
decorum. Parliamentary law. The customs offormality
and courtesy observed by the members and chair in
conducting business.
decoy, n. An undercover law-enforcement officer or agent
who acts as the willing subject ofan attempted or com
pleted crime in an attempt to lure a potential criminal
defendant into a situation that establishes the grounds
for a prosecution. decree
decoy, vb. Slang, To entice (a person) without force; to
inveigle <the victim was decoyed out ofher home> <the
defendant was decoyed into the county and then served
with process>. See ENTRAPMENT.
decoy letter. A letter prepared and mailed to detect a
criminal who has violated the postal or revenue laws.
[Cases: Postal Service C=;3L8, 42.)
decreased capacity. See CAPACITY (4).
decreaSing term insurance. See INSURANCE.
decreaSing-term life insurance. See decreasing term
insurance under IKSURANCE.
decree, n, (14c) 1. Traditionally, a judicial decision in
a court of equity, admiralty, divorce, or probate
similar to a judgment of a court of law <the judge's
decree in favor of the will's beneficiary>. 2. A court's
final judgment. 3. Any court order, but esp. one in a
matrimonial case <divorce decree>. See JUDGMENT;
ORDER (2); DECISION. [Cases: Divorce C=; 152.]
"The chief differences between decrees in equity and
judgments at common law are as follows: The former are
pronounced by courts of equity; the latter, by courts of
law. The former result from an investigation and determi
nation of the rights of the parties by the means provided
and according to the principles recognized in equity
jurisprudence; the latter result from an investigation and
determination made by the more limited means and more
inflexible rules of the common law. The former may be
adjusted to all the varieties of interest and of circumstance,
and may contain such directions as are needed to carry
them into effect, both in letter and in spirit; the latter are in
an invariable form, general in terms, and absolute for plain
tiff or defendant. And the former often enforce rights not
recognized by the common law .... The term 'judgment'
is frequently used in a broad sense to include decrees in
equity." 1 A.C. Freeman, A Treatise ofthe Law ofJudgments
12, at 23-24 (Edward W. Tuttle ed., 5th ed. 1925).
agreed decree. A final judgment, the terms ofwhich
are agreed to by the parties. [Cases: Judgment
71,91.]
consent decree. (1831) A court decree that all parties
agree to. -Also termed consent order. [Cases: Federal
Civil Procedure C=;2397; Judgment C=;87.]
custody decree. A decree awarding or modifying child
custody. The decree may be included in the decree
for a related proceeding such as a divorce -or it
may be a separate order. [Cases: Child Custody
521.]
decree absolute. (1826) A ripened decree nisi; a court's
decree that has become unconditional because the
time specified in the decree nisi has passed. -Also
termed order absolute; rule absolute.
decree absolvitor (ab-zol-vi-tar or -tor), n. Scots law.
A judgment for a defendant, either by a dismissal of
a claim or by an acquittaL Also termed decreet
absolvitor.
decree ad factum praestandum. Scots law. A court
order requiring that a party specifically perform an
act, such as to deliver property. See IMPRISONMENT
FOR DEBT.
472
decree arbitral (ahr-bi-tral), n. Scots law. 1. An arbi
tration award. 2. A form for an arbitration award.
Also termed decreet arbitral.
decree cognitionis causa (kog-nish-ee-oh-nis kaw-za),
n. Scots law. A judgment in a suit involving a plain
tiff creditor suing a debtor's heir to attach the heir's
lands. -Also termed decreet cognitionis causa.
decree condemnator (kon-dem-nay-tar or -tor), n.
Scots law. A judgment for the plaintiff. -Also termed
decreet condemnator.
decree dative. Scots law. A decree appointing an
executor.
decree nisi (nI-SI). (ISc) A court's decree that will
become absolute unless the adversely affected party
shows the court, within a specified time, why it should
be set aside. -Also termed nisi decree; order nisi; rule
nisi. See NISI.
decree ofconstitution. Scots law. A judgment declaring
the extent ofa debt or obligation.
decree ofdistribution. (1841) An instrument by which
heirs receive the property ofa deceased person. [Cases:
Executors and Administrators 50S.]
decree offorthcoming. Scots law. A court order that
commands a third party in possession of a debtor's
property to deliver the property to the creditor for
liquidation or satisfaction of a debt. -Also termed
decree offurthcuming
decree of insolvency. (I8c) A probate-court decree
declaring an estate's insolvency. [Cases: Executors
and Administrators 0:::>408-419.]
decree oflocality. Scots law. A Teind Court order allo
cating what share of a clergyman's stipend will be paid
by each heir in the parish.
decree ofmodification. Scots law. A Teind Court order
modifying a stipend for the clergy.
decree ofnullity. (Pc) A decree declaring a marriage
to be void ab initio. See ANNULMENT; NULLITY OF
MARRIAGE.
decree ofregistration. 1. A court order that quiets title
to land and directs recording of the title. 2. Scots law.
CONFESSION OF JUDGMENT. [Cases: Quieting Title
(;:-J52.]
decree ofvaluation. Scots law. A decree of the Teind
Court determining the extent and value ofa heritor's
teinds.
decree pro confesso (proh bn-fes-oh). (1821) Equity
practice. A decree entered in favor of the plaintiff as
a result of the defendant's failure to timely respond
to the allegations in the plaintiff's bill; esp., a decree
entered when the defendant has defaulted by not
appearing in court at the prescribed time. -Also
termed decree taken pro confesso. [Cases: Equity
417-420.]
"A decree pro confesso in equity is similar to a default
judgment in an action at law. If a defendant in an equity
suit fails to answer the plaintiff's petition within the pre
scri bed time period, the bill will be taken pro confesso, and a decree entered in favor of the plai ntiff ... However,
whereas a default judgment in an action at law effects an
admission of pleaded facts and conclusions of law ... a
decree pro confesso in an equity action admits only the
material and well pleaded facts in the petition and does not
admit the legal claims upon which the plaintiff seeks relief ..
27A Am. Jur. 2d Equity 249. at 733-34 (1996).
deficiency decree. See deficiency judgment under |
249. at 733-34 (1996).
deficiency decree. See deficiency judgment under
JUDGMENT.
divorce decree. A final judgment in a suit for divorce.
A divorce decree dissolves the marriage and
usu. resolves all matters concerning property and
children. Generally, matters concerning children
can be modified in a post-divorce action ifthere has
been a substantial change in circumstances. [Cases:
Divorce C::~152.]
final decree. Seefinal judgment under JUDGMENT.
interlocutory decree. See interlocutory judgment under
JUDGMENT.
decree nunc pro tunc. See judgment nunc pro tunc under
JUDGMENT.
decree offurthcuming. See decree offorthcoming under
DECREE.
decreet (di-kreet), n. [fro Latin decretum] Archaic Scots
law. A court's final judgment; a decree . Decree is now
the usual term.
decreet absolvitor (ab-zol-vi-tar or -tor), n. See decree
absolvitor under DECREE.
decreet arbitral (ahr-bi-tral), n. See decree arbitral
under DECREE.
decreet cognition is causa (kog-nish-ee-oh-nis kaw-za),
n. See decreet cognitionis causa under DECREE.
decreet condemnator (kon-dem-nay-t<'lf or -tor), n. See
decree condemnator under DECREE.
decree taken pro confesso. See decree pro confesso under
DECREE.
decrementum maris (dek-ra-men-tam mar-is). [Latin
"decrease ofthe sea"] The receding ofthe sea from the
land.
decrepit (di-krep-it), adj. (15c) (Of a person) disabled;
phYSically or mentally incompetent to such an extent
that the individual would be helpless in a personal
conflict with a person of ordinary health and
strength.
decreta (di-kree-ta), n. [Latin "decisions"] Roman law.
Judgments of magistrates; esp., sentences pronounced
by the emperor as the supreme judge. See DECRETUM.
"Decreta. In Roman law decisions of magistrates 9iven after
investigation of a case by cognitio .. and in particular,
decisions of the emperor as judge of first instance after
trial by cognitio, or as a judge of appeal. As the highest
authority in the State the emperor could interpret the law
freely and even introduce new principles. Consequently
imperial deCisions were authoritative interpretations of the
law or even innovatory and regarded as statements binding
for the future. and as such quoted by the jurists. They
were not only communicated to the parties but recorded
in the records of the imperial court and private persons
473 dedication
might obtain copies of them." David M. Walker, The Oxford
Companion to Law 343 (1980).
decretal (di-kree-t;:Il), adj. Of or relating to a decree.
decretal child support. See CHILD SUPPORT.
decretal interdict. See INTERDICT (1).
decretal order. See ORDER (2).
decretals (di-kree-tJlz), n. Eccles. law. Canonical epistles
written either by the Pope or by the Pope and his car
dinals to settle controversial matters; esp., the second
part of the Corpus juris Canonici, canonical epistles
consisting mainly of: (1) Decretales Gregorii Noni, a col
lection by Raymundus Barcinius, chaplain to Gregory
IX, dating from about 1227; (2) Decretales Bonifacii
Octavi, a collection by Boniface VIII in the year 1298;
(3) Ciementinae, a collection ofClement V, published in
the year 1308; and (4) the Extravagantes, a collection by
John XXII and other bishops. Also termed (in Law
Latin) Decretales. See CANON LAW.
decretist (di-kree-tist), n. In medieval universities, a law
student; esp., a student or commentator on Gratian's
Decretum.
decretum (di-kree-tdm), n. [Latin "a decision having
mandatory force"] 1. Roman law. A decision ofa mag
istrate, esp. a judgment by the emperor at first instance
or on appeaL _ A decretum of the emperor was a type
ofimperial constitution. 2. Eccles. law. An ecclesiastical
law, as distingUished from a secular law. See DECRETA.
Pl. decreta.
Decretum Gratiani (di-kree-tdm gray-shee-ay-m), n.
[Latin "Gratian's decree"] See CONCORDIA DlSCORDAN
TJUM CANONUM.
decriminalization, n. (1945) The legislative act or
process oflegalizing an illegal act <many doctors seek
the decriminalization of euthanasia>. Cf. CRIMINAL
rZATION (1). [Cases: Criminal LawC=> 15.] decrimi
nalize, vb.
decrowning. The act ofdepriving someone ofa crown.
decry (di-krI), vb. (17c) To speak disparagingly about
(someone or something).
de cujus (dee kYOO-jdS or kI-as). [Latin] From whom.
-This term is used to designate (1) the person by or
through whom another claimed something, or (2) the
person whose legal position is in issue.
de curia claudenda (dee kyoor-ee-a klaw-den-dd), n.
[Law Latin "of enclOSing a court"] Hist. A writ ordering
a person to build a wall or fence around his or her house
to avoid disturbing a neighbor.
decurio (di-kyoor-ee-oh), n. [Latin "a decurion"] Roman
law. A municipal senator belonging to a municipal
council responsible for managing the internal affairs
of the municipality.
de cursu (dee kar-s[y]oo). [Law Latin] Ofcourse. -This
term usu. refers to regular, formal proceedings as dis
tinguished from incidental, summary proceedings. de custode admittendo (dee b-stoh-dee ad-mi-ten
doh), n. [Law Latin "of admitting a guardian"] Hist. A
writ to admit a guardian.
de custode amovendo (dee kJ-stoh-dee ay-moh-ven
doh), n. [Law Latin "of removing a guardian"] Hist. A
writ to remove a guardian.
de custodia terrae et haeredis (dee kd-stoh-dee-a ter-ee
et her-J-dis), n. [Law Latin "of right ofward"] Hist. A
writ allowing a guardian in a knight's service to obtain
custody ofan infant ward.
de debito (dee deb-i-toh), n. [Law Latin "of debt"] Hist. A
writ ofdebt. -Sometimes shortened to debito.
de debitore in partes secando (dee deb-i-tor-ee in pahr
teez si-kan-doh). [Latin "of cutting a debtor in pieces"]
Roman law. The title of a law in the Twelve Tables,
meaning either literally to cut a debtor into pieces
or merely to divide the debtor's estate. See TWELVE
TABLES.
"DE DEBITORE IN PARTES SECANDO .. [Sjome writers contending
for the literal signification, while others have supposed it
to be only a figurative expression .... The latter view has
been adopted by Montesquieu, Bynkershoek, Heineccius
and Taylor .... The literal meaning, on the other hand, is
advocated by Aulus Gellius and other writers of antiquity,
and receives support from an expression (semoto omni
cruciatu) in the Roman Code itself .... This is also the
opinion of Gibbon, Gravina, Pothier, Hugo and Niebuhr."
I Alexander Burrill, A Law Dictionary and Glossary 432
(2d ed. 1867).
de deceptione (dee di-sep-shee-oh-nee), n. [Law Latin
"of deceit"] Hist. A writ available to a party who was
deceived and damaged by someone acting in the party's
name.
de deoneranda pro rata portionis (dee dee-on-d-ran-dd
proh ray-ta por-shee-oh-nis), n. [Law Latin "of the dis
burdening ofa pro rata share"] Hist. A writ for someone
who is forced to pay rent that others are supposed to
contribute to proportionately.
dedi (dee-dr). [Latin] Hist. I have given. _ Dedi is a con
veyancing term that implies a warranty of title. Cf.
CONCESSI.
"Dedi is a warranty in law to the feoffee and his heirs: as if
it be said in a feoffment A. B. hath given and granted, &c. it
is a warranty." Termes de fa Ley 148 (1st Am. ed. 1812).
dedication, n. (1809) Property. The donation ofland or
creation ofan easement for public use. [Cases: Dedica
tion C=>1-28.] -dedicate, vb. dedicatory, adj.
common-law dedication. (1858) A dedication made
without a statute, consisting in the owner's appropria
tion ofland, or an easement in it, for the benefit or use
of the public, and the acceptance, by or on behalf of
the land or easement. -Often shortened to dedica
tion. [Cases: Dedication C=>1-21.]
dedication by adverse user. (1895) A dedication arising
from the adverse, exclusive use by the public with the
actual or imputed knowledge and acquiescence of the
owner. [Cases: Dedication C=>20.J
express dedication. (1836) A dedication explicitly man
ifested by the owner. [Cases: Dedication C=> 17.J
implied dedication. (1837) A dedication presumed
by reasonable inference from the owner's conduct.
[Cases: Dedication C=:> 18-20.]
statutory dedication. (1852) A dedication for which
the necessary steps are statutorily prescribed, all of
which must be substantially followed for an effective
dedication. [Cases: Dedication C=:>22.]
tacit dedication. (1926) A dedication of property for
public use arising from silence or inactivity and
without an express agreement.
dedication and reservation. A dedication made with
reasonable conditions, restrictions, and limitations.
dedication day. See DAY.
de die in diem (dee dJ-ee in dI-am). [Law Latin] From
day to day; daily.
dedi et concessi (dee-dI et bn-ses-I). [Law Latin] I have
given and conveyed . These were the words generally
used to convey a gift.
dedimus et concessimus (ded-a-mas et kan-ses-i-mds).
[Law Latin] We have given and granted . These words
were used in a conveyance when there was more than
one grantor or when the grant was from the Crown.
dedimus potestatem (ded-a-m<ls poh-tes-tay-t<lm). [Law
Latin "we have given power"] 1. A commission issuing
from the court before which a case is pending, autho
rizing a person named in the commission to compel the
attendance of certain witnesses, to take their testimony
on the written interrogatories and cross-interrogatories
attached to the commission, to reduce the answers to
writing, and to send it sealed to the court issuing the
commission. 2. In England, a chancery writ commis
sioning the persons named in the writ to take certain
actions, including administering oaths to defendants
and justices of the peace . The writ was formerly
used to commission a person to take action such as
acknowledging a fine and appointing an attorney for
representation in court. Before the Statute of West
minster (1285), an attorney could not appear on behalf
ofa party without this writ. -Also termed dedimus
potestatem de attomo faciendo.
"Dedimus potestatem is a writ that lies where a man sues
in the king's court, or is sued, and cannot well travel, then
he shall have this writ directed to some justice, or other
discreet person in the country, to give him power to admit
some man for his attorney, or to levy a fine, or to take his
confession, or his answer, or other examination, as the
matter requires." Termes de la Ley 148 (lst Am. ed. 1812).
dediticii (ded-i-tish-ee-I or dee-di-tI-shee-I), n. pl.
[Latin "those who have surrendered"] Roman law. The
lowest class of freemen whose members were ineligi
ble for Roman citizenship, including enemies granted
freedom in exchange for surrender, or, under the Lex
Aelia Sentia, manumitted slaves convicted of a crime
in a court, or branded or put in chains by their former
owners. _ Dediticii who were formerly slaves were not
allowed to live within 100 miles of Rome. Justinian
abolished this status. Also spelled dedititii. -Sing.
dediticius, dedititius. "Dediticii ... were not reduced to slavery, but to a condition
quite analogous. They were not allowed to make a will, or
to take under one; they never obtained Roman citizenship.
and they could not come within one hundred miles of the
city of Rome." Andrew Stephenson, A History ofRoman Law
119, at 324 (1912).
"Slaves who before manumission had been subjected to
degrading punishment (e.g, had been branded or made to
fight in the arena) were given, on manumission, a special
status, viz. that of enemies surrendered at discretion (dedi
ricii). A dediticius, though free and not a slave, had none
of the rights of a citizen, could never under any circum
stances better his position (e.g. become a citizen), and was
not allowed to live within 100 miles of Rome." R.w. Leage,
Roman Private Law 67 (C.H. Ziegler ed., 2d ed. |
." R.w. Leage,
Roman Private Law 67 (C.H. Ziegler ed., 2d ed. 1942).
dedition (di-dish-<ln), n. [fro Latin deditio "give up"] (16c)
A surrender of something, such as property.
de diversis regulis juris antiqui (dee di-v~r-sis reg-ya-lis
joor-is an-tI-kwI). [Latin uof various rules of ancient
law"] Roman law. The last title in the Digest, containing
211 maxims. See DIGEST (2).
de dolo malo (dee doh-loh mal-oh). [Latin] Ofor based
on fraud. See ACTIO DE DOLO MALO.
de domo reparanda (dee doh-moh rep-a-ran-d<l), n.
[Law Latin "to repair a house"] Rist. A writ ordering a
cotenant to contribute to the expenses of maintaining
common property.
De Donis Conditionalibus (dee doh-nis bn-dish-ee
;,-nal-i-b<ls). An English statute, enacted in 1285, that
gave rise to the ability to create a fee tail. Often short
ened to De Donis. -Sometimes written de donis con
ditionalibus.
"[Tlhe statute de donis of 13 Edw. I. ... was intended to
check the judicial construction, that had, in a great degree,
discharged the conditional fee from the limitation imposed
by the grant. Under that statute, fees conditional were
changed into estates tail. , ... 4 James Kent, Commentar
ies on American Law*444 (George Comstock ed., 11th ed.
1866).
"[Alfter De Donis, the formula 'to A and the heirs of his
body' gave to A an estate known as an estate in fee tail.
Because A had no power to transfer an estate in fee simple
absolute, it became theoretically possible for persons like o to tie up the ownership of land in a single family for
hundreds of years. We say theoretically possible because by
1472 a way would be found for the tenant in tail (as A was
called) to transfer an estate in fee simple absolute despite
De Donis." Thomas F. Bergin & Paul G. Haskell, Preface to
Estates in Land and Future Interests 29 (2d ed, 1984).
de dote assignanda (dee doh-tee as-ig-nan-da), n. [Law
Latin "for assigning dower"] Rist. A writ ordering a
royal escheater to provide dower to a widow ofa tenant
holding an estate directly from the Crown.
de dote unde nil habet (dee doh-tee an-dee nil hay-bet),
n. [Law Latin "of dower whereof she has none"] A writ
ordering a tenant interfering with a widow's right to
dower to provide a reasonable dower. -Also termed
writ ofdower. Cf. UNDE NIHIL HABET.
"DE DOTE UNDE NIL HABET. This is a writ of right in its nature ....
It must be brought by the widow as demandant, against
the tenant of the freehold, that is, the heir or his alienee,
and its effect is to enable the former to recover from the
latter the seisin of a third part of the tenements in demand,
to be set forth to her in severalty by metes and bounds,
475 deed
together with damages and costs." I Alexander M. Burrill,
A Law Dictionary and Glossary 433 (2d ed. 1867).
deductible, adj. Capable ofbeing subtracted, esp. from
taxable income. See DEDUCTION (2).
deductible, n. (1929) 1. Under an insurance policy, the
portion of the loss to be borne by the insured before the
insurer becomes liable for payment. Cf. SELF-INSURED
RETENTION. [Cases: Insurance 2523.]
straight deductible. A deductible that is a specified,
fixed amount.
2. The insurance-policy clause specifying the amount
of this portion.
deduction, n. (I5c) 1. The act or process of subtracting
or taking away. 2. Tax. An amount subtracted from
gross income when calculating adjusted gross income,
or from adjusted gross income when calculating taxable
income. -Also termed tax deduction. Cf. EXEMPTION
(3); TAX CREDIT. [Cases: Internal Revenue (;:::>3270
3516; Taxation (;:::>3501-3523.]
additional standard deduction. (1956) The sum ofthe
additional amounts that a taxpayer who turns 65 or
becomes blind before the close of the taxable year is
entitled to deduct. [Cases: Internal Revenue (;:::>3295;
Taxation (;:::>3501.]
charitable deduction. (1925) A deduction for a contri
bution to a charitable enterprise that has qualified for
tax-exempt status in accordance with IRC (26 USCA)
501{c)(3) and is entitled to be deducted in full by the
donor from the taxable estate or from gross income.
See CHARITABLE CONTRIBUTION (2); CHARITABLE
ORGANIZATION. [Cases: Internal Revenue (;:::>3337;
Taxation <>~'3501.]
deduction in respect ofa decedent. (I949) A deduc
tion that accrues to the point of death but is not rec
ognizable on the decedent's final income-tax return
because of the accounting method used, such as an
accrued-interest expense ofa cash-basis debtor.
itemized deduction. (1943) An expense (such as a
medical expense, home-mortgage interest, or a
charitable contribution) that can be subtracted from
adjusted gross income to determine taxable income.
marital deduction. (1949) A federal tax deduction
allowed for lifetime and testamentary transfers from
one spouse to another. IRC (26 USCA) 2056, 2523.
[Cases: Internal Revenue (;:::>4169.]
miscellaneous itemized deduction. (1955) Generally,
an itemized deduction ofjob or investment expenses;
a deduction other than those allowable in comput
ing adjusted gross income, those enumerated in IRC
(26 USCA) 67(b), and personal exemptions . This
type of deduction is allowed only to an itemizing
taxpayer whose total miscellaneous itemized deduc
tions exceed a statutory percentage of adjusted gross
income.
standard deduction. (1944) A specified dollar amount
that a taxpayer can deduct from adjusted gross
income, instead ofitemizing deductions, to determine taxable income. [Cases: Internal Revenue <.r'::>3295;
Taxation (;:::::: 3501.]
3. The portion of a succession to which an heir is
entitled before a partition. 4. The act or process ofrea
soning from general propositions to a specific applica
tion or conclusion. Cf. INDUCTION (2). deduct (for
senses vb. deduce (for sense 4), vb.
deduction for new. See NEW-FOR-OLD (1).
deduction in respect ofa decedent. See DEDUCTION.
deductis debitis (di-d",k-tis deb-i-tis). [Latin] Hist. The
debts being deducted . Before an estate could be ascer
tained, the debts had to be deducted.
de ea re ita censuere (dee ee-a ree I-ta sen-s[y]oo-a-ree).
[Latin] Concerning that matter they have so decreed.
This phrase was used to record decrees ofthe Roman
senate. Abbr. d.e.r.i.c.
deed, n. (bef. 12c) 1. Something that is done or carried
out; an act or action. 2. A written instrument by which
land is conveyed. 3. At common law, any written instru
ment that is Signed, sealed, and delivered and that
conveys some interest in property. See special contract
&contract under seal under CONTRACT. Also termed
(in senses 2 & 3) evidence oftitle. Cf. CONVEYANCE; BILL
OF SALE. deed, vb.
"A deed is a writing sealed and delivered. For if either a
parchment without writing be delivered as one's deed,
yet it is not his deed, though an obligation be afterwards
written in it: or if it be a writing but not sealed at the time of
the delivery of it as his deed, it is a scrole and not his deed.
Or if I make and seal a deed, and the party take it without
my delivery. I may plead it is not my deed." Sir Henry Finch,
Law, or a Discourse Thereof 108 (1759).
"What then is a deed? Unfortunately the word is not free
from ambiguity. In the original and technical sense a deed
is a written instrument under the seal of the party execut
ing it. Because, however, of the wide use of such instru
ments in the conveyance of real estate, it has come to
mean in popular acceptance any formal conveyance for
the transfer of land or of an interest therein. The dual use
of the term has crept into the language of courts and law
writers, so that in the reading of cases it is difficult to
determine whether the word is used in the first and original
sense, or whether it connotes a formal instrument of the
type ordinarily employed for the conveyance of land." Ray
Andrews Brown, The Law of Personal Property 46, at
118-19 (2d ed. 1955).
"All deeds are documents. but not all documents are deeds.
For instance, a legend chalked on a brick wall, or a writing
tattooed on a sailor's back may be documents but they
are not deeds. A deed is, therefore, a particular kind of
document. It must be a writing and a writing on paper or
its like, e.g., vellum or parchment. Any instrument under
seal is a deed if made between private persons. It must be
signed, sea/ed, and delivered. A deed must either (al effect
the transference of an interest, right or property. or (b)
create an obligation binding on some person or persons, or
(c) confirm some act whereby an interest, right, or property
has already passed." Gerald Dworkin, Odgers' Construction
ofDeeds and Stawtes 1 (5th ed. 1967).
absolute deed. (17c) A deed that conveys title without
condition or encumbrance. -Also termed deed
absolute.
administrator's deed. A document that conveys
property owned by a person who has died intestate.
bargain-and-sale deed. (1972) A deed that convevs
property to a buyer for valuable consideration b~t
that lacks any guarantee from the seller about the
of the title. See BARGAIN AND SALE. [Cases:
composition deed. A deed reflecting the terms of an
agreement between a debtor and a creditor to dis
charge or adjust a debt. [Cases: Debtor and Creditor
1O.J
counterdeed. A secret deed, executed either before a
notary or under a private seal, that voids, invalidates,
or alters a public deed.
deathbed deed. Rare. A deed executed by a grantor
shortly before death . The grantor need not be aware
that he or she is near death when the deed is executed.
Deeds (;:=68(3), 70(7), 72(2).]
deed absolute. See absolute deed.
deed in fee. (18c) A deed conveying the title to land in
fee simple, usu. with covenants.
deed in lieu offoreclosure. (1934) A deed by which a
borrower conveys fee-simple title to a lender in sat
isfaction of a mortgage debt and as a substitute for
foreclosure . This deed is often referred to simply as
"deed in lieu." [Cases: Mortgages ~~293.]
deed ofcovenant. (17c) A deed to do something, such
as a document providing for periodic payments by
one party to another (usu. a charity) for tax-saving
purposes. The transferor can deduct taxes from the
payment and, in some cases, the recipient can reclaim
the deducted tax.
deed ofdistribution. A fiduciary's deed conveying a
decedent's real estate.
deed ofgift. (16c) A deed executed and delivered
without consideration. -Also termed gratuitous
deed.
deed of inspectorship. Hist. An instrument reflect
ing an agreement between a debtor and a creditor to
appoint a receiver to oversee the winding up of the
debtor's affairs on behalfof the creditor.
deed ofpartition. (18c) A deed that divides land held
by joint tenants, tenants in common, or coparceners.
[Cases: Partition (::::;,96.]
deed ofreconveyance. A deed conveying title to real
property from a trustee to a grantor when a loan is
repaid. Cf. deed oftrust.
deed ofrelease. A deed that surrenders full title to a
piece of property upon payment or performance of
specified conditions.
deed ofseparation. An instrument governing a spouse's
separation and maintenance. [Cases: Husband and
Wife
deed ojsettlement. 1. A deed to settle something,
such as the distribution of property in a marriage.
2. English law. A deed formerly used to form a jOint
stock company. deed of trust. (17c) A deed conveying title to real
property to a trustee as security until the grantor
repays a loan. This type of deed resembles a
mortgage. -Also termed trust trust indenture;
indemnity mortgage; common-law mortgage. Cf. deed
ofreconveyance. [Cases: Mortgages (;:=8.]
deed poll. (16c) A deed made by and binding on only
one party, or on two or more parties having similar
interests. It is so called because, traditionally, the
parchment was "polled" (that is, shaved) so that it
would be even at the top (unlike |
parchment was "polled" (that is, shaved) so that it
would be even at the top (unlike an indenture).
Also spelled deed-poll. Cf. INDENTURE.
deed to lead uses. A common-law deed prepared before
an action for a fine or common recovery to show the
object ofthose actions.
deed without covenants. See 'luitclaim deed.
defeasible deed. (1802) A deed containing a condition
subsequent causing title to the property to revert to
the grantor or pass to a third party.
derivative deed. See secondary conveyance under CON
VEYANCE.
disentailing deed. Hist. A tenant-in-tail's assurance
that the estate tail will be barred and converted into
an estate in fee. The Fines and Recoveries Act (3
& 4 Will. 4 ch. 74) introduced this way of barring
an entail. It authorized nearly every tenant in tail, if
certain conditions were met, to dispose ofthe land in
fee simple absolute and thus to defeat the rights ofall
persons claiming under the tenant.
donation deed. A deed granted by the government to
a person who either satisfies the statutory conditions
in a donation act or redeems a bounty-land warrant.
See DONATION ACT; BOUNTY-LAND WARRANT. [Cases:
Public Lands (;:=42.J
full-covenant-and-warranty deed. See warranty
deed.
general warranty deed. See warranty deed.
gift deed. (1864) A deed given for a nominal sum or for
love and affection.
good deed. A deed that conveys good title as opposed
to a deed that is merely good in form. Also termed
lawful deed.
grant deed. (1891) A deed containing, or having implied
by law, some but not all of the usual covenants oftitle;
esp., a deed in which the grantor warrants that he or
she (1) has not previously conveyed the estate being
granted, (2) has not encumbered the property except
as noted in the deed, and (3) will convey to the grantee
any title to the property acquired after the date of
the deed.
gratuitous deed. See deed ofgift.
inclusive deed. See inclusive grant under GRANT.
indented deed. See INDENTURE (2).
latent deed. A deed kept in a strongbox or other secret
place, usu. for 20 years or more.
lawful deed. See good deed.
mineral deed. A conveyance of an interest in the
minerals in or under the land. [Cases: Mines and
Minerals
mortgage deed. The instrument creating a mortgage. _
A mortgage deed typically must contain (1) the name
ofthe mortgagor, (2) words of grant or conveyance, (3)
the name ofthe mortgagee, (4) a property description
sufficient to identify the mortgaged premises, (5) the
mortgagor's signature, and (6) an acknowledgment.
To be effective and binding, a mortgage deed must
also be delivered. [Cases: Mortgages ~42.1
onerous deed. Scots law. A deed given in exchange for
a valuable consideration, often as part of a marriage
settlement.
quitclaim deed. (I8c) A deed that conveys a grantor's
complete interest or claim in certain real property
but that neither warrants nor professes that the title is
valid. Often shortened to quitclaim. -Also termed
deed without covenants. Cf. warranty deed. [Cases:
Deeds 121.]
"A quitclaim deed purports to convey only the grantor's
present interest in the land, if any, rather than the land
itself. Since such a deed purports to convey whatever
interest the grantor has at the time, its use excludes any
implication that he has good title, or any title at all. Such a
deed in no way obligates the grantor. If he has no interest,
none will be conveyed. If he acquires an interest after exe
cuting the deed, he retains such interest. If, however, the
grantor in such deed has complete ownership at the time
of executing the deed, the deed is suffiCient to pass such
ownership. .. A seller who knows that his title is bad or
who does not know whether his title is good or bad usually
uses a quitclaim deed in conveying." Robert Kratovil, Real
Estate Law49 (6th ed. 1974).
release deed. A deed that is issued once a mortgage has
been discharged, explicitly releasing and reconveying
to the mortgagor the entire interest conveyed by an
earlier deed of trust. -Also termed reconveyance;
satisfaction; release. [Cases: Mortgages ~309.1
sheriff's deed. A deed that gives ownership rights in
property bought at a sheriff's sale. [Cases: Execution
(;::3031
special warranty deed. (1808) 1. A deed in which the
grantor covenants to defend the title against only
those claims and demands of the grantor and those
claiming by and under the grantor. [Cases: Covenants
67.1 2. In a few jurisdictions, a quitclaim deed.
Cf. warranty deed. [Cases: Deeds ~25, 12Ll
statutory deed. (1832) A warranty-deed form pre
scribed by state law and containing certain warran
ties and covenants even though they are not included
in the printed form.
support deed. A deed by which a person (usu. a parent)
conveys land to another (usu. a son or daughter) with
the understanding that the grantee will support the
grantor for life. _ Support deeds often result in liti
gation.
tax deed. A deed showing the transfer of title to real
property sold for the nonpayment of taxes. See office grant under GRANT; tax sale under SALE. Cf. TAX CER
TIFICATE. [Cases: Taxation
title deed. (18c) A deed that evidences a person's legal
ownership of property. See TITLE.
trust deed. See deed oftrust.
warranty deed. (1802) A deed containing one or more
covenants oftide; esp., a deed that expressly guaran
tees the grantor's good, clear title and that contains
covenants concerning the quality of title, includ
ing warranties of seisin, quiet enjoyment, right to
convey, freedom from encumbrances, and defense
of title against all claims. Also termed general
warranty deed;full-covenant-and-warranty deed. See
WARRANTY (1). Cf. quitclaim deed; special warranty
deed. [Cases: Covenants 0'='46-48, 67.J
wild deed. (1914) A recorded deed that is not in the
chain oftitle, usu. because a previous instrument con
nected to the chain of title has not been recorded.
deed box. Archaic. A box in which deeds of land title
are traditionally kept. _ Such a box is considered an
heirloom in the strict sense. See HEIRLOOM (1).
deed ofagency. A revocable, voluntary trust for payment
ofa debt.
deed of crime. See ACTUS REGS.
deed of feoffment. See FEOFFMENT (3).
deep of inspectorship. See DEED.
deed of reconveyance. See DEED.
deed of trust. See DEED.
de ejectione custodiae (dee ee-jek-shee-oh-nee bs
toh-dee-ee). [Latin "ejectment of a ward"] Rist. A writ
available to a guardian after being ejected from the
ward's land during the ward's minority. -The writ lay
to recover the land or person of the ward, or both. The
French equivalent was ejectment de garde.
de ejectione firmae (dee ee-jek-shee-oh-nee f3r-mee).
[Latin "ejectment of farm"] Rist. A writ or action of
trespass to obtain the return of lands or tenements to
a lessee for a term of years that had been ousted by the
lessor or by a reversioner, remainderman, or stranger.
_ The lessee was then entitled to a writ of ejection to
recover, at first, damages for the trespass only, but later
the term itself, or the remainder of it, with damages.
This action is the foundation of the modern action of
ejectment. See EJECTMENT.
"A writ then of ejectione firmae, or action of trespass in
ejectment, lieth, where lands or tenements are let for a
term of years; and afterwards the lessor, reverSioner,
remainder-man, or any stranger, doth eject or oust the
lessee of his term. In this case he shall have his writ of
ejection, to call the defendant to answer for entering on
the lands so demised to the plaintiff for a term that is not
yet expired, and ejecting him. And by this writ the plaintiff
shall recover back his term, or the remainder of it, with
damages." 3 William Blackstone, Commentaries on the Laws
ofEngland 199 (1768).
deem, vb. (bef. 12c) 1. To treat (something) as if (1) it
were really something else, or (2) it has qualities that it
does not have <although the document was not in fact
478 deemed transferor
signed until April 21, it explicitly states that it must
be deemed to have been signed on April 14>. 2. To
consider, think, or judge <she deemed it necessary>.
'''Deem' has been traditionally considered to be a useful
word when it is necessary to establish a legal fiction either
positively by 'deeming' something to be what it is not or
negatively by 'deeming' something not to be what it is....
All other uses of the word should be avoided .... Phrases
like 'if he deems fit' or 'as he deems necessary' or 'nothing
in this Act shall be deemed to .. .' are objectionable as
unnecessary deviations from common language. 'Thinks'
or 'considers' are preferable in the first two examples and
'construed' or 'interpreted' in the third.... 'Deeming'
creates an artificiality and artificiality should not be
resorted to if it can be avoided," G.c. Thornton, Legislative
Drafting 99 (4th ed. 1996).
deemed transferor. (1988) Tax. A person who holds an
interest in a generation-skipping trust on behalf of a
beneficiary, and whose death will trigger the imposi
tion of a generation-skipping transfer tax . A deemed
transferor is often a child ofthe settlor. For example, a
grandfather could establish a trust with income payable
for life to his son (who, because he is only one genera
tion away from his father, is also known as a nonskip
person) with the remainder to his grandson, a bene
ficiary also known as the skip person. When the son
dies, the trust will be included in his gross estate for
determining the generation-skipping transfer tax. IRC
(26 USCA) 2601-2663. See GENERATION-SKIPPING
TRANSFER; generation-skipping transfer tax under TAX;
generation-skipping trust under TRUST; SKIP PERSON;
NONSKIP PERSON.
deep issue. See ISSUE (1).
deep link. Intellectual property. A Web-page hyperlink
that, when clicked, opens a page on another website
other than that site's home page. Some plaintiffs
have argued, with mixed success, that bypassing their
home page in this manner deprives them of advertising
revenue. Deep linking does not violate copyright ifthe
portal provided does not copy any of the linked page's
content. And if there is no confusion about the source
of the information, deep linking does not constitute
unfair competition.
deep pocket. (1975) 1. (pl.) Substantial wealth and
resources <the plaintiff nonsuited the individuals and
targeted the corporation with deep pockets>. 2. A
person or entity with substantial wealth and resources
against which a claim may be made or a judgment may
be taken <that national insurance company is a favorite
deep pocket among plaintiff's lawyers>.
Deep Rock doctrine. Bankruptcy. The principle by which
unfair or inequitable claims presented by controlling
shareholders of bankrupt corporations may be subor
dinated to claims of general or trade creditors . The
doctrine is named for a corporation that made fraud
ulent transfers to its parent corporation in Taylor v.
Standard Gas & Elee. Co., 306 U.S. 307, 59 S.Ct. 543
(1939). [Cases: BankruptcyC=>2968.]
de escaeta (dee es-kee-t;), n. [Law Latin "of escheat"]
Hist. A writ authorizing a lord to recover land when the
lord's tenant died without an heir. See ESCHEAT. de-escalation clause. A contractual provision to decrease
the price of something if specified costs decrease. Cf.
ESCALATOR CLAUSE (1).
de escambio monetae (dee es-kam-bee-oh m;)-nee-tee),
n. [Law Latin "of exchange of money"] Hist. A writ
authorizing a merchant to prepare a bill of exchange.
de essendo quietum de theolonio (dee e-sen-doh kWI
ee-t;)m dee thee-;)-loh-nee-oh), n. [Law Latin "of being
quit of toll"] Hist. A writ authorizing a person who is
exempt from paying a toll to enforce the exemption
without harassment. Also spelled de essendo quietum
de tolonio.
de essentia (dee e-sen-shee-;). [Law Latin] Hist. Of the
essence; essential.
de essonio de malo leeti (dee e-soh-nee-oh dee mal-oh
lek-tr), n. [Law Latin "of essoin ofmalum lecti (sickness
ofbed)"] Hist. A writ ordering a determination whether
a person is truly sick after the person has issued an |
(sickness
ofbed)"] Hist. A writ ordering a determination whether
a person is truly sick after the person has issued an
essoin claiming sickness as an excuse for not appear
ing in court.
de estoveriis habendis (dee es-t<)-veer-ee-is h<)-ben
dis), n. [Law Latin "for haVing estovers"] Hist. A writ
allowing a wife divorced a mensa et thoro ("from bed
and board") to recover alimony or estovers. -Often
shorted to estoveriis habendis.
"In case of divorce a mensa et thoro, the law allows alimony
to the wife which is that allowance, which is made to a
woman for her support out of her husband's estate; being
settled at the discretion of the ecclesiastical judge, on
consideration of all the circumstances of the case. This
is sometimes called her estovers for which, if he refuses
payment, there is; (besides the ordinary process of excom
munication) a writ at common law de estoveriis habendis,
in order to recover it .... It is generally proportioned to
the rank and quality of the parties. But in case of elope
ment, and living with an adulterer, the law allows her no
alimony." 1 William Blackstone, Commentaries on the Laws
of England 429 (1765).
de estrepamento (dee e-strep-;)-men-toh), n. [Law
Latin "of enstrepment"] Hist. A writ to prevent waste
by a tenant while a suit to recover the land is pending
against the tenant. Because this writ was only auxil
iary to a real action to recover land, and because equity
afforded the same relief by injunction, the writ fell into
disuse and was abolished by 3 & 4 Will. 4, ch. 27.
Also termed writ ofestrepement. See ESTREPEMENT.
de eu et trene (d;) yoo ay trayn). [French] Hist. Of water
and whip ofthree cords . This term referred to a neife
who, as a servant, could be corporally punished. See
NEIPE.
de eve et de treve (d;) ev ay d;) trev). [Law French] Hist.
From grandfather and great-grandfather's great-grand
father. This phrase described the ancestral rights of
lords to their villeins.
de excommunicato capiendo (dee eks-k;)-myoo-ni
kay-toh kap-ee-en-doh), n. [Law Latin "for taking an
excommunicated person"] Hist. Eccles. law. A writ
ordering a sheriff to imprison an excommunicated
person until the person reconciled with the church .
479
It was replaced by the writ de contumace capiendo. See
DE CONTUMACE CAPIE:-mo.
de excommunicato deliberando (dee eks-b-myoo-ni
kay-toh di-lib-;)-ran-doh), n. [Law Latin "for delivering
an excommunicated person"] Hist. Eccles. law. A writ
releasing an excommunicated person from prison upon
a certification by the person's superior that the person
has reconciled with the church.
de excommunicato recapiendo (dee eks-k;)-myoo-ni
kay-toh ri-kap-ee-en-doh), n. [Law Latin "for retaking
an excommunicated person"] Hist. Eccles. law. A writ
ordering the rearrest of an excommunicated person
who had been released but had not reconciled with the
church or given security for a reconciliation.
de excusationibus (dee ek-skyoo-zay-shee-oh-ni-b;Js).
[Latin "of excuses"] Roman law. The first title of the
27th book of the Digest, containing a person's legal
excuses from serving as tutor or curator . It is pri
marily drawn from the Greek work ofHerennius Mod
estinus. See DIGEST (2).
de executione facienda in withernamium (dee ek-s;l
kyoo-shee-oh-nee fay-shee-en-d;l in with-;lr-nay
mee-;Jm), n. [Law Latin "for making execution in
withernam"] Hist. A writ ofexecution in withernam .
This is a type ofcapis in withernam directing the sheriff
to take from the defendant goods equal in value to the
goods that the defendant took from the plaintiff.
de executione judicii (dee ek-s;l-kyoo-shee-oh-nee joo
dish-ee-l), n. [Law Latin "of execution of judgment"]
Hist. A writ ordering a sheriff or bailiff to execute a
judgment.
de exemplificatione (dee ig-zem -pli -fi-kay-shee-oh -nee),
n. [Law Latin "of exemplification"] A writ ordering the
transcription ofan original record.
de exoneratione sectae (dee ig-zon-a-ray-shee-oh-nee
sek-tee), n. [Law Latin "of exoneration of suit"] Hist. A
writ exempting the king's ward from being sued in any
court lower than the Court of Common Pleas (such as
a county court, hundred court, leet, or court baron)
during the time of the wardship.
de expensis civium et burgensium (dee ek-spen-sis siv
ee-am et b;Jr-jen-see-am), n. [Law Latin "for levying
the expenses of burgesses"] Hist. A writ ordering the
sheriff to levy the expenses ofeach citizen and burgess
of Parliament.
de expensis militum levan dis (dee ek-spen-sis mil-;)- tam
l;l-van-dis), n. [Law Latin "for levying the expenses of
knights"] Hist. A writ ordering the sheriff to levy an
allowance for knights of the shire in Parliament.
deface (di-fays), vb. (14c) 1. To mar or destroy (a written
instrument, signature, or inscription) by obliteration,
erasure, or superinscription. 2. To detract from the
value of (a coin) by punching, clipping, cutting, or
shaving. 3. To mar or injure (a building, monument,
or other structure). defacement, n.
defacere. See DIFFACERE. defamation
de facto (di fak-toh also dee or day), adj. [Law Latin "in
point of fact"] (17c) 1. Actual; existing in fact; having
effect even though not formally or legally recognized
<a de facto contract> 2. Illegitimate but in effect <a de
facto government>. Cf. DE JURE.
de facto adoption. See ADOPTION.
de facto blockade. See BLOCKADE.
de facto contract ofsale. See CONTRACT.
I de facto corporation. See CORPORATION.
de facto court. See COURT.
de facto dissolution. See DISSOLUTION.
de facto father. See de facto parent under PARENT.
de facto government. See GOVER):!MENT.
de facto judge. See JUDGE.
de facto marriage. See MARRIAGE (1).
de facto merger. See MERGER.
de facto mother. See de facto parent under PARENT.
de facto officer. See officer de facto under OFFICER (1).
de facto parent. See PARENT.
de facto segregation. See SEGREGATION.
de facto stepparent adoption. See second-parent
adoption under ADOPTIO):!.
de facto taking. See TAKING (2).
defalcation (dee-fal-kay-shan), n. (15c) 1. EMBEZZLE
MENT. 2. Loosely, the failure to meet an obligation;
a nonfraudulent default. 3. Archaic. A deduction; a
setoff. -defalcate (di-fal-kayt or dee-), vb. -defal
cator, n.
defalk (di-fawlk), vb. Archaic. To deduct (a debt); to set
off (a claim).
de falso judicio (dee fal-soh or fawl-soh joo-dish-ee-oh),
n. [Law Latin "of false judgment"] Hist. A writ of false
judgment; a writ to reverse an inferior court's ruling.
de falso moneta (dee fal-soh or fawl-soh mah-nee-ta),
n. [Law Latin "of false money"1 Hist. The statute of
Edward I providing that persons importing certain
coins (called "pollards" and crokards") would forfeit
both their goods and their lives.
defamacast (di-fam-a-kast). (1997) Defamation by tele
vision or radio broadcast . The word was first used
in American Broadcasting-Paramount Theatres, Inc.
v. Simpson, 126 S.E.2d 873, 879 (Ga. Ct. App. 1962).
Although Prosser called it "a barbarous word" (William
Prosser, The Law ofTorts 753 [4th ed. 1971]), another
authority has said'that "[t1he word seems to be quite
apt" (Laurence H. Eldredge, The Law ofDefamation
12, at 77 [1978]). See DEFAMATION.
defamation, n. (14c) 1. The act of harming the reputa
tion of another by making a false statement to a third
person . Ifthe alleged defamation involves a matter of
public concern, the plaintiff is constitutionally required
to prove both the statement's falsity and the defen
dant's fault. 2. A false written or oral statement that
damages another's reputation. See LIBEL; SLANDER. Cf.
480 defamation privilege
DISPARAGEMENT. [Cases: Libel and Slander ~1]
defame, vb.
"Defamation is the publication of a statement which
tends to lower a person in the estimation of rightthinking
members of society generally; or which tends to make
them shun or avoid that person." P.H. Winfield, A Textbook
of the Law of Tort 72, at 242 (5th ed. 1950).
"The wrong of defamation consists in the publication of a
false and defamatory statement concerning another person
without lawful justification. That person must be in being.
Hence not only does an action of defamation not survive
for or against the estate of a deceased person, but a state
ment about a deceased or unborn person is not actionable
at the suit of his relatives, however great their pain and
distress, unless the statement is in some way defamatory
ofthem." R.F.V. Heuston, Salmond on the Law ofTorts 138
(17th ed. 1977).
"For entirely too long a period of time, English and
American law have recognized two distinct kinds of defa
mation based solely on the form in which it is published.
Oral defamation is slander; written defamation is libel.
Libel is a crime and a tort which subjects the defamer to
tort liability without proof of special damages. Slander is
not a common law crime and, with certain exceptions, does
not subject the defamer to liability unless there is proof of
special damages. Under this distinction in form alone the
defamatory letter read only by its addressee and burned to
ashes after being read is a more serious defamation than
a defamatory statement spoken to an audience of 3,000
community leaders and molders of public opinion. This is
utterly absurd and completely indefensible ...." Laurence
H. Eldredge, The Law ofDefamation 12, at 77 (1978).
"Defamation ... is involved in two related harms, libel and
slander. A familiar statement is that libel is written whereas
slander is oral. This covers the idea in a general way but
tends to mislead because defamation may be published
without the use of words and hence be neither written nor
oral. Thus libel may be perpetrated by hanging a person in
effigy and slander, by sign or gesture." Rollin M. Perkins &
Ronald N. Boyce, Criminal Law489 (3d ed. 1982).
defamation per quod. (1915) Defamation that either
(1) is not apparent but is proved by extrinsic evidence
showing its injurious meaning or (2) is apparent but is
not a statement that is actionable per se. [Cases: Libel
and Slander ~33.]
defamation per se. (1928) A statement that is defama
tory in and ofitself and is not capable ofan innocent
meaning. [Cases: Libel and Slander ~33.]
trade defamation. The damaging of a business by a
false statement that tends to diminish the reputation
of that business. Trade defamation may be trade
libel if it is recorded, or trade slander if it is not.
Also termed commercial defamation. Cf. TRADE DIS
PARAGEMENT. [Cases: Libel and Slander ~130.]
defamation privilege. See litigation privilege under
PRIVILEGE (1).
defamatory, adj. (16c) (Of a statement or communica
tion) tending to harm a person's reputation, usu. by
subjecting the person to public contempt, disgrace, or
ridicule, or by adversely affecting the person's business.
[Cases: Libel and Slander ~6-14.]
"A communication is defamatory if it tends so to harm the
reputation of another as to lower him in the estimation of
the community or to deter third persons from associating
or dealing with him." Restatement (First) of Torts 559
(1938). "No exhaustive definition of 'defamatory' emerges from
the cases for, as Lord Reid once said, it is not for the judges
to 'frame definitions or to lay down hard and fast rules. It
is their function to enunciate principles and much that they
say is intended to be illustrative or explanatory and not to
be definitive' [Cassell & Co. Ltd. v. Broome (1972) AC 1027,
1085]. One can nevertheless achieve a working descrip
tion by combining two statements, namely: a defamatory
statement is one which injures the reputation of another
by exposing him to hatred, contempt, or ridicule, or which
tends |
one which injures the reputation of another
by exposing him to hatred, contempt, or ridicule, or which
tends to lower him in the esteem of right-thinking members
of society." R.w.M. Dias & B.S. Markesinis, Tort Law423-24
(2d ed. 1989).
defamatory communication. See DEFAMATORY STATE
MENT.
defamatory libel. See LIBEL (1).
defamatory propaganda. See PROPAGANDA.
defamatory statement. A statement that tends to injure
the reputation ofa person referred to in it. The state
ment is likely to lower that person in the estimation
of reasonable people and in particular to cause that
person to be regarded with feelings of hatred, contempt,
ridicule, fear, or dislike. -Also termed defamatory
communication. [Cases: Libel and Slander ~6-14.]
defames (di-fay-meez or di-fahm), adj. [Law French]
Infamous.
default (di-fawlt also dee-fawlt), n. (13c) The omission
or failure to perform a legal or contractual duty; esp.,
the failure to pay a debt when due. [Cases: Contracts
~312, 315.]
default (di-fawlt), vb. 1. To be neglectful; esp., to fail to
perform a contractual obligation. 2. To fail to appear
or answer. 3. To enter a default judgment against (a
litigant).
defaultant (di-fawl-tant), adj. In default; having
defaulted. See DEFAULTER.
defaulter. 1. A person who is in default. 2. A person who
misappropriates or fails to account for money held
in the person's official or fiduciary capacity. -Also
termed defaultant.
default judgment. (16c) 1. A judgment entered against a
defendant who has failed to plead or otherwise defend
against the plaintiff's claim. [Cases: Federal Civil Pro
cedure ~2411; Judgment ~92.] 2. A judgment
entered as a penalty against a party who does not
comply with an order, esp. an order to comply with
a discovery request. See Fed. R. Civ. P. 55(b). -Also
termed judgment by default. See JUDGMENT. [Cases:
Federal Civil Procedure ~1278, 2820; Pretrial Pro
cedure ~46.]
nil-dicit default judgment (nil dI-sit). [Latin "he says
nothing"] (2002) A judgment for the plaintiff entered
after the defendant fails to file a timely answer, often
after the defendant appeared in the case by filing a
preliminary motion. -Often shortened to nihil
dicit. -Also termed nihil-dicit default judgment;
judgment by nil dicit. [Cases: Judgment ~106.]
no-answer default judgment. (1979) A judgment for
the plaintiff entered after the defendant fails to timely
481
answer or otherwise appear. [Cases: Judgment cp
106.J
post-answer default judgment. (l979) A judgment
for the plaintiff entered after the defendant files an
answer, but fails to appear at trial or otherwise provide
a defense on the merits. [Cases: Judgment 109.]
default jurisdiction. See JURISDICTION.
default of issue. See FAILURE OF ISSUE.
default rule. See RULE (1).
defeasance (di-feez-;mts), n. (I5c) 1. An annulment or
abrogation; VOIDANCE. 2. The fact or an instance of
bringing 'an estate or status to an end, esp. by condi
tiona I limitation. 3. A condition upon the fulfillment of
which a deed or other instrument is defeated or made
void; a contractual provision containing such a condi
tion. -Also termed defeasance clause. 4. Hist. A col
lateral deed made simultaneously with a conveyance
and containing a condition by which the main deed
might be defeated or made void. Also spelled defea
zance. -defease, vb.
"A defeazance is a collateral deed, made at the same time
with a feoffment or other conveyance, containing certain
conditions, upon the performance ofwhich the estate then
created may be defeated or totally undone." 2 William Black
stone, Commentaries on the Laws ofEngland 327 (1766).
defeasance clause. A mortgage provision stating that the
conveyance to the mortgagee will be ineffective if the
mortgagor pays the debt on time. See DEFEASANCE (3).
[Cases: Mortgages
defeasible, adj. (16c) (Of an act, right, agreement, or
position) capable of being annulled or avoided <defeasi
ble deed>. Seefee simple defeasible under FEE SIMPLE.
defeasibility, n.
defeasible deed. See DEED.
defeasible estate. See ESTATE (1).
defeasible fee simple. Seefee simple defeasible under FEE
SIMPLE.
defeasible interest. See INTEREST (2).
defeasible remainder. See REMAINDER.
defeasible title. See TITLE (2).
defeasive, adj. Rare. Capable of defeating <a counter
claim defeasive of the plaintiffs right to recovery>.
defeat, vb. 1. To deprive (someone) of something
expected, usu. by an antagonistic act <to defeat the
opponent in an election>. 2. To annul or render (some
thing) void <to defeat title>. 3. To vanquish; to conquer
(someone or something) <to defeat the armies>. 4. To
frustrate (someone or something) <the expenditures
defeat the bill's purpose>.
defect, n. (15c) An imperfection or shortcoming, esp.
in a part that is essential to the operation or safety of
a product. -defective, adj. [Cases: Products Liability
(::=> 119.]
apparent defect. See patent defect.
design defect. (1954) An imperfection occurring when
the seller or distributor could have reduced or avoided defect of form
a foreseeable risk of harm by adopting a reasonable
alternative deSign, and when, as a result of not using
the alternative, the product or property is not reason
ably safe. Cf. manufacturing defect. [Cases: Products
Liability 128.]
fatal defect. (18c) A serious defect capable of nullify
ing a contract.
hidden defect. (1896) A product imperfection that is
not discoverable by reasonable inspection and for
which a seller or lessor is liable if the flaw
causes harm. -Upon discovering a hidden defect,
a purchaser may revoke a prior acceptance. UCC
2-608(l)(b). -Also termed latent defect; inherent
defect. [Cases: Sales
latent defect. See hidden defect.
manufacturing defect. (l925) An imperfection in a
product that departs from its intended design even
though all possible care was exercised in its assembly.
Cf. design defect. Products Liability (::=> 125.]
marketing defect. (1980) 1. The failure to adequately
warn of a potential risk of harm that is known or
should have been known about a product or its fore
seeable use. 2. The failure to adequately instruct
the user about how to use a product safely. [Cases:
Products Liability
patent defect. (1827) A defect that is apparent to a
normally observant person, esp. a buyer on a reason
able inspection. Also termed apparent defect.
product defect. (l967) An imperfection in a product
that has a manufacturing defect or design defect, or is
faulty because ofinadequate instructions or warnings.
See manufacturing defect; design defect; marketing
defect. [Cases: Products LiabilityC= 122.]
defective, adj. (14c) 1. (Of a position, right, act, or
process) lacking in legal sufficiency <defective execu
tion of documents> <defective service of process>. 2.
(Of a product) containing an imperfection or short
coming in a part essential to the product's safe opera
tion <defective wiring caused the accident>. [Cases:
Products Liability ~~119.]
defective condition. (1823) An unreasonably danger
ous state that might well cause physical harm beyond
that contemplated by the ordinary user or consumer
who purchases the product. See PRODUCTS LIABILITY.
[Cases: Products LiabilityG~ ll9.]
defective performance. See PERFORMANCE.
defective pleading. See PLEADING (1).
defective process. See PROCESS.
defective product. See PRODUCT.
defective record. See RECORD.
defective title. See TITLE (2).
defective trust. See TRUST.
defective verdict. See VERDICT.
defect of form. (17c) An imperfection in the style,
manner, arrangement, or nonessential parts of a legal
482 defect of parties
document, as distinguished from a substantive defect.
Cf. DEFECT OF SUBSTANCE.
defect ofparties. (18c) A failure to include all indispens
able parties in a lawsuit. [Cases: Federal Civil Proce
dure (::::>384; Parties (::::>77,81.]
defect of reason. Archaic. l. Mental illness. 2. Mental
retardation.
defect of substance. (18c) An imperfection in the sub
stantive part of a legal document, as by omitting an
essential term. Cf. DEFECT OF FORM.
defectus (di-fek-tJs), n. [fr. Latin deficere "to be defi
cient"] Hist. A defect; a deficiency.
defectus sanguinis (di-fek-tJs sang-gwi-nis). [Latin
"defect of blood"] Hist. A failure ofissue, often result
ing in an escheat. See ESCHEAT.
defence. See DEFENSE.
defend, vb. (14c) l. To deny, contest, or oppose (an alle
gation or claim) <the corporation vigorously defended
against the shareholder's lawsuit>. 2. To represent
(someone) as an attorney <the accused retained a well
known lawyer to defend him>.
defendant (di-fen-dJnt). (14c) A person sued in a civil
proceeding or accused in a criminal proceeding. -
Abbr. D. Cf. PLAINTIFF.
John Doe defendant. An anonymous defendant labeled
"John Doe" because the plaintiff does not, at the time
of filing suit, know the person's name. John Doe
defendants are common in several situations, such as
police-brutality lawsuits in which the plaintiff does
not know the names of the officers allegedly at fault,
and in some copyright-infringement lawsuits where
defendants are identified only by Internet addresses.
See JOHN DOE. [Cases: Federal Civil Procedure (::::>
101; Parties (::::>73.]
target defendant. In a case with multiple defendants,
the one whom the plaintiff considers the primary
source for any recovery ofdamages. Among several
defendants, one is usu. the most blameworthy or has
the most insurance or greatest assets, or both.
defendant in error. (I8c) Archaic. In a case on appeal,
the prevailing party in the court below. See APPELLEE;
RESPONDENT (1).
defendant score. (1982) A number taken from an estab
lished scale, indicating the relative seriousness of the
defendant's criminal history. Cf. CRIME SCORE.
defendant's gain. (1882) The amount of money or
the value of property that a criminal defendant has
obtained by committing a crime . Some states, such as
New York, consider the defendant's gain when assess
ing a criminal fine or ordering restitution.
defendemus (di-fen-dJ-mJs). [fro Latin defendere] We
will defend . This term was used in conveyancing to
require the donor and the donor's heirs to defend the
donee against any attempted encumbrance not spe
cifically agreed to. Although defendemus was not a warranty, it became part of the warranty clause "shall
and will warrant and forever defend."
defender. l. One who defends, such as the defendant in a
lawsuit, a person using self-defense, or defense counsel.
2. PUBLIC DEFENDER.
defendere (di-fen-dJ-ree), vb. [Law Latin] To deny; to
defend.
defendere se per corpus suum (di-fen-dJ-ree see pJr
kor-PJs s[y]oo-Jm), vb. [Law Latin "to defend himself
by his own body"] Hist. To agree to a trial by judicial
combat; to agree to a duel.
defendere unica manu (di-fen-dJ-ree yoo-nJ-kJ man
yoo), n. [Law Latin "to defend with one hand"] Hist. A
denial ofan accusation under oath.
Defender of the Faith. See DEFENSOR FIDEI.
defendour (day-fon-duur), n. [Law French] Hist. A defen
dant; the party accused in an appeal.
defeneration (dee-fen-J-ray-shJn), n. [fro Latin de "of" +
foenero "to lend upon usury"] Hist. The act of lending
money at a usurious interest rate.
defenestration (dee-fen-J-stray-shJn). (17c) The act of
throwing someone or something out a window.
defenestrate, vb.
defense (di-fen[t]s). (16c) l. A defendant's stated reason
why the plaintiff or prosecutor has no valid case; esp.,
a defendant's answer, denial, or plea <her defense was
that she was 25 miles from the building at the time of
the robbery>. [Cases: Criminal Law (::::>31.]
"Defence is defined to be that which is alleged by a party
proceeded against in an action or suit, as a reason why
the plaintiff should not recover or establish that which he
seeks by his complaint or petition." Edwin E. Bryant, The
Law |
should not recover or establish that which he
seeks by his complaint or petition." Edwin E. Bryant, The
Law of Pleading Under the Codes of Civil Procedure 240
(2d ed. 1899).
affirmative defense. (1837) A defendant's assertion of
facts and arguments that, if true, will defeat the plain
tiff's or prosecution's claim, even ifall the allegations
in the complaint are true . The defendant bears the
burden of proving an affirmative defense. Examples
of affirmative defenses are duress (in a civil case)
and insanity and self-defense (in a criminal case).
Also termed plea in avoidance; plea in justification.
Cf. negative defense; CONFESSION AND AVOIDANCE.
[Cases: Criminal Law (::::>31; Federal Civil Procedure
(::::>751; Pleading (::::>76,78,130.]
capacity defense. (1967) A defense based on the defen
dant's inability to be held accountable for an illegal
act or the plaintiff's inability to prosecute a lawsuit
(as when the plaintiff was a corporation, but has lost
its corporate charter). See CAPACITY.
choice-of-evils defense. See lesser-evils defense.
collateral defense (kJ-lat-J-rJl). Criminal law. A defense
of justification or excuse not involving a rebuttal of
the allegation and therefore collateral to the elements
that the prosecutor must prove. See EXCUSE (2); JUSTI
FIcATION (2). [Cases: Criminal Law (::::>38.]
483
cultural defense. 1. A criminal defendant's assertion
that because an admitted act is not a crime in the
perpetrator's culture or native land, it should not be
judged by the laws of the place where it was commit
ted. -This cultural defense is asserted as an affirma
tive defense to a criminal charge. 2. The defense that
the actor's mental state at the time the alleged crime
was committed was heavily influenced by cultural
factors. -This is not a complete defense but a mitigat
ing one, pleaded to reduce the charges, the sentence,
or both. See FEMALE GENITAL MUTILATION. [Cases:
Criminal Law C:.:>34.]
defense ofhabitation. 'The defense that conduct con
stituting a criminal offense is justified ifan aggressor
unjustifiably threatens the defendant's place of abode
or premises and the defendant engages in conduct
that is (1) harmful to the aggressor, (2) sufficient to
protect that place of abode or premises, and (3) rea
sonable in relation to the harm threatened. -Also
termed defense ofpremises. See CASTLE DOCTRINE.
[Cases: Assault and Battery C-~69; Criminal
38; Homicide C:~)759.J
defense ofhonesty. See honesty defense.
defense ofinequitable conduct. Patents. A defense to
an action for patent infringement, made by charging
the plaintiff with breaching the duty of candor and
good faith. -To succeed, the defendant must show
that, in the patent prosecution, the plaintiffintention
ally withheld material information from or misled
the examiner. Inequitable conduct is a combination
of two former defenses: unclean hands and fraud on
the Patent Office. [Cases: Patents ~97.]
derivative defense. (I972) A defense that rebuts the
criminal elements that a prosecutor must establish
to justify the submission ofa criminal case to a jury.
[Cases: Criminal Law
designer defense. A novel defense based on dimin
ished capacity attributed to stress or impairment.
The phrase derives from the fact that the defense is
tailored to the defendant and the circumstances of
the crime. Examples include extraordinary reactions
to snack food (the Twinkie defense), unconscious
ness or sleepwalking, and postpartum psychosis. See
AUTOMATISM. [Cases: Criminal LawC-':J46; Homicide
C~815, 816.]
dilatory defense (dil-a-tor-ee). (1845) A defense that
temporarily obstructs or delays a lawsuit but does
not address the merits. -Examples of dilatory
defenses include misjoinder, nonjoinder, res judicata,
misnomer, lack of capacity to sue, another action
pending, statute of limitations, prematurity, unripe
ness, release, and settlement.
dwelling defense. See CASTLE DOCTRINE.
eleemosynary defense. See charitable immunity under
IMMUNITY (2).
empty-suit defense. A defense in which a high-ranking
officer or director in an organization claims ignorance
of any wrongdoing by subordinates. defense
equitable defense. (18c) A defense formerly available
only in a court of equity but now maintainable in
a court oflaw. _ Examples include mistake, fraud,
illegality, failure ofconsideration, forum non conve
niens, laches, estoppel, and unclean hands.
frivolous defense. (18c) A defense that has no basis in
fact or law.
full defense. A technical common-law defensive plea,
stated at length and without abbreviation. -This plea
is obsolete because of the pleading requirements in
federal and state rules of civil procedure.
general-justification defense. See lesser-evils defense.
honesty defense. Rare. An assertion that the defen
dant acted honestly and in good faith. -This defense,
almost unique to civil suits, is rarely raised. For
example, a defendant may assert honesty as a defense
to a charge of fraudulent misrepresentation. Also
termed defense ofhonesty. Cf. CLAIM OF RIGHT (1).
[Cases: Fraud ~36.1
imperfect defense. (1835) A defense that fails to meet all
legal requirements and usu. results only in a reduction
in grade or sentence rather than an acquittal, as when
a defendant is charged with manslaughter rather
than murder because the defendant, while defending
another, used unreasonable force to repel the attack.
See imperfect self-defense under SELF-DEFENSE. Cf.
perfect defense.
inconsistent defense. (1852) A defense so contrary to
another defense that the acceptance of one requires
abandonment of the other. A person accused of
murder, for example, cannot claim both self-defense
and the alibi of having been in a different city when
the murder took place. [Cases: Criminal Law
43.5.]
innocent-owner defense. In forfeiture action, an
affirmative defense in which the owner of property
(such as real estate or money) asserts that another
person committed the wrongful act or omission while
using the property without the owner's knowledge
or consent. See 18 USCA 983(d). See civil forfeiture
under FORFEITURE. [Cases: Controlled Substances
Forfeitures C:;)4.J
insanity defense. See INSA:>IITY DEFENSE.
issuable defense. (1847) Cornman-law pleading. A plea
on the merits setting forth a legal defense. Cf. issuable
plea under PLEA (3).
justification defense. See JUSTIFICATION DEFENSE.
legal defense. (17c) A complete and adequate defense
in a court oflaw.
lesser-evils defense. (1982) The defense that, while
the defendant may have caused the harm or evil that
would ordinarily constitute a criminal offense, in the
present case the defendant has not caused a net harm
or evil because ofjustifying circumstances and there
fore should be exculpated. Also termed choice-ol
evils defense; necessity; general-just~fication defense.
defense 484
meritorious defense (mer-;:J-tor-ee-;:Js). (lSc) 1. A
defense that addresses the substance or essentials of
a case rather than dilatory or technical objections.
[Cases: Federal Civil Procedure C=;>2450, 2651.1;
Judgment 379,447.]2. A defense that appears
likely to succeed or has already succeeded.
necessity defense. See rUSTIFICATION (2).
negative defense. A defendant's outright denial of the
plaintiffs allegations without additional facts pleaded
by way of avoidance. Cf. affirmative defense. [Cases:
Pleading
new-value defense. Bankruptcy. A defense to a suit to
recover preferential payments whereby the transferee
ofthe payments can reduce liability by the amount of
consideration or value that the transferee provided to
the transferor after a suspect transfer. [Cases: Bank
ruptcyC=;>2613.J
ostrich defense. A criminal defendant's claim not to
have known of the criminal activities of an associ
ate.
partial defense. (1818) A defense going either to part of
the action or toward mitigation ofdamages.
pass-on defense. An antitrust defense that a member of
the distributive chain who was overcharged or under
charged passed on the price adjustment to reflect the
charge and thereby suffered no damage. Also
termed passing on. [Cases: Antitrust and Trade Reg
ulation C=;>908.J
peremptory defense (p;H-emp-tdr-ee). (1860) A
defense that questions the plaintiff's legal right to
sue or contends that the right to sue has been extin
guished.
perfect defense. (1817) A defense that meets all legal
requirements and results in the defendant's acquit
tal. See perfect self-defense under SELF-DEFENSE. Cf.
imperfect defense.
pretermitted defense (pree-t<:lr-mit-id). (1947) A
defense available to a party that must be pleaded at
the right time or be waived.
sham defense. (1853) A fictitious, untrue defense, made
in bad faith.
sleepwalking defense. See AUTOMATISM.
SODDI. See SODDI DEFENSE.
true defense. A defense admitting that a defendant
committed the charged offense, but seeking to avoid
punishment based on a legal excuse (such as insanity)
or justification (such as self-defense).
unconsciousness defense. See AUTOMATISM.
XYY-chromosome defense. See XYY-CHROMOSOME
DEFENSE.
2. A defendant's method and strategy in opposing the
plaintiffor the prosecution; a doctrine giving rise to
such a method or strategy <the lawyer advised her
client to adopt a passive defense and to avoid taking
the witness stand>. empty-chair defense. (1981) A trial tactic in a multi
party case whereby one detendant attempts to put all
the fault on a defendant who plea-bargained or settled
before trial or on a person who was neither charged
nor named as a party.
malicious defense. Torts. A defendant's use of unfair,
harassing, or illegal tactics to advance a frivolous or
unmeritorious defense. The elements of the tort
are (1) the defendant's initiation, continuation, or
procurement ofproceedings; (2) knowledge that the
defense lacks merit; (3) the assertion of the defense
for a purpose other than to properly adjudicate the
claim, such as to harass, annoy, or injure, or to cause
unnecessary delay or needless increase in the cost of
litigation; (4) termination ofthe suit in the plaintiff's
favor; and (5) harm to the plaintiff resulting from the
proceeding. Damages are the same as in an action for
malicious prosecution. A minority ofstates recognize
the tort. Cf. MALICIOUS PROSECUTION. [Cases: Torts
~'-:J437.]
Stalingrad defense. The strategy ofwearing down the
plaintiffby tenaciously fighting by whatever means
anything the plaintiff presents and appealing every
ruling favorable to the plaintiff, rather than present
ing a meritorious case . The tactic is named for the
Russian city beSieged by the Germans in World War
II. The defenders refused to surrender and used every
available tactic and tool to hold the attackers at bay
until winter cut the enemy's supply lines, leaving the
attackers with inadequate resources with which to
continue the siege.
3. One or more defendants in a trial, as well as their
counsel <the defense rests>. 4. Commercial law. A basis
for avoiding liability on a negotiable instrument <the
drawer asserted a real defense against the holder in due
course>.
absolute defense. See real defense.
personal defense. (1950) An ordinary defense in a
contract action -such as failure ofconsideration or
nonperformance ofa condition that the maker or
drawer ofa negotiable instrument is precluded from
raising against a person who has the rights ofa holder
in due course. See DCC 3-305(b). A personal
defense can be asserted only against a transferee who
is not a holder in due course. Also termed limited
defense.
real defense. A type of defense that is good against
any possible claimant, so that the maker or drawer
of a negotiable instrument can raise it even against
a holder in due course. The ten real defenses are
(1) fraud in the factum, (2) forgery of a necessary
signature, (3) adjudicated insanity that, under state
law, renders the contract void from its inception, (4)
material alteration of the instrument, (5) infancy,
which renders the contract voidable under state law,
(6) illegality that renders the underlying contract
void, (7) duress, (8) discharge in bankruptcy, or any
discharge known to the holder in due course, (9) a
suretyship defense (for example, if the holder knew
485 defense of self
that one indorser was signing as a surety or accom- I overseeing the Department's day-to-day finance and
modation party), and (10) a statute of limitations
(generally three years after dishonor or acceptance on
a draft and six years after demand or other due date
on a note). -Also termed absolute defense; universal
defense. [Cases: Bills and Notes (::::;>364.]
5. Measures taken by a country or individual to
protect against an attack. See SELF-DEFENSE; NATIONAL
DEFENSE |
taken by a country or individual to
protect against an attack. See SELF-DEFENSE; NATIONAL
DEFENSE (1).
self-defense. See SELF-DEFENSE.
6. A country's military establishment. See NATIONAL
DEFENSE ~2). -Also spelled in all senses (esp. in BrE)
defence. 7. TAKEOVER DEFENSE.
Defense Advanced Research Projects Agency. An
agency in the U.S. Department of Defense responsi
ble for military research and development. -Abbr.
DARPA.
defense attorney. A lawyer who represents a defendant in
a civil or criminal case. -Also termed defense counsel;
defense lawyer.
defense au fond en droit (di-fen[t]s oh fohn on drwah).
Civil law. Demurrer.
Defense Commissary Agency. An agency in the U.S.
Department of Defense responsible for providing goods
and services to members of the armed forces at reduced
prices. Abbr. DeCA.
defense contingent fee. See reverse contingent fee under
CONTINGENT FEE.
Defense Contract Audit Agency. An agency in the
U.S. Department of Defense responsible for conduct
ing contract audits and for providing accounting and
financial advice to all Department components respon
sible for procurement and contract administration. -
Abbr. DCAA.
Defense Contract Management Agency. A unit in the
U.S. Department ofDefense responsible for managing
contracts to ensure that supplies and services are deliv
ered on time and within cost and that they meet per
formance requirements. Abbr. DCMA.
defense counsel. See DEFENSE ATTORNEY.
Defense Department. An executive department of the
federal government, responsible for coordinating and
overseeing military affairs and the agencies responsi
ble for national security . 1he Department was estab
lished as the National Military Establishment in 1947,
by combining the War and the Navy Departments. Its
name was changed to Department of Defense in 1949.
The Department's components include the Army, the
Air Force, the Navy, the Marine Corps, and the Joint
Chiefs ofStaff. It is headed by the Secretary of Defense,
who is answerable to the President as Commander-in
Chief. Also termed Department ofDefense (abbr.
DOD).
Defense Finance and Accounting Service. A unit in the
U.S. Department ofDefense responsible for providing
professional finance and accounting services and for accounting activities. Abbr. DFAS.
Defense Information Systems Agency. An agency in the
U.S. Department ofDefense responsible for developing
and operating information systems to provide combat
support for the armed forces. Abbr. DISA.
Defense Intelligence Agency. A combat-support unit in
the U.S. Department of Defense responsible for devel
oping and managing foreign military intelligence in
support of military planning and operations and of
weapons-systems acquisition. Abbr. DIA.
Defense Investigative Services. See DEFENSE SECURITY
SERVICE.
defense lawyer. See DEFENSE ATTORNEY.
Defense Legal Services Agency. An agency in the U.S.
Department of Defense responsible for providing
legal services to all agencies in the Department. - The
General Counsel ofthe Department directs its opera
tions. Abbr. DLSA.
Defense Logistics Agency. A unit in the U.S. Depart
ment of Defense responsible for providing worldwide
logistics support for military missions both in peace
and in war . The Agency also supports nonmilitary
agencies overseas. -Abbr. DLA.
defense-month. See FENCE-MONTH.
Defense Nuclear Facilities Safety Board. An indepen
dent federal board that sets standards for the design,
construction, operation, and decommissioning of
defense nuclear facilities of the U.S. Department of
Energy. It was established in 1988.42 USCA 2286
2286i.
defense ofhabitation. See DEFENSE (1).
defense ofhonesty. See DEFENSE (1).
Defense of Marriage Act. A federal statute that (1)
provides that no state can be required to recognize or
give effect to same-sex marriages, (2) defines the term
"marriage" for purposes offederal law as the union of a
man and a woman as husband and wife, and (3) defines
"spouse" for purposes of federal law as being only a
person of the opposite sex. 1USCA 7; 28 USCA 1738C.
The Defense ofMarriage Act was enacted in response
to the fear that if one state sanctioned same-sex mar
riages, other states might then have to give full faith
and credit to those marriages. -Abbr. DOMA. [Cases:
Marriage (::::;> 17.5.]
defense of others. (1942) A justification defense avail
able ifone harms or threatens another when defending
a third person. See JUSTIFICATION (2). [Cases: Assault
and Battery (::::;>68; Homicide C= 757.J
defense of premises. See defense ofhabitation under
DEFENSE (1).
defense ofproperty. (1918) A justification defense avail
able ifone harms or threatens another when defending
one's property. See JUSTIFICATION (2). [Cases: Assault
and Battery (::::;>69; Homicide (::::;>758.]
defense ofself. See SELF-DEFENSE.
486 Defense Security Cooperation Agency
Defense Security Cooperation Agency. A unit in the
U.S. Department of Defense responsible for fostering
and overseeing security-cooperation arrangements and
for promoting security relationships with US. friends
and allies. Abbr. DSCA.
Defense Security Service. A unit in the U.S. Department
of Defense responsible for conducting personnel inves
tigations and providing industrial-security products
and services to the Department and other agencies .
The agency was formerly known as the Defense Inves
tigative Service. Abbr. DSS.
Defense Threat Reduction Agency. A unit in the U.S.
Department of Defense responsible for reducing the
risk of and defending against attacks that involve
nuclear, chemical, biological, or other weapons of
mass destruction . The Agency was created in 1998.
Abbr. DTRA.
defensiva (dee-fen-sl-vd), n. [Latin "a protector"] Hist.
A warden of the Marches, being one of many lords
appointed by the Crown to defend England's borders.
defensive allegation. See ALLEGATION.
defensive collateral estoppel. See COLLATERAL
ESTOPPEL.
defensive disclosure. Patents. The deliberate publica
tion of details about an invention in order to render
it prior art and preclude others from getting a patent
on the same invention . This can be done formally,
by filing for public disclosure through the Statutory
Invention Registration and publishing the abstract in
the Official Gazette of the U.S. Patent and Trademark
Office, or privately, by publishing it in an independent
journal that will probably be consulted by a patent
examiner. Also termed defensive publication. See
STATUTORY INVENTION REGISTRATION. [Cases: Patents
~1l51
defensive-force justification. See JUSTIFICATION.
defensive lockout. See LOCKOUT.
defensive-posture memorandum. See DEFENSIVE
PROFILE.
defensive profile. The set of strategies devised by a
company to discourage others from attempting a
hostile takeover.
defensive-profile memorandum. Corporations. An
outline of a company's strategy against a hostile
takeover. Also termed defensive-posture memoran
dum.
defensive publication. See DEFENSIVE DISCLOSURE.
defensive treaty. See TREATY (1).
defensor (di-fen-sdr or -sor), n. [fr. Latin defendere "to
forhid"] 1. Roman law. A defender of another's interests
in court; an advocate, esp. for a corporation. Cf. PROCU
RATOR LITIS. 2. Roman law. DEFENSOR CIVITATIS. 3.
Hist. Eccles. law. An advocate or patron of a church;
a church warden. 4. Hist. A guardian; a protector; a
defender. defensor civitatis (di-fen-sdr siv-i-tay-tis). [Latin
"defender ofthe city"] Roman law. An officer conduct
ing public business, including protecting people, esp.
the poor, from legal injustices, adjudicating certain
minor offenses and pecuniary matters, and acting as
a notary in the execution of a will or other transfer.
Often shortened to defensor.
defensor fidei (di-fen-sdr fI-dee-I), n. [Latin "defender
of the faith"] Hist. A unique title of the sovereign of
England, first granted in 1521 by Pope Leo X to Henry
VIII for writing against Martin Luther . The Pope later
withdrew the title because of Henry's harsh regulation
of the church, but the title was again bestowed on the
King by Parliament in 1544. The term is similar to
the application of"Catholic" to the Spanish sovereign
and "Most Christian" to the French sovereign. Also
termed Defender ofthe Faith.
defensum (di-fen-sdm), n. [Law Latin "an inclosure"]
Hist. 1. A portion of an open field allotted for corn or
hay but not for feeding. 2. A wood partially enclosed
to prevent the cattle from damaging the undergrowth.
3. A prohibition.
defer, vb. (17c) 1. To postpone; to delay <to defer taxes
to another year>. 2. To show deference to (another);
to yield to the opinion of <because it was a political
question, the courts deferred to the legislature>.
deferment, n. 1. The act of delaying; postponement
<deferment of a judicial decision>. 2. Military law.
A delay in serving in the military. [Cases: Armed
Services (;:::>20.6.] 3. Military law. A delay in serving
confinement that results from a court-martial until the
sentence has been approved and its execution has been
ordered. The convening authority may grant a defer
ment. [Cases: Armed Services ~48;Military Justice
(;'-:::> 1399.] -defer, vb.
deferral of taxes. The postponement of paying a tax
from one year to another, as by contributing money to
an IRA, for which earnings and contributions will be
taxed only when the money is withdrawn.
deferral state. (1977) Under the Age Discrimination
in Employment Act (ADEA), a state that has its own
anti-discrimination legislation and enforcement mech
anism, so that the time to file a federal lawsuit under
the ADEA is postponed until state remedies have been
exhausted. [Cases: Civil Rights 1507.]
deferred adjudication. See deferred judgment under
JUDGMENT.
deferred-adjudication probation. See deferred judgment
under JUDGMENT.
deferred annuity. See ANNUITY.
deferred charge. (I917) An expense not currently rec
ognized on an income statement but carried forward
on the balance sheet as an asset to be written off in the
future <insurance premiums are a deferred charge>.
deferred claim. (1900) A claim postponed to a future
accounting period.
deferred compensation. See COMPENSATION.
487 de finibus levatis
deferred credit. A credit (such as a premium on an issued
bond) that is required to be spread over later account
ing periods.
deferred dividend. See DIVIDEND.
deferred-dividend insurance policy. See INSURANCE
POLICY.
deferred expense. See EXPENSE.
deferred income. See INCOME.
deferred-interest bond. See BOND (3).
deferred judgment. See JUDGMENT.
deferred lien. See LIEN.
deferred payment. (1831) A principal-and-interest
payment that is postponed; an installment payment.
deferred-payment annuity. See deferred annuity under
ANNUITY.
deferred prosecution. See deferred judgment under
JUDGMENT.
deferred revenue. See prepaid income under INCOME.
deferred sentence. See SENTENCE.
deferred stock. See STOCK.
deficiency, n. (17c) 1. A lack, shortage, or insufficiency.
2. A shortfall in paying taxes; the amount by which
the tax properly due exceeds the sum ofthe amount of
tax shown on a taxpayer's return. - Also termed tax
deficiency; income-tax deficiency; deficiency in tax. 3.
The amount still owed when the property secured by
a mortgage is sold at a foreclosure sale for less than
the outstanding debt; esp., the shortfall between the
proceeds from a foreclosure sale and an amount con
sisting ofthe principal debt plus interest plus the fore
closure costs. See deficiency judgment under JUDGMENT.
[Cases: Mortgages ~375,555-562.]
deficiency assessment. See ASSESSMENT.
deficiency bill. See BILL (3).
deficiency decree. See deficiency judgment under
JUDGMENT.
deficiency dividend. See DIVIDEND.
deficiency in tax. See DEFICIENCY (2).
deficiency judgment. See JUDGMENT.
deficiency letter. 1. An IRS letter to a taxpayer, detail
ing the ways in which a tax return seems to be defi
cient. 2. An SEC letter to a registrant of a securities
offering, detailing the ways in which the registration
statement seems not to conform to federal disclosure
requirements. Also termed letter ofcomment; letter
of comments. See NINETY-DAY LETTER; THIRTY-DAY
LETTER.
deficiency notice. See NINETY-DAY LETTER.
deficiency suit. (1927) An action to recover the difference
between a mortgage debt and the amount realized on
foreclosure. See deficiency judgment under JUDGMENT.
[Cases: Mortgages C-~'561.] deficit. (lSc) 1. A deficiency or disadvantage; a deficiency
in the amount |
61.] deficit. (lSc) 1. A deficiency or disadvantage; a deficiency
in the amount or quality ofsomething.
trade deficit. In economics, the excess ofmerchandise
imports over merchandise exports during a specific
period. Also termed trade gap. Cf. trade surplus
under SURPLUS.
2. An excess ofexpenditures or liabilities over revenues
or assets.
deficit spending. (193S) The practice of making expen
ditures in excess ofincome, usu. from borrowed funds
rather than actual revenues or surplus.
de fide instrumentorum (dee fI-dee in-stra-men-tor-am).
[Latin] Roman & Scots law. On the reliance to be placed
on written documents. -The phrase appeared in refer
ence to actions of rescission based on forgery.
de fideli administratione officii (dee fi-dee-II ad-min-a
stray-shee-oh-nee a-fish-ee-I). [Law Latin "of faithful
administration of office"] Scots law. An oath to faith
fully execute the duties ofone's public office or duty.
Often shortened to de fideli administratione.
defile (di-fd), vb. (14c) L To make dirty; to physically
soil. 2. To figuratively tarnish; to dishonor. 3. To make
ceremonially unclean; to desecrate. 4. To morally
corrupt (someone). 5. Archaic. To debauch (a person);
to deprive (a person) ofchastity.
defilement (di-fd-mant), n. 1. An act of defiling. 2. A
condition ofbeing defiled.
define, vb. 1. To state or explain explicitly. 2. To fix or
establish (boundaries or limits). 3. To set forth the
meaning of (a word or phrase).
defined-benefit pension plan. See PENSION PLAN.
defined-benefit plan. See EMPLOYEE BENEFIT PLAN.
defined-contribution pension plan. See defined-contri
bution plan under EMPLOYEE BENEFIT PLAN.
defined-contribntion plan. See EMPLOYEE BENEFIT
PLAN.
defined pension plan. See PENSION PLAN.
defined term. In legal drafting, a word or phrase given
a specific meaning for purposes of the document in
which it appears; a definiendum.
de fine force (dee fI-nee fors). [Law French] Of pure
necessity.
de fine non capiendo pro pulchre placitando (dee fr -nee
non kap-ee-en-doh proh pal-kree plas-a-tan-doh), n.
[Law Latin "of not taking a fine for amending a bad
pleading"] Hist. A writ prohibiting the imposition ofa
fine for bad pleading. See BEAUPLEADER.
de fine pro redisseisina capiendo (dee fr-nee proh ree
dis-see-zin-a kap-ee-en-doh), n. [Law Latin "of a fine
paid for one imprisoned for redisseisin"] His/. A writ
releaSing a person who paid a reasonable fine after
being imprisoned for a redisseisin.
de finibus leva tis (dee fIona-bas la-vay-tis), n. [Law Latin
"concerning fines levied"] Hist. The statute requiring
any levied fines to be read solemnly in open court. 27
Edw.l.
definite failure ofissue. See FAILURE OF ISSUE.
definite sentence. See determinate sentence under
SENTENCE.
definitio (def-a-nish-ee-oh), n. [fro Latin definire "defi
nition"] Civil law. l. A definition; an explanation of
something. 2. The establishment ofa general rule. 3. A
boundary. PI. definitiones.
definition. (14c) The meaning of a term as explicitly
stated in a drafted document such as a contract, a CO[
porate bylaw, an ordinance, or a statute; a definiens.
lexical definition. (1875) A dictionary-style definition
of a word, purporting to give the full meaning ofa
term.
stipulative definition. (1989) A definition that, for
purposes of the document in which it appears, arbi
trarily clarifies a term with uncertain boundaries or
that includes or excludes specified items from the
ambit of the term.
definitive judgment. See final judgment under
JUDGMENT.
definitive partition. See PARTITION.
definitive sentence. See determinate sentence under
SENTENCE.
deflation, n. A general decline in the price ofgoods and
services. Cf. INFLATION; DISINFLATION. deflate,
vb. deflationary, adj.
deforce, vb. (lSc) I. To keep (lands) from the true owner
by means of force. 2. To oust another from possession
by means of force. 3. To detain (a creditor's money)
unjustly and forcibly. -deforciant, n.
"The character of the action of debt is well illustrated by the
form of the writ as given by Glanville. It directs the sheriff
to order the debtor to render a stated sum which he owes
to the plaintiff, 'and whereof the plaintiff complains that
the defendant unjustly deforces him,' and, if he will not
obey, he is to be summoned before the King's Court. The
plaintiff is 'deforced' of money just as in a writ of right he is
'deforced' of land. It is true that the term 'deforces' disap
peared from the writ shortly after Glanville's time, the word
debet taking its place: but this seems to have been a matter
of form, not of substance. The plaintiff sought to recover
the money due as his property." William F. Walsh, Outlines
of the Hisrory of English and American Law 411 (1924).
deforcement. 1. An act of keeping lands from the true
owner by force. 2. An act ofousting another from pos
session by means offorce. 3. An act ofdetaining a cred
itor's money unjustly and forcibly.
deforciant (di-for-shant), n. [fro Law Latin deforcians
"a deforcer"]l. A person who prevents another from
taking possession of property. 2. The defendant in an
action of fine. See FINE (1).
deforciare (di-for-shee-air-ee), vb. [fro Law Latin defor
tiare "to deforce"] Hist. To withhold property (such as
land and tenements) from the true owner.
deforciatio (di-for-shee-ay-shee-oh), n. [Law Latin "a
distress"] Hist. A seizure ofgoods to satisfy a debt. de forisfactura maritagii (dee for-is-fak-tyoor-a mar
a-tay-jee-I), n. [Law Latin "of forfeiture of marriage"]
Hist. A writ forfeiting a marriage.
defossion (di-fosh-in), n. [ff. Latin de "down" + fodere
"dig"] The punishment of being buried alive.
de frangentibus prisonam (dee fran-jen-ti-bas priz-a
nam), n. [Latin "of those who break prison"] Hist. The
statute providing that an escaped prisoner will not be
put to death or forfeit a limb simply for escaping from
prison unless the original crime required that penalty
upon conviction. 1 Edw.2.
defraud, vb. (14c) To cause injury or loss to (a person) by
deceit, See FRAUD.
defraudation. The perpetration of a fraud; the act of
committing fraud.
defrauder. See FRAUDFEASOR.
defunct, adj. Dead; extinct <defunct corporation>.
defunct marriage. See MARRIAGE (1).
defunctus (di-fangk-tas), adj. [Latin] Dead, as in defunc
tus sine prole ("dead without (leaving) issue").
de furto (dee far-toh), n. [Latin "of theft"] Hist. In
England, a type ofcriminal appeal.
defuturo (dee fyuu-t[y]uur-oh). [Latin] Hist. Regarding
the future; at a future time. -The phrase usu. appeared
in reference to a marriage promise, which was not
binding if it mentioned marriage at a future date. C.
DE PRAESENTI.
degaster (day-gas-tay), vb. [fro Old French degaster "to
spoil"] To waste.
de gestu etfama (dee jes-tyfy]oo et fay-rna), n. [Law
Latin "of behavior and reputation"] His!. A writ avail
able to a person whose character and reputation had
been impeached.
degradation (deg-ra-day-shan). (l6c) I. A reduction in
rank, degree, or dignity; sped., censure of a clergy
member by divestiture of holy orders, either by word
or by a solemn divestiture of robes and other insignia.
C. DEPOSITION (4); DEPRIVATION (4). 2. A moral or
intellectual decadence or degeneration; a lessening of
a person's or thing's character or quality <degradation
of resources>. 3. A wearing down of something, as by
erosion.
de gratia (dee gray-shee-a). [Latin] Offavor; by grace, as
in de speciali gratia ("of special grace or favor").
degree. (13c) l. Generally, a classification or specification
<degrees ofproof>. 2. An incremental measure ofguilt
or negligence; a level based on the seriousness of an
offense <murder in the first degree>. [Cases: Criminal
Law (::=28.]3. A stage in a process; a step in a series of
steps toward an end <the statute went through several
degrees of development>. 4. A stage in intensity <a
high degree oflegal skill is required>. 5. In the line of
descent, a measure of removal determining the prox
imity of a blood or marital relationship <the council
member did not participate in the vote because he was
related to one of the bidders within the first degree of
consanguinity> . In the civil law, and in the degree
of-relationship system used by many American juris
dictions, an intestate estate passes to the dosest ofkin,
counting degrees ofkinship. To calculate the degree of
relationship of the decedent to the claimant, one counts
the steps (one for each generation) up from the decedent
to the nearest common ancestor of the decedent and
the claimant, and on down to the claimant from the
common ancestor. The total number of steps is the
degree ofrelationship. For example, a decedent's cousin
stands in the fourth degree of relationship. Degrees of
relationship are used not only to determine who is the
closest heir but also to establish the incest prohibition
in marriage requirements. Also termed degree ofkin;
degree ofrelationship; degree ofdescent. See AFFINITY
(2); CONSANGUINITY. [Cases: Descent and Distribution
equal degree. (16c) A relationship between two or more
relatives who are the same number of steps away from
a common ancestor. [Cases: Descent and Distribu
tion
prohibited degree. (17c) A degree of relationship so
dose (as between brother and sister) that marriage
between the persons is forbidden by law. Generally,
with slight variations from jurisdiction to jurisdic
tion, the law forbids marriages between all persons
lineally related and within the third civil-law degree
of relationship. That is, aunt-nephew and uncle
niece relations are prohibited. Prohibited degrees
are also known as Levitical degrees, since the incest
prohibition is pronounced in the Bible in Leviticus
18:6-18. Also termed forbidden degree. [Cases:
Marriage
6. A title conferred on a graduate of a school, college,
or university, either after the completion of required
studies or in honor of special achievements <she began
studying for the bar exam the day after receiving her
law degree>. Cf. DIPLOMA (3).
degree of care. (17c) A standard of care to be exercised
in a given situation. See CARE. [Cases: Negligence c:=:>
230.]
degree ofcrime. (1826) 1. A division or classification of
a single crime into several grades of guilt, according to
the circumstances surrounding the crime's commis
sion, such as aggravating factors present or the type
of injury suffered. [Cases: Criminal Law (:=-/28.J 2. A
division ofcrimes generally, such as felonies or misde
meanors. [Cases: Criminal Law
degree ofdescent. See DEGREE (5).
degree ofkin. See DEGREE (5).
degree of negligence. (I8c) One of the varying levels of
negligence typically deSignated as slight negligence,
ordinary negligence, and See NEGLI
GENCE. [Cases: Negligence
"Although the common law concept of degrees of neg
ligence has been criticized or repudiated in many juris
dictions, the usefulness of the view at common law that
degrees of negligence exist is still recognized in a number
of jurisdictions, particularly in regard to the distinction between ordinary and gross negligence. Furthermore, leg
islators have not been dissuaded from using the degrees of
negligence concept when it is helpful to achieve a legisla
tive purpose." 57A Am. Jur. 2d Negligence 233, at 274
(1989).
degree of proof. 1. See BURDEN OF PROOF. 2. BURDEN
OF PRODUCTION.
degree of relationship. See DEGREE (5).
de haerede deliberando illi qui habet custodiam terrae
(dee hi-ree-dee di-lib-<)-ran-doh iI-I kWI hay-b<)t
k<)-stoh-dee-<)m ter-ee), n. [Law Latin "for delivering
an heir to him who has wardship ofthe land"] Hist. A
writ ordering the sheriff to deliver an heir to a person
who had wardship.
de haerede rapto et abducto (dee hi-ree-dee rap-toh
et ab-dak-toh), n. [Law Latin "of an heir ravished and
carried away") Hist. A writ allowing a lord to recover a |
h), n. [Law Latin "of an heir ravished and
carried away") Hist. A writ allowing a lord to recover a
ward who had been taken by another person.
de haeretico comburendo (dee hi-ret-i-koh kom-by;)
ren-doh), n. [Law Latin "of burning a heretic"] Hist.
1. A writ ordering the execution by burning of a con
victed heretic who refused to recant, or was convicted
ofheresy again after recanting. Also termed writ de
haeretico comburendo.
"[W]e find among our ancient precedents a writ de haeretico
comburendo, which is thought by some to be as ancient as
the common law itself. However, it appears from thence,
that the conviction of heresy by the common law was not
in any petty ecclesiastical court, but before the archbishop
himself in a provincial synod; and that the delinquent was
delivered over to the king to do as he should please with
him: so that the crown had a control over the spiritual
power, and might pardon the convict by issuing no process
against him; the writ de haeretico comburendo being not a
writ of course, but issuing only by the special direction of
the king in counciL" 4 William Blackstone, Commentaries
on the Laws of Eng/and 46-47 (1769).
"But the case of Sawtre (1400) is a clear case in which the
rule of the canon law was applied. He was convicted of
heresy before the Bishop of Norwich and recanted his
heresy. He fell again into heresy, and was condemned by
the archbishop and his provincial Council, as a relapsed
heretic. On this conviction the king issued a writ de
haeretico comburendo. This case clearly shows that the
common law recognized the rule of the canon law. "
1 William Holdsworth, A History of English Law 617 (7th
ed. 1956).
2. The first English penal law against heresy, enacted
in 1401 (2 Hen. 4, ch. 15). The law authorized the
burning of defendants who relapsed or refused to
abandon their heretical opinions.
'The first English statute that denounced the penalty
of death against heretics was passed in the year 1401.
Whether before that statute the law that was in force in
our land demanded or suffered that such persons should
be burnt is a question that has been eagerly debated; on it
in the days of Elizabeth and James I depended the lives of
Anabaptists and Arians; it has not yet lost its interest; but
it is a question that buzzes in a vacuum, for until Lollardy
became troublesome there was too little heresy in England
to beget a settled course of procedure." 2 Frederick Pollock
& Frederic Maitland, The History of English Law Before the
Time ofEdward /544 (1899).
deherison (dee-her-i-z<)n). See DISINHERITANCE.
490 de homagio respectuando
de homagio respectuando (dee hd-may-jee-oh ri-spek
tyoo-an-doh), n. [Law Latin "for respiting or postpon
ing homage"] Hist. A writ to postpone an homage. See
HOMAGE.
de homine capto in withernamium (dee hom-d-nee
kap-toh in with-ar-nay-mee-om), n. [Law Latin "for
taking a man in withernam"] Hist. A writ to seize and
jail a person who took a bondman out ofthe county to
keep the bondman from being replevied . The defen
dant was jailed without bail until the bondman was
returned. See WITHERNAM.
de homine replegiando (dee hom-o-nee ri-plee-jee-an
doh), n. (Law Latin "for replevying a man"] A writ to
replevy a person out of jail or out of the custody of
another person after giving security that the replevied
person will answer any charge.
"The writ de homine replegiando lies to replevy a man out
of prison, or out of the custody of any private person, (in
the same manner that chattels taken in distress may be
replevied ...) upon giving security to the sheriff that the
man shall be forthcoming to answer any charge against
him. And, if the person be conveyed out of the sheriff's
jurisdiction, the sheriff may return that he is eloigned ...
upon which a process issues ... to imprison the defendant
himself, without bail ... till he produces the party. But this
writ is guarded with so many exceptions, that it is not an
effectual remedy in numerous instances, especially where
the crown is concerned." 3 William Blackstone, Commentar
ies on the Laws ofEngland 129 (1768).
dehors (do-hor or da-horz). [Law French] (I8c) Outside;
beyond the scope of <the court cannot consider the
document because it is dehors the record>.
de identitate nominis (dee I-den-to-tay-tee nom-a-nis),
n. [Law Latin "of identity of name"] Hist. A writ to
free a person mistaken for someone else with the same
name and then falsely arrested and imprisoned. -Also
termed de idemptitate nominis.
de idiota inquirendo (dee id-ee-oh-t;:J in~kwI-ren-doh
or in-kwa-ren-doh). [Latin "of inquiring concerning
an idiot"] Hist. A writ directing the sheriff to open an
inquiry before a jury of 12 into whether a person is an
idiot, that is, mentally incapable of managing his or
her personal affairs.
Dei gratia (dee-r gray-shee-a). [Latin] By the grace of
God. This phrase was often used in rulers' titles to
show that their authority was by divine right. It was
also formerly used in titles of magistrates and other
officers.
de iis qui ponendi sunt in assisis (dee I-OS kWI pa-nen-dI
sant in o-sl-zn), n. [Law Latin "of those who are to
be put on assises"] Hist. The statute establishing juror
qualifications. 21 Edw. 1.
dei judicium (dee-I joo-dish-ee-am). [Latin "God's
judgment"] A trial by ordeaL See ORDEAL.
de incremento (dee in-kra-men-toh). [Law Latin "of
increase"] Hist. Additional. -Costs de incremento are
costs awarded by a court in addition to costs awarded
by the jury.
de industria (dee in-d;)s-tree-o). [Latin] Hist. Design
edly; on purpose. de ingressu (dee in-gres-[yJoo), n. [Law Latin "of entry"]
Hist. A writ allOWing entry into lands or tenements.
de injuria (dee in-joor-ee-d). [Law Latin "of injury"]
Hist. Of injury. A traverse de injuria, contained in a
replication in a trespass action, denies the defendant's
excuse for the wrong done. See TRAVERSE.
de inojficioso testamento (dee in-a-fish-ee-oh-soh tes
t;:J-men-toh). [Latin] Roman law. Concerning an inof
ficious or undutiful will. See INOFFICIOSUS; QUERELA
INOFFICIOSI TESTAMENT!.
de integro (dee in-ta-groh), n. [Latin] Again; a second
time.
de intrusione (dee in-troo-zhee-oh-nee), n. [Law Latin "of
intrusion"] Hist. A writ available to a reversioner when
the tenant dies and a stranger occupies the land.
dejeration (dej-o-ray-sh;:Jn). The act of taking a solemn
oath.
de jure Cdi juur-ee also dee or day), adj. [Law Latin "as a
matter oflaw"] (l7c) Existing by right or according to
law <de jure segregation during the pre-Brown era>. Cf.
DE FACTO; DE GRATIA.
de jure corporation. See CORPORATION.
de jure government. See GOVERNMENT.
de jure officer. See officer de jure under OFFICER (1).
de jure segregation. See SEGREGATION (2).
de lana caprina (rixari) (dee lay-nd ko~prI-no rik-sair-l).
[Latin] Hist. To contend about a goat's hair; to dispute
about nothing.
delantal (di-lan-t;:JI). [Old English] Hist. See UTLAND.
de la plus belle (da lah ploo bel), adj. [Law French]
Hist. Ofthe most fair . This term described a form of
dower assigned out of the husband's best tenements.
The term was used in military tenures but was abol
ished by statute. 12 Car. 2, ch. 24. -Also termed de
Ia pluis beale.
delate (di-Iayt), vb. To accuse, to inform against, to
denounce in court, esp. a Scottish ecclesiastical
court. -delation, n. delator, n.
de latere (dee lat-ar-eel. [Latin] Of collaterals; from the
side.
delatio (di-Iay-shee-oh), n. [ff. Latin deferre "to
denounce"] Roman & dvillaw. 1. An accusation. 2.
Information.
delator (di-Iay-tor), n. [Latin) Roman law. 1. An informer.
2. An accuser; esp., a person who made a practice of
informing on and prosecuting others, esp. for fiscal
offenses. -This was at first encouraged, but later the
informer became subject to the death penalty. PI. dela
tores.
delatura (del-a-tyoor~a), n. [fro Latin deferre "to
denounce"] Hist. A reward given to an informer.
Delaware trust. See asset-protection trust under TRUST
(3)
delay, n. (13c) 1. The act of postponing or slowing
<the continuance was sought for no purpose other
than delay>. Cf. VEXATIOUS DELAY. 2. An instance at
which something is postponed or slowed <the delay
in starting the trial made it difficult for all ofthe wit
nesses to attend>. 3. The period during which some
thing is postponed or slowed <during the delay, the case
settled>. 4. Civil law. The period within which a party
to a suit must take some action, such as perfecting an
appeal or responding to a written-discovery request
<the delay for responding to written interrogatories is
15 days after the date they are served on the respond
ing party:>.
delayed appeal. See APPEAL.
delayed-compHance order. Environmental law. An order
issued by the Environmental Protection Agency or by a
state agency to an existing source ofpollutants, whereby
the deadline for complying with an implementation
plan is postponed. See IMPLEMENTATION PLAN.
delayed funds availability. A hold that a bank places on
uncollected funds that are represented by a deposited
check. Abbr. DFA.
delayed rental. See RENTAL.
delayed sentence. See SENTENCE.
delay rental. Oil &gas. A payment from the lessee to the
lessor made to maintain the mineral lease from period
to period during the primary term without an obliga
tion to drill. See DRILLING-DELAY RENTAL CLAUSE; "or"
lease, paid-up lease, "until" lease under LEASE.
del bien estre (del been es-t;:lr). [Law French] Rist. Of
well-being. See DE BENE ESSE.
del credere (del kred-;:l-ray or kray-da-ray), adj. [Italian]
(l8c) Ofbelief or trust.
"'Del credere' agents for the sale of goods, in consideration
of a higher payment than usual, become responsible for the
solvency of the person to whom they sell them." Thomas
E. Holland, The Elements ofJurisprudence 304 (13th ed.
1924).
del credere agent. See AGENT (2).
del credere bailiff. See FACTOR (2).
del credere commission. A factor's commission that is
increased because the factor guarantees the payment to
the principal ofall debts that become due through the
agency relationship. [Cases: Factors 44.)
del credere factor. See del credere agent under AGENT.
delectus personae (di-Iek-t;:ls p;:lr-soh~nee). [Latin "choice
of the person] The rule that when personal relations
are important. a person cannot be compelled to asso
ciate with another person. -Based on this principle.
a partner has the right to accept or reject a candidate
proposed as a new partner.
delegable duty. See DUTY (1).
delegate (del-;:l-git). n. (lSc) 1. One who represents or acts
for another person or a group. 2. Parliamentary law.
A voting member ofa convention, whether entitled to
vote as an elected or appointed delegate (sense 1), as an upgraded alternate, or ex officio. See CONVENTION (4);
ALTERNATE; EX OFFICIO.
instructed delegate. A delegate bound to vote accord
ing to a constituency's expressed wishes. Cf. unin
structed delegate; UNIT RULE (2).
uninstructed delegate. A delegate who is not instructed
and may therefore vote according to his or her con
science. Cf. instructed delegate.
delegate assembly. See CONVENTION (4).
delegated legislation. See REGULATION (3).
delegated power. See POWER (3).
delegatee (del-a-g;l-tee). (1875) An agent or representa
tive to whom a matter is delegated.
delegation, n. (1612) 1. The act ofentrusting another with
authority or empowering another to act as an agent or
representative <delegation of contractual duties>. 2.
A group of representatives <a large delegation from
Texas>. delegate (del-;:l-gayt) (for sense 1), vb.
delegable (del-a-g;:l-b;:ll) |
gayt) (for sense 1), vb.
delegable (del-a-g;:l-b;:ll) (for sense 1), adj.
delegation doctrine. (1883) Constitutional law. The
principle (based on the separation-ai-powers concept)
limiting Congress's ability to transfer its legislative
power to another governmental branch, esp. the execu
tive branch. -Delegation is permitted only ifCongress
prescribes an intelligible principle to guide an executive
agency in making policy. -Also termed nondelegation
doctrine. [Cases: Constitutional Law (:::::>2400,2407.]
delegation ofduties. (1893) Contracts. A transaction by
which a party to a contract arranges to have a third
party perform the party's contractual duties.
delegation of powers. (1854) A transfer of authority by
one branch ofgovernment to another branch or to an
administrative agency. See DELEGATION DOCTRINE.
[Cases: Constitutional Law C=c2333.]
de legatis etfidei commissis (dee Ii-gay-tis et fI-dee-I
k;:l-mis-is). [Latin] Oflegacies and trusts. -This is a
title in the Pandects.
delegator (del-i-gay-t;:lr or -tor). One who delegates (a
responsibility, etc.) to another.
de lege ferenda (dee lee-jee f;:l-ren-d;:l). [Latin "from law
to be passed"] Int'llaw. A proposed principle that might
be applied to a given situation instead or in the absence
of a legal principle that is in force. Cf. DE LEGE LATA.
de lege lata (dee lee-jee lay-t;:l). [Latin "from law passed"]
Int'llaw. 1. Existing law. 2. The principle that a court
should decide based on actual law and not on how it
thinks the law ought to be. Cf. DE LEGE FERENDA.
deleterious (del-i'l-teer-ee-i'ls), adj. (1643) 1. Poisonous
<deleterious toxins>. 2. Unwholesome; psychologically
or physically harmful <deleterious influence>.
de libera fa Ida (dee lib-<>r-a fal-da or fawl-d;:l), n. [Law
Latin "of free fold"] Hist. A writ allowing a free feeding,
esp. of sheep on land. -This was a form ofquod per
mittat.
492 de libera piscaria
de libera piscaria (dee lib-ar-a pi-skair-ee-d), n. [Law
Latin "of free fishery"] Hist. A writ allowing an exclu
sive right to fish on public navigable water . This was
a form of quod permittat.
deliberate (di-Iib-[d]-rit), adj. (l5c) 1. Intentional; pre
meditated; fully considered. 2. Unimpulsive; slow in
deciding.
deliberate (di-lib-d-rate), vb. (Of a court, jury, etc.)
to weigh and analyze all the evidence after closing
arguments <the jury deliberated for 12 hours before
reaching a verdict>.
deliberate elicitation. (1966) Criminal procedure. The
purposeful yet covert drawing forth of an incrimi
nating response (usu. not during a formal interroga
tion) from a suspect whose Sixth Amendment right
to counsel has attached but who has not waived that
right. Deliberate elicitation may occur, for example,
when a police officer engages an arrested suspect in
conversation on the way to the police station. Deliber
ate elicitation violates the Sixth Amendment. Massiah
v. United States, 377 U.S. 201, 84 S.Ct. 1199 (1964). See
MASSIAH RULE.
deliberate indifference. See INDIFFERENCE.
deliberate-indifference instruction. See JEWELL
INSTRUCTION.
deliberate speed, with all. (l8I7) As quickly as the main
tenance oflaw and order and the welfare ofthe people
will allow, esp. with respect to the desegregation of
public schools. Brown v. Board ofEduc., 347 U.S. 483,
74 S.Ct. 686 (1954). [Cases: Schools C:::> 13(9).]
deliberation, n. (l4c) The act of carefully considering
issues and options before making a decision or taking
some action; esp., the process by which a jury reaches
a verdict, as by analyzing, discussing, and weighing
the evidence. See CONSIDERATION (3). [Cases: Criminal
Law <'::=857(1); Federal Civil Procedure G=:)1974; Trial
~'=>306.1 deliberate (di-lib-a-rayt), vb.
deliberative assembly. See ASSEMBLY.
deliberative-process privilege. (1977) The principle
that a decision-maker's thoughts and how they led
to a decision are not subject to revelation or scrutiny.
See U.S. v. Morgan, 313 U.S. 409, 61 S.Ct. 999 (1941).
An exception to the rule may be allowed if a party
can clearly show that the decision resulted from bias,
bad faith, misconduct, or illegal or unlawful action.
The privilege is meant to encourage open and inde
pendent discussion among those who develop govern
ment policy. [Cases: Privileged Communications and
Confidentiality C:::>361.] Also termed mental-process
privilege.
de libero homine exhibendo (dee lib-<lr-oh hom-d-nee
ek-si-ben-doh). [Latin "for the production of a free
man"] Roman law. An interdict requiring a free person
to be produced before a magistrate.
de libero passagio (dee lib-dr-oh p<l-say-jee-oh), n.
[Law Latin "of free passage"] Hist. A writ allOWing free passage over water . This was a form ofquod per
mittat.
de libertate probanda (dee Iib-ar-tay-tee proh-ban-d<l),
n. [Law Latin "for proving liberty"] Rist. A writ direct
ing a sheriff to take security from a person accused of
being a villein and to protect that person from harass
ment until the person's status was determined by the
justices ofassize.
de libertatibus allocandis (dee lib-dr-tay-td-bas al-<'J
kan-dis), n. [Law Latin "for allowing liberties"] Hist.
A writ allowing a person entitled to certain liberties
to obtain them.
de licentia transfretandi (dee h-sen-shee-a trans-fra
tan-dr), n. [Law Latin "ofpermission to cross the sea"]
Hist. A writ ordering wardens ofseaports, on certain
conditions, to permit any person named in the writ to
cross the sea.
delict (di-likt), n. [Latin delictum "an offense"] (l6c)
Roman & civil law. A violation of the law; esp., a
wrongful act or omission giving rise to a claim for
compensation; TORT. Also termed (in Roman law)
delictum; (in French law) delit. [Cases: Torts G=::> 107.]
"A delict is a civil wrong. It is an infringement of another's
interests that is wrongful irrespective of any prior contrac
tual undertaking to refrain from it though there may also
be one. It entitles the injured party to claim compensation
in civil proceedings though criminal proceedings aimed
at punishing the wrongdoer may also ensue." 1 P.Q.R.
Boberg, The Law ofDelict 1 (1984).
private delict. A wrong regarded primarily as a matter
ofcompensation between individuals.
public delict. A wrong for which the community as a
whole takes steps to punish the offender. Cf. public
tort under TORT.
quasi-delict. 1. Roman law. A residuary category of
private wrongs, characterized by either vicarious or
strict liability.
"QUASIDELICT . Justinian enumerates four cases of obliga
tions said to arise quasi ex delicto. The implication seems
to be that in all of them the law creates a liability though
the defendant may not in fact be to blame. The cases are
the following:- (1) The judge who 'makes the case his
own' . _ incurs a penalty fixed by the magistrate at dis
cretion .... (2) If anything was thrown, or poured, from
an upper room ... the occupier was liable for double the
damage .... (3) If a thing was kept placed or suspended
over a way used by the public ... there was a penalty ...
which might be recovered from the occupier .... (4) Ship
owners, innkeepers and stable keepers were liable for
damage or theft committed by slaves or free persons in
their employ ...." R.W. Lee, The Elements of Roman Law
401-02 (4th ed. 1956).
2. See quasi-offense under OFFENSE (2). 3. Scots law.
Tortious conduct that is negligent, as opposed to
intentional.
delictal. See DEUCTUAL.
deliction (di-lik-shdn). (1966) The loss ofland by gradual,
natural changes, such as erosion resulting from a
change in the course of a river or stream. Cf. ACCRE
TION (1); ALLUVION; AVULSION (2); EROSION. [Cases:
493
Navigable Waters Waters and Water Courses
~~93.]
delictual (di-lik-cha-wal), ad). Of, relating to, or involv
ing a delict; TORTIOUS. Also termed delictal.
delictual fault. See FAULT.
delictum. See DELICT.
deIimination. The act of marking a boundary or fixing
a limit.
delimit (di-lim-it), vb. (1852) To mark (a boundary); to
fix (a limit).
delimitation. A fixing oflimits or boundaries.
delineational gerrymandering. See GERRYMANDER
ING.
delinquency, n. (17c) 1. A failure or omission; a violation
ofa law or duty. See JUVENILE DELINQUENCY. 2. A debt
that is overdue in payment.
delinquency charge. See CHARGE.
delinquency jurisdiction. See JURISDICTION.
delinquent, adj. (17c) 1. (Of a person) failing to perform
an obligation. 2. (Of a person) guilty ofserious antiso
cial or criminal conduct. 3. (Of an obligation) past due
or unperformed.
delinquent, n. (i5c) 1. A person who fails to perform an
obligation. 2. A person guilty of serious antisocial or
criminal conduct. 3. JUVENILE DELINQUENT.
delinquent child. See CHILD.
delinquent minor. See JUVENILE DELINQUENT.
delinquent tax. See TAX.
de liquido in liquidum (dee lik-wi-doh in Uk-wi-dam).
[Law Latin] Scots law. Ofa liquid claim against a liquid
claim. -The phrase appeared in reference to the extin
guishment of a claim by setoff.
delirium. (l6c) 1. A disordered mental state, often occur
ring during illness. 2. Exaggerated excitement. 3. A
delusion; a hallucination.
delirium tremens. An illness characterized by hallucina
tions and violent trembling, induced by excessive con
sumption ofalcohol over a long period. -Also termed
mania a potu; settled insanity. Abbr. d.t:s.
delisting, n. The suspension of the privilege ofhaving a
security listed on an exchange. -Delisting results from
failing to meet the exchange's listing requirements, as
by not complying with the minimum net-asset require
ment. Cf. DEREGISTRATION. [Cases: Exchanges
13.10.] delist, vb.
delit. See DELICT.
deliverance. (14c) 1. A jury's verdict. 2. A judicial opinion
or judgment. 3. A court's order directing that a person
in custody be released; esp., such an order by an eccle
siastical court. -Also termed writ ofdeliverance. 4.
Archaic. In a replevin action, a writ ordering the rede
livery of goods to the owner.
second deliverance. Hist. A second replevin remedy
after the plaintiff has been nonsuited and the delivered duty unpaid
distrained property has been returned to the defen
dant. -Also termed writ ofsecond deliverance.
"And at the common law, the plaintiff might have brought
another replevin, and so in infinitum, to the intolerable
vexation of the defendant. Wherefore the statute of Westm.
2, c. 2 restrains the plaintiff, when nonsuited, from suing
any fresh replevin, but allows him a judicial writ issuing out
of the original record, and called a writ of second deliver
ance, in order to have the same distress again delivered
to him, on giving the like security as before. And, if the
plaintiff be a second time nonsuit, or if the defendant has
judgment upon verdict ... he shall have a writ or rerurn
irreplevisable; after which no writ of second deliverance
shall be allowed." 3 William Blackstone, Commentaries on
the Laws ofEngland 150 (1767).
5. Such a release (as in sense 3) or redelivery (as in sense
4).
delivered at frontier. A mercantile-contract term allo
cating the rights and duties of the buyer and the seller
of goods with respect to delivery, payment, and risk
Ofl05S, whereby the seller must (1) clear the goods for
export, (2) arrange and pay for transportation, and (3)
deliver the goods to a specified place on the importing
nation's border. -The seller's delivery is complete (and
the risk of loss passes to the buyer) when the goods
arrive at the deSignated point and are placed at the
disposal of the buyer. This |
buyer) when the goods
arrive at the deSignated point and are placed at the
disposal of the buyer. This term is generally used when
the delivery place is on land, but it places no explicit
restrictions on the mode of carriage. Ifthe delivery
place is a border port and delivery is complete either
onboard or alongside the vessel, the term delivered ex
ship or delivered ex quay is preferred. -Abbr. DAF. Cf.
DELIVERED EX SHIP; DELIVERED EX QUAY.
delivered duty paid. A mercantile-contract term allo
cating the rights and duties of the buyer and the seller
of goods with respect to delivery, payment, and risk
ofloss, whereby the seller must (1) clear the goods for
export, (2) bear the costs of carriage, (3) pay the buyer's
import duties, and (4) make the goods available to the
buyer on board the carrier at the destination. -TIle
seller's delivery is complete (and the risk of loss passes
to the buyer) when the seller's carrier arrives at the
agreed destination. This term is generally used when
the delivery place is on land, but it places no explicit
restrictions on the mode of carriage. If the delivery
point is a port and delivery is complete either onboard
or alongside the vessel, the term delivered ex ship or
delivered ex quay is preferred. Abbr. DDP. Cf. DELIV
ERED DUTY UNPAID; DELIVERED EX SHIP; DELIVERED
EX QUAY.
delivered duty unpaid. A mercantile-contract term
allocating the rights and duties of the buyer and the
seller of goods with respect to delivery, payment, and
risk ofloss, whereby the seller must (1) clear the goods
for export, (2) bear the costs of carriage (apart from
unloading charges and import duties), and (3) make
the goods available to the buyer on board the carrier at
the destination. -The seller's delivery is complete (and
the risk ofloss passes to the buyer) when the seller's
carrier arrives at the agreed destination. The buyer is
responsible for all import duties. This term is generally
used when the delivery place is on land, but it places
no explicit restrictions on the mode of carriage. Ifthe
delivery point is a port and delivery is complete either
onboard or alongside the vessel, the term delivered ex
ship or delivered ex quay is preferred. -Abbr. DDU.
Cf. DELIVERED DUTY PAID; DELIVERED EX SHIP; DELIV
ERED EX QUAY.
delivered ex quay. A mercantile-contract term allocat
ing the rights and duties of the buyer and the seller
of goods with respect to delivery, payment, and risk
ofloss, whereby the seller must (1) dear the goods for
export, (2) bear the costs oftransportation to the port
named by the importing buyer, and (3) place the goods
alongside the ship in the port of destination. -The
seller's delivery is complete (and the risk ofloss passes
to the buyer) when the goods are unloaded in the des
tination port. This term is used only when goods are
transported by sea or inland waterway. -Abbr. DEQ.
Cf. DELIVERED EX SHIP; FREE ALONGSIDE SHIP.
delivered ex ship. A mercantile-contract term allocat
ing the rights and duties of the buyer and the seller
of goods with respect to delivery, payment, and risk
of loss, whereby the seller must clear the goods for
export and bear the costs oftransportation (apart from
unloading charges and import duties) to the importing
nation's port ofdestination . The seller's delivery is
complete (and the risk ofloss passes to the buyer) when
the seller's carrier arrives at the destination port. This
term is used only when goods are transported by sea
or inland waterway. Abbr. DES. Cf. DELIVERED EX
QUAY; FREE ON BOARD.
delivery, n. (15c) 1. The formal act oftransferring some
thing, such as a deed; the giving or yielding posses
sion or control ofsomething to another. 2. The thing so
transferred or conveyed. Cf. LIVERY. -deliver, vb.
absolute delivery. (1808) A delivery that is complete
upon the actual transfer of the instrument from the
grantor's possession. -Such a delivery does not usu.
depend on recordation.
actual delivery. (17c) The act ofgiving real and imme
diate possession to the buyer or the buyer's agent.
conditional delivery. (I8c) A delivery that passes pos
session subject to the happening of a specified event.
Possession passes immediately; title remains con
ditional.
constructive delivery. (18c) An act that amounts to
a transfer of title by operation of law when actual
transfer is impractical or impossible . For example,
the delivery of a deposit-box key by someone who
is ill and immobile may amount to a constructive
delivery of the box's contents even though the box
may be miles away. For the three traditional types of
constructive delivery, see ATTORNMENT; CONSTITU
TUM POSSESSORIUM; TRADITIO BREVI MANU.
good delivery. Securities. A security's delivery when the
certificate (1) is in good condition, (2) belongs to the
person transferring it, (3) is properly indorsed, and (4) is accompanied by any legal documents necessary
for its negotiability.
jail delivery. See JAIL DELIVERY.
second delivery. 07c) A legal delivery by the deposi
tary of a deed placed in escrow. lCases: Deeds (;:::>
58; Deposits and Escrows (;:::>21.]
symbolic delivery. (I8c) The constructive delivery ofthe
subject matter ofa sale or gift by the actual delivery of
an article that represents the item, that renders access
to it possible, or that provides evidence ofthe title to
it, such as the key to a warehouse or a bill oflading for
goods on shipboard. [Cases: Sales 162.]
unconditional delivery. (I8c) A delivery that immedi
ately passes both possession and title and that takes
effect immediately.
delivery bond. Seeforthcoming bond under BOND (2).
delivery in escrow. (1842) The physical transfer of some
thing to an escrow agent to be held until some condi
tion is met, at which time the agent will release it. _ An
example ofsuch a delivery is a stock buyer's transfer of
cash to a bank that will give the seller the cash upon
receiving the stock certificates. This type of delivery
creates immediate conditional rights in the promisee.
The device may be used to create an option contract in
which the promisee has the option. See ESCROW. [Cases:
Deposits and Escrows 14.]
delivery ofdeed. (lSc) The placing ofa deed in the grant
ee's hands or within the grantee's control. By this act,
the grantor shows an intention that the deed operates
immediately as a conveyance. A deed may also be held
to be delivered when the grantor manifests the inten
tion to complete the conveyance, regardless of actual
delivery. [Cases: Deeds (;:::>54-67.]
delivery order. A written order to deliver goods, directed
to a warehouseman, carrier, or other person who ordi
narily issues warehouse receipts or bills oflading. UCC
7-1D2(l)(d).
de lucranda dote (dee loo-kran-dd doh-tee). [Latin "of
being enriched by the dowry"] Hist. A spousal agree
ment giving a husband the right to retain his wife's
dowry upon her death.
de lunatico inquirendo (dee loo-nat-;J-koh in-kw;J-ren
doh), n. [Law Latin "for inquiring about a lunatic"] Hist .
A writ or commission to determine whether a person is
a lunatic. -Also termed commission oflunacy.
demo abbr. DEMISE.
de magna assisa eligenda (dee mag-nd ;J-SI-Z;) el-i
;en-d;J), n. [Law Latin "of choosing the grand assize"]
Hist. A writ ordering a sheriff to summon 4 knights to
give oaths before the justices ofassize and then choose
12 more knights to form a grand assize to determine
who had the right in a writ of right.
demain. See DEMESNE.
de malo (dee mal-oh). [Law Latin] Of illness . This
term defined certain legal excuses, such as de malo lecti
("of illness in bed"), de malo veniendi ("of illness or
495
misfortune in coming where the court is"), and de malo
villae ("of illness in town where the court is").
demand, n. (l3c) 1. The assertion of a legal or proce
dural right.
contingent demand. A demand that cannot be fixed
because it depends on the occurrence of a contin
gency,
cross-demand, (18c) A party's demand opposing an
adverse party's demand. See COUNTERCLAIM; CROSS
CLAIM.
demand in reconvention. See reconventional demand.
incidental demand. Civil law. A plea by which a party
other than the plaintiff asserts a claim that is related
to the plaintiff's suit. -Examples include a cross
claim, a demand against a third party, an interven
tion, and a reconventional demand. La. Code Civ.
Proc. art. 1031.
legal demand. A lawful demand made by an autho
rized person.
main demand. Civil law. A plaintiff's principal or
primary claim against one or more defendants, con
tained in an original or validly amended pleading.
Also termed principal demand; principal action.
reconventional demand. Civil law. A plea by which a
defendant asserts any claim that it has against the
plaintiff, or any offset against the plaintiff's claim.
-This plea is similar to the common-law counter
claim. La. Code Civ. Proc. 1061 et seq. -Also termed
demand in reconvention.
2. Parliamentary law. A request, usu. invoking a right,
that must be granted on a Single member's motion.
See REQUEST. 3. A request for payment of a debt or an
amount due. 4. In economics, the intensity of buyer
pressure on the availability and cost of a commodity or
service. 3. A request for payment of a debt or an amount
due. [Cases: Bills and Notes <>393-399.]
personal demand. An in-person demand for payment
upon the drawer, maker, or acceptor of a bill or
note.
4. In economics, the intensity ofbuyer pressure on the
availability and cost of a commodity or service.
aggregate demand. 1. The total amount spent on goods
and services in an economy during a specific period.
2. The total demand for a firm's products and services
during a specific period.
derived demand. Product demand that is related to
another product's demand.
demand, vb. (14c) 1. To claim as one's due; to require; to
seek relief. 2. To summon; to call into court.
demandant. Archaic. The plaintiff in a real action (the
defendant being called a tenant). See real action under
ACTION.
demand clause. (1919) A provision in a note allOWing the
holder to compel full payment ifthe maker fails to meet
an installment. Cf. ACCELERATION CLAUSE. [Cases: Bills
and Notes de maritagio am;sso per defanam
demand deposit. See DEPOSIT (2).
demand draft. See Sight draft under DRAFT.
demand for document inspection. See REQUEST FOR
PRODUCTION.
demand for relief. See PRAYER FOR RELIEF.
demand in reconvention. See reconventional demand
under DEMAND.
demand instrument. (1924) An instrument payable on
demand, at Sight, or on presentation, as opposed to
an instrument that is payable at a set future date.
Also termed demand note. [Cases: Bills and Notes
129(3).]
demand letter. (1911) A letter by which one party
explains its legal position in a dispute and requests that
the recipient take some action (such as paying money
owed), or else risk being sued. _ Under some statutes
(esp. consumer-protection laws), a demand letter is a
prereqUisite for filing a lawsuit.
demand loan. See call loan under LOAN.
demand note. 1. See NDTE (1). 2. See DEMAND INSTRU
MENT.
demand of oyer. Hist. The assertion ofa party's right to
hear, read, or inspect a deed ofwhich profert is made
by the opposing party in a pleading. See OYER (3);
PROFERT.
demand ofview. Hist. In a real action, a request by a
defendant (called a tenant) to see the thing at issue
to ascertain its identity and the circumstances of the
claim. -If a real action was brought against a tenant
who did not know what land was at issue, the tenant
might demand a view. See VIEW (4).
demand-pull inflation. See INFLATION.
demand registration rights. See REGISTRATION RIGHTS.
demandress. Archaic. A female demandant. See DEMAN
DANT.
de manucaptione (dee man-ya-kap-shee-oh-nee), n.
[Law Latin "of manucaption"] Hist. A writ ordering
a sheriff to release on sufficient bail an accused felon
whose initial offer ofbail had been rejected.
de manutenendo (dee man-y<,Ha-nen-doh), n. [Law
Latin "of maintenance"] Hist. A writ against a person
who has wrongfully meddled in a lawsuit by provid
ing assistance to a party to continue the litigation. See
MAINTENANCE (6).
demarcation line. Int'I law. A provisional border haVing
the function ofseparating territories under different
jurisdictions, usu. established when the political situ
ation does not admit a final boundary arrangement.
Also termed line ofdemarcation.
demarche (day-mahrsh). [French "gait; walk"] An oral
or written diplomatic statement, esp. one containing
a demand, offer, protest, threat, or the like. Also
spelled demarche. See AIDE-ME MOIRE.
de maritagio amisso per defaltam (dee mar- |
demarche. See AIDE-ME MOIRE.
de maritagio amisso per defaltam (dee mar-~-tay-jee-oh
a-mis-oh par da-fawl-tam), n. [Law Latin] Hist. A writ
available to a tenant of a frank marriage to regain land
lost by default.
dematerialized security. See uncertificated security
under SECURITY.
de me (dee mee). [Latin] Of me. This phrase appeared
in feudal grants to confirm that a superior lord's per
mission was not needed for the conveyance. This was
distinguished from a conveyance a me de superiore mea
("from me ofmy superior"), in which the estate is to be
held ofthe superior, and is invalid unless confirmed by
the superior. Cf. A ME.
demeanor. (iSc) Outward appearance or behaVior, such
as facial expressions, tone of voice, gestures, and the
hesitation or readiness to answer questions . In evalu
ating credibility, the jury consider the witness's
demeanor. [Cases: Witnesses
demeanor evidence. See EVIDENCE.
demease (di-meez), n. Hist. Death. See DEMISE.
de medietate linguae (dee mee-dee-d-tay-tee ling-gwee).
[Law Latin] Ofhalf-tongue . This term describes a
jury made up ofan equal number ofnatives and aliens.
Edward III originally provided for such a jury in com
mercial cases when one party was an alien. It was later
extended to criminal cases. Ifenough aliens could not
be found, trial proceeded with the available number.
de medio (dee mee-dee-oh), n. [Law Latin "of mesne"]
Hist. A writ against a mesne (i.e., middle) lord to protect
an undertenant from harassment by a paramount lord
for rent actually due from the mesne lord. Also
termed writ ofmesne.
de melioribus damnis (dee mee-Iee-or-;>-b;>s dam
nis). [Law Latin] Of the better damages . This term
describes a plaintiff's election ofthe defendant against
which to take judgment when the jury has mistak
enly awarded separate damages against two or more
defendants for a jOint tort. Under these circumstances,
the plaintiff could take a judgment against the defen
dant that had been assessed the greatest damages, and
then enter a nolle prosequi against the others. [Cases:
Judgment C=:)240, 256(4, 5).]
demembration (dee-mem-bray-shan), n. The cutting off
of a limb; dismemberment; mutilation.
demented, adj. Not of sound mind; insane.
dementenant en avant (da-men-t;>-nahnt on ;>-vahnt).
[Law French] From this time forward.
de mercatoribus (dee m;>r-k;>-tor-;>-b;>s), n. [Latin "of
merchants"] Hist. The title of two statutes enacted in
the lIth and 13th years ofthe reign of Edward I, provid
ing that the land ofa business debtor could be held by a
creditor as security until the debt was paid.
"But by the statute de mercatoribus ... the whole of a man's
lands was liable to be pledged in a statute merchant, for
a debt contracted in trade; though one half of them was
liable to be taken in execution for any other debt of the
owner." 1 William Blackstone, Commentaries on the Laws
ofEngland 161 (1765). demesne (di-mayn or di-meen), n. [French] (14c) l. At
common law, land held in one's own right, and not
through a superior; esp., land attached to a manor and
reserved for the court's own use. 2. Domain; realm.
Also spelled demain.
ancient demesne. Hist. A manor that was held by the
Crown at the time ofWilliam the Conqueror and was
recorded in the Domesday Book.
demesne as offee. Hist. Complete ownership ofsome
thing.
"But there is this distinction between the two species of
hereditaments: that, of a corporeal inheritance a man shall
be said to be seised in his demesne, as of fee; of an incor
poreal one, he shall only be said to be seised as of fee,
and not in his demesne. For, as incorporeal hereditaments
are in their nature collateral to, and issue out of, lands
and houses, their owner hath no property, dominicum,
or demesne, in the thing itself, but hath only something
derived out of it; resembling the servitutes, or services, of
the civil law." 2 William Blackstone, Commentaries on the
Laws of Eng/and 106 (1766).
demesne land. See LAND.
demesne land of the Crown. See Crown land under
LAND.
demesnial (di-may-nee-;>l or di-meen-ee-;>l), adj. Ofor
relating to a demesne.
demi (dem-ee), n. [French] Half; the half. The term is
most often a combining form, as in demi-sangue.
demidietas (dem-ee-dI-d-tas), n. [Law Latin] A half; a
moiety.
demilitarization. Int'llaw. The process by which a
country obligates itself not to station military forces
or to maintain military installations -in specified
areas or zones within its territory.
demilitarized zone. Int'llaw. A territorial area in a
country or between countries in which no military
forces or military installations are stationed or main
tained.
demimark. Hist. Half a mark; money equal to six shil
lings and eight pence, required to be tendered in a writ
ofright to force the demandant to prove seisin. Also
termed half-mark.
de minimis (d;> min-a-mis), adj. [Latin "of the least"]
(1952) l. Trifling; minimal. 2. (Of a fact or thing) so
insignificant that a court may overlook it in deciding
an issue or case. 3. DE MINIMIS NON CURAT LEX.
de minimis non curat lex (d;> min-d-mis non kyoor-at
leks). [Latin] The law does not concern itself with
trifles. Often shortened to de minimis.
de minimis test. Copyright. A judicial test for determin
ing whether a contributor to a joint work is an author tor
legal purposes, based on whether the joint effort itself
is an original expression that qualifies for copyright
protection . This test has been rejected in favor ofthe
copyrightability test by most courts that have addressed
the issue. Cf. COPYRIGHTABILlTY TEST. [Cases: Copy
rights and Intellectual Property ('.::::>41(3).]
497 demote
de minis (dee min-is), n. [Latin "of threats"] Hist. A writ
ordering a person to keep the peace when the person
has threatened another person with bodily harm or
property destruction.
deminutio (dee-mi-n[y]oo-shee-oh), n. [ff. Latin deminu
ere "taking away"] Roman law. A deprivation or loss .
The term appeared, for example, in the phrase capitis
deminutio "the loss of civil status." -Also spelled dimi
nutio. See CAPITIS DEMTNUTIO. Pl. deminutiones (dee
mi-n[y]oo-shee-oh-neez).
demi-sangue (dem-ee-sang). [Law French] Hist. Half
blood; blood on either the father's or the mother's
side. Also termed demy-sangue.
demise (di-mIZ), n. (15c) 1. The conveyance ofan estate
usu. for a term ofyears, a lease <the demise ofthe land
for one year>. 2. The instrument by which such a con
veyance is accomplished <the demise set forth the
terms of the transfer>. 3. The passing of property by
descent or bequest <a testator's demise of $100,000 to
charity>. 4. 'The death of a person or (figuratively) of
a thing <the corporation's untimely demise>. Abbr.
demo See DEATH. demise, vb.
demise of the Crown. The immediate, automatic
transfer of a kingdom to a successor upon a sover
eign's death or long absence from the throne.
"The king never dies. Henry, Edward. or George may die;
but the king survives them all. For immediately upon the
decease of the reigning prince in his natural capacity, his
kingship or imperial dignity, by act of law, without any ...
interval, is vested at once in his heir; who is, eo instanti,
king to all intents and purposes. And so tender is the law
of supposing even a possibility of his death, that his natural
dissolution is generally called his demise . .. an expression
which signifies merely a transfer of property; for ... when
we say the demise of the crown, we mean only that, in con
sequence of the disunion of the king's body natural from
his body politic, the kingdom is transferred or demised to
his successor; and so the royal dignity remains perpetual."
1 William Blackstone. Commentaries on the Laws ofEng/and
242 (1765).
joint demise. In an ejectment action, a demise made
by two or more persons in one declaration. [Cases:
Ejectment ~65.1
separate demise, In an ejectment action, a demise made
solely by the lessor.
several demise. (often pI.) Hist. In an ejectment action,
a list ofdemises by all people potentially owning the
property at issue, used to ensure that the plaintiff had
proved a lease from the person actually having title.
See EJECTMENT.
single demise. In an ejectment action, a declaration
containing one demise. See EJECTMENT. [Cases: Eject
ment<>65.]
demise charter. See bareboat charter under CHARTER
(8).
demise charterer. See bareboat charter under CHARTER
(8).
demised premises. See PREMISES. demisi (di-mI-Z1). [fro Latin demittere] I have demised,
This was the operative phrase in a lease.
demissio (di-mish-ee-oh), n. [fro Latin demittere "to
demise"] Hist. A lease or other transfer . In an eject
ment action, this term was used in the phrase ex demis
sione ("on the demise") to show that a nominal plaintiff
(a fictitious person) held an estate on a demise from the
real plaintiff.
de mittendo tenorem recordi (dee mi-ten-doh t;:l-nor-;:lm
ri-kor-dT), n. [Law Latin "of sending the tenor of a
record"] Hist. A writ to certify a record under seal.
demobilization. A dismissal of troops from active
service.
democracy, rl. Government by the people, either directly
or through representatives elected by the people. Cf.
REPUBLIC. -democratic, adj.
de moderata misericordia capienda (dee mod-;:l-ray-t;:l
miz-;:l-ri-kor-dee-;:l kap-ee-en-d;:l), rl. [Law Latin "for
taking a moderate amercement"] Hist. A writ ordering
a bailiff to take a moderate penalty from a party who
had been excessively penalized in a court not ofrecord.
The writ was founded on Magna Carta.
de modo decimandi (dee moh-doh des-;:l-man-dI), n.
[Law Latin] Eccles. law. Of a mode of tithing. _ This
refers to any special kind of tithing by custom that is
different from the general law that usu. required the
tenth part ofan annual increase. For example, it could
mean a twelfth part of a quantity of hay rather than a
tenth part or a couple ofhens instead ofa normal tithing
ofeggs. -Also termed modus decimandi; modus.
de momenta in momentum (dee m;:l-men-toh in m;:l-men
t;:lm). [Latin] Scots law. From moment to moment.
The phrase appeared in reference to terms for counting.
For example, a minor's age was counted de momenta in
momentum until the last moment of21 years. The years
of prescription were also thus computed.
demonetization. A disuse ofa metal in coinage; a with
drawal of the value ofa metal as money <the demon
etization ofgold in the United States>.
demonstratio (dem-;:ln-stray-shee-oh), n. [fr. Latin
demonstrare "to show"] Roman law. 1. A description, as
infalsa demonstratio (a false description ofsomething
or someone in a will). 2. Under the formulary proce
dure, the statement of facts in a formula, forming the
basis of a claim. PI. demonstrationes (dem-;:ln-stray
shce-oh-neez). See FORMULA (1).
demonstrative bequest. See BEQUEST.
demonstrative devise. See DEVISE.
demonstrative evidence. See EVIDENCE.
demonstrative legacy. See LEGACY.
de morte antecessoris (dee mor-tee an-ti-ses-;:lr-is). [Law
Latin] Scots law. Concerning the death ofthe ancestor.
-The phrase occurs in the brieve of mortancestry,
equivalent to the English mort d 'ancestor.
demote, vb. To lower (usu. a person) in rank, position,
pay, or other status. See DEGRADATION (1).
498 de munere regia
de munere regio (dee myoo-ndr-d ree-jee-oh). [Law
Latin] Scots law. By royal gift . The phrase described
land held under feudal tenure.
demur (di-mdr), vb. (l7c) 1. To file a demurrer. See
DEMURRER. 2. To object to the legal sufficiency of a
claim alleged in a pleading without admitting or
denying the truth of the facts stated. [Cases: Pleading
(;::> 189.] 3. To object to the legal sufficiency ofa claim
alleged in a ple |
(;::> 189.] 3. To object to the legal sufficiency ofa claim
alleged in a pleading while admitting the truth of the
facts stated. [Cases: Pleading (;::> 189,214.]
demurrable (di-mdr-d-bdl), adj. (1827) (Of a claim,
pleading, etc.) subject to a demurrer <a demurrable
pleading>. See DEMURRER.
demurrage (di-mdr-ij). (usu. pi.) Maritime law. 1. Liqui
dated damages owed by a charterer to a shipowner for
the charterer's failure to load or unload cargo by the
agreed time. [Cases: Shipping (;::> 170.]
contract demurrage. Demurrage paid by a vessel's
charterer if the time to load or unload the vessel at
port takes longer than that agreed on in the char
terer's contract with the shipowner. Cf. DISPATCH
MONEY.
'The contract may also provide that if ... the loading time
exceeds that fixed by the charter, the charterer will pay a
liquidated compensation termed 'contract demurrage.'''
Frank l. Maraist, Admiralty in a Nutshell 56 (2d ed. 1988).
noncontract demurrage. Demurrage not provided
by contract, but ordered by a court. -Also termed
damages for detention.
"After the ... days on contract demurrage have expired,
the charterer of course still remains liable for further delay,
but the liability now is one for noncontract demurrage,
which will be fixed by the court just as would any other
unliquidated claim for damages. Noncontract demurrage
may also be referred to as 'damages for detention.'" Grant
Gilmore & Charles l. BlackJr., The Law ofAdmiralty 48,
at 212 (2d ed. 1975).
2. A charge due for the late return ofocean containers
or other equipment.
demurrage lien. See LIEN.
demurrant (di-mdr-dnt). One who demurs; esp., a litigant
who files a demurrer.
demurrer (di-mdr-dr). [Law French demorer "to wait or
stay"] (l6c) A pleading stating that although the facts
alleged in a complaint may be true, they are insufficient
for the plaintiff to state a claim for relief and for the
defendant to frame an answer . In most jurisdictions,
such a pleading is now termed a motion to dismiss, but
demurrer is still used in a few states, including Cali
fornia, Nebraska, and Pennsylvania. Cf. DENIAL (1).
[Cases: Federal Civil Procedure (;::>658,1725; Pleading
(;::> 189, 193(5).]
'The word 'demurrer,' derived from the Latin demorari, or
the French demorrer, meaning to 'wait or stay,' imports that
the party demurring waits or stays in his proceedings in the
action until the judgment of the court is given whether he
is bound to answer to so insufficient a pleading. Each party
may demur to what he deems an insufficient pleading of
the other. The demurrer was general when it was to matter
of substance; it was special when it was made to matter
of form, and must specifically point out the defect." Edwin E. Bryant, The Law of Pleading Under the Codes of Civil
Procedure 15 (2d ed. 1899).
demurrer ore tenus. An oral demurrer. See ORE
TENUS.
"The codes either expressly or by implication require all
pleadings to be in writing. To this proposition there is the
apparent exception that objections to the jurisdiction of
the court, or to the sufficiency of a pleading, that it does
not state a cause of action or defence, may be raised on
the trial by what is sometimes called a demurrer are tenus
(that is, orally, -by word of mouth)." Edwin E. Bryant, The
Law of Pleading Under the Codes of Civil Procedure 179
(2d ed. 1899).
general demurrer. See general exception (1) under
EXCEPTION (1).
parol demurrer. Hist. A suspension of proceedings
during the minority ofan infant.
speaking demurrer. (l8c) A demurrer that cannot be
sustained because it introduces new facts not con
tained in the complaint. [Cases: Pleading (;::>210.]
special demurrer. (17c) A demurrer that states grounds
for an objection and specifically identifies the nature
of the defect, such as that the pleading violates the
rules ofpleading or practice . Ifa pleading is defec
tive in form but not substance, the defect must be
pointed out by a special demurrer. [Cases: Pleading
(;::>206.]
demurrer book. Hist. A record of the demurrer issue
used by the court and counsel in argument.
demurrer to evidence. (17c) A party's objection or excep
tion that the evidence is legally insufficient to make a
case. Its effect, upon joinder in the demurrer by the
opposite party, is that the jury is discharged and the
demurrer is entered on record and decided by the court.
A demurrer to evidence admits the truth of all the
evidence and the legal deductions from that evidence.
[Cases: Criminal Law (;::>752; Trial (;::> 150.]
demurrer to interrogatories. (18c) The objection or
reason given by a witness for failing to answer an inter
rogatory.
demutualization, n. The process ofconverting a mutual
insurance company (which is owned by its policyhold
ers) to a stock insurance company (which is owned by
outside shareholders), usu. as a means ofincreasing the
insurer's capital by allowing the insurer to issue shares.
About half the states have demutualization statutes
authorizing such a conversion. [Cases: Insurance (;::>
1160.] -demutualize, vb.
demy-sangue. See DEMI-SANGUE.
den and strond (den an[d] strond). Hist. Permission for
a ship to run aground or strand itself.
denarius (di-nair-ee-ds), n. [Law Latin "penny"] 1.
Roman law. The principal silver coin used by the
Romans. 2. Hist. An English penny; a pence. 3. (pl.)
Slang. Money in general. PI. denarii. -Also termed
(in senses 1 & 3) denier.
denarius Dei (di-nair-ee-ds dee-I), n. [Law Latin "God's
penny"] Hist. Earnest money exchanged by contracting
499
parties, so called because the money was originally
given either to the church or to the poor . The denarius
Dei was not part of the consideration. Also termed
argentum dei. See ARRA.
denationalization. 1. lnt'llaw. The unilateral act of a
country in depriving a person of nationality, whether
by administrative decision or by operation of law.
Strictly, the term does not cover a person's renuncia
tion ofcitizenship. 2. The act ofreturning government
ownership and control of an industry or function to
private ownership and control. Cf. PRIVATIZATION.
[Cases: Aliens, Immigration, and Citizenship
729.] -denationalize, vb.
de nativo habendo (dee na-tI-voh ha-ben-doh), n. [Law
Latin "about a serf to be held"] Hist. A writ directing a
sheriff to apprehend and return a runaway serf to the
serf's lord . A trial on the writ would determine the
lord's ownership status.
de natura brevium (dee m-tyoor-a bree-vee-a). [Latin]
Concerning the nature ofwrits. This was a common
title oftextbooks on English medieval law.
denaturalization. The process by which a government
deprives a naturalized citizen ofall rights, duties, and
protections of citizenship. See 8 USCA 1451. denat
uralize, vb.
denelage. See DANELAW.
denial, n. (l6c) 1. A refusal or rejection; esp., a court's
refusal to grant a request presented in a motion or
petition <denial of the motion for summary judgment>.
2. A defendant's response controverting the facts that a
plaintiff has alleged in a complaint; a repudiation <the
worker filed a denial alleging that physical contact
never occurred>. Cf. DEMURRER. [Cases: Federal Civil
Procedure (;=741; Pleading
conjunctive denial. (1860) A response that controverts
all the material facts alleged in a complaint.
disjunctive denial. (1920) A response that controverts
the truthfulness oftwo or more factual allegations of
a complaint in the alternative.
general denial. (16c) A response that puts in issue all
the material assertions ofa complaint or petition.
Also termed general plea. Federal Civil Pro
cedure (;=742; Pleading
qualified general denial. (1844) A general denial ofall
the allegations except the allegations that the pleader
expressly admits.
"The qualified general denial most frequently is used
when a limited number of allegations in the complaint
are to be admitted. This form of denial also is employed
when defendant cannot expressly deny an averment in
his opponent's pleading and therefore cannot submit a
general denial, although defendant wants to put plaintiff
to his proof on that averment by interposing a denial of
knowledge or information sufficient to form a belief or a
denial on information and belief." 5 Charles Alan Wright
&Arthur Miller, Federal Practice and Procedure 1266, at
405 (2d ed. 1990).
specific denial. (1850) A separate response applicable
to one or more particular allegations in a complaint. de non alienando sine consensu superiorum
[Cases: Federal Civil Procedure ~742; Pleading C:=:;;
124.]
3. A refusal or rejection <denial of an employment
application>. 4. A deprivation or withholding <denial
ofdue process>. -deny, vb.
denial ofjustice. Int'llaw. A defect in a country's organi
zation ofcourts or administration ofjustice, resulting
in the country's violating its international legal duties
to protect aliens. - A denial of justice is a wrongful
act under international law. -Also termed justitia
denegata; deni de justice; refus de justice.
denial-of-service attack. A malicious strike against
a computer, website, network, server, or database
deSigned to render it inaccessible, usu. byoverwhelm
ing it with activity or by forcing it to malfunction.
Also termed nuke. Abbr. DoS attack.
distributed denial-ol-service attack. A denial-of-ser
vice attack carried out by distributing a virus that
causes infected computers to try to access the target
computer at the same time. -Abbr. DDoS attack.
denier, n. 1. (da-nyay) [French fro Latin denarius]
DENARIUS (1). 2. DENARIUS (3). 3. (di-nI-ar). [Law
French] Hist. Denial; refusal, as in refusal to pay rent
when demanded.
Denier aDieu (da-nyay ah dyuu or dyoo). [French
"God's money"] French law. Earnest money exchanged
by contracting parties. See DENARIUS DEI.
denization (den-a-zay-shan). The act of making a person
a denizen. See DENIZEN. -Also termed indenization.
denize (den-Iz or di-nIz), vb. To make (a person) a
denizen. See DENIZEN.
denizen (den-a-zan).(15c) 1. A person given certain
rights in a foreign nation or living habitually in a
foreign nation. 2. English law. A person whose status
is midway between being an alien and a natural-born
or naturalized subject.
Denman's Act. Hist. l. The (English) Evidence Act of
1843, providing that no person offered as a witness can
be excluded because of incapacity due to a past crime
or an interest in the proceedings. -Also termed Lord
Denman's Act. 2. The (English) Criminal Procedure
Act of 1865 that allowed defense counsel to sum up
evidence as allowed in a civil trial, to prove contradic
tory statements made by an adverse witness, to prove a
previous criminal conviction ofan adverse witness, and
to compare samples ofdisputed handwriting. -Also
termed Mr. Denman's Act.
denomination. (I5c) 1. An act ofnaming. 2. A collective
designation, esp. ofa religiOUS sect.
de non alienando (dee non ay-lee-a-nan-doh). [Law
Latin] Scots law. For not alienating. _ The phrase was
used to restrict the transfer ofproperty.
de non alienando sine consensu superiorum (dee non
ay-lee-a-nan-doh SI-nee kan-sen-s[y]oo s[y]oo-peer
ee-or-am). [Law Latin] Scots law. Concerning the
nonalienation of the lands without the consent ofthe
superior. The phrase was frequently present in a
charter to a vassal.
de non contrahendo debito (dee non kon-tr<l-hen-doh
deb-i-toh). [Law Latin] Scots law. Against the contrac
tion ofdebt. The phrase was inserted in an entail to
prevent the heir from incurring debt.
de non decimando (dee non des-<l-man-doh), n. [Law
Latin "of not paying tithes"] Eccles. law. A claim for
release from paying a tithe. Also termed modus de
non decimando.
"A prescription de non decimando is a claim to be entirely
discharged of tithes, and to pay no compensation in lieu of
them..Thus the king by his prerogative is discharged from
all t |
to pay no compensation in lieu of
them..Thus the king by his prerogative is discharged from
all tithes. So a vicar shall pay no tithes to the rector, nor the
rector to the vicar .... But these privileges are persona!
to both the king and the clergy; for their tenant or lessee
shall pay tithes .... And from this original have sprung all
the lands, which, being in lay hands, do at present claim
to be tithefree: for, if a man can show his lands to have
been such abbey lands, and also immemorially discharged
of tithes ... this is now a good prescription, de non deci
mando. But he must show both these requisites for abbey
lands, without a special ground of discharge, are not dis
charged of course; neither will any prescription de non
decimando avail in total discharge of tithes, unless it relates
to such abbey lands." 2 William Blackstone, Commentaries
on the Laws of Eng/and 31-32 (1766).
de non procedendo ad assisam (dee non proh-sa-den
doh ad <I-SI-Z<lm), n. [Law Latin "of not proceeding to
take an assize"] Hist. A writ ordering justices not to
hold an assize in a particular case.
de non residentia clerici regis (dee non rez-a-den-shee-<I
kler-<l-SI ree-jis), n. [Law Latin "ofthe nonresidence of
a parson employed in royal service"] Hist. A writ to
excuse a parson from nonresidence because the parson
is busy serving the Crown. See NONRESIDENCE (1).
de non sane memorie (dee non sayn mem-a-ree). [Law
French] Ofunsound memory; ofunsound mind. See
MIND AND MEMORY; NON COMPOS MENTIS.
denotative fact. See FACT.
denounce, vb. (l3c) 1. To condemn openly, esp. publicly.
2. To declare (an act or thing) to be a crime and pre
scribe a punishment for it. 3. To accuse or inform
against. 4. To give formal notice to a foreign country
ofthe termination of (a treaty).
denouncement. 1. An act ofaccusation or condemna
tion <denouncement of a thief>. 2. A declaration ofa
threatened action <denouncement ofwar> <denounce
ment ofa treaty>. 3. An application for a grant to work
a mine that is either newly discovered or forfeited <the
denouncement was granted> . Historically, denounce
ments were also granted under Spanish-American law.
4. Archaic. A formal announcement; a declaration <a
denouncement ofa doctrine>. -Also termed denun
ciation. -denunciatory, denunciative, adj.
de novi operis nuntiatione. See NOVI OPERIS NUNTIA
TIO.
de novo (di noh-voh or dee), adj. (1536) Anew.
hearing de novo. See HEARING.
trial de novo. See TRIAL. venire facias de novo (v~-nI-ree fay-shee-<ls dee noh
voh). See VENIRE FACIAS.
de novo damus (di noh-vah day-mas). [Law Latin "we give
anew"] Scots law. The novodamus clause in a renewal of
a gift or previous charter. See NOVODAMUS.
de novo judicial review. See JUDICIAL REVIEW.
de novo review. 1. See appeal de novo under APPEAL. 2.
See de novo judicial review under JUDICIAL REVIEW.
density zoning. See cluster zoning under ZONING.
denumeration. (l8c) An act of making a present
payment.
denunciation. See DENOUNCEMENT.
denuntiatio (di-nan-shee-ay-shee-oh), n. [Latin] 1.
Roman & civil law. A declaration intended to protect
or set in motion the enforcement ofthe declarer's right;
esp., a report ofa crime. 2. Hist. A summons; a public
notice. 3. Scots law. The Crown's public denunciation of
a debtor as a rebel and an outlaw when the debtor has
disobeyed an order to pay. PL denuntiationes.
denuntiatio belli (di-nan-shee-ay-shee-oh bel-I). [Latin
"declaration ofwar"). A declaration ofwar. See declara
tion of war under DECLARATION (3).
deny the appeal. See AFFIRM (1).
deodand (dee-d-dand). Hist. Something (such as an
animal) that has done wrong and must therefore be
forfeited to the Crown. _ Deodand was abolished in
1846.
"In the oldest records, we see no attempt to distinguish
the cases in which the dead man was negligent from those
in which no fault could be imputed to him, and the large
number of deodands collected in every eyre suggests that
many horses and boats bore the guilt which should have
been ascribed to beer. A drunken carter is crushed beneath
the wheels of his cart; the cart, the cask of wine that was
in it and the oxen that were drawing it are all deodand.
Bracton apparently thought it an abuse to condemn as
deodand a thing that had not moved: he would distinguish
between the horse which throws a man and the horse off
which a man stupidly tumbles, between the tree that falls
and the tree against which a man is thrown. We do not see
these distinctions in the practice of the courts." 2 Frederick
Pollock & Frederic William Maitland, History ofEnglish Law
Before the Time of Edward 1474 n.4 (2d ed. 1899).
"[WJhen in 1716 the coroner's jury of Yarmouth declared a
stack of timber which had fallen on a child to be forfeited
as a deodand, it was ransomed for 30s., which was paid
over to the child's father." J.W. Cecil Turner, Kenny's Outlines
ofCriminal Law 7 (16th ed. 1952).
de odio et atia (dee oh-dee-oh et ay-shee-a), n. [Law
Latin "of hatred and malice"] Hist. A writ ordering
a sheriff to summon a 12-member jury to inquire
whether a prisoner jailed for murder was charged for
a good reason or only because ofill-will and to deter
mine whether bail should be set. Ifthe prisoner was
accused out of spite or had committed the crime in
self-defense, then another writ called tradas in ballim
would have been issued ordering the sheriffto release
the prisoner on bail if the sheriffcould find 12 good
citizens of the county to vouch for the prisoner. This
writ, similar to habeas corpus, was first mentioned in
Magna Carta. -Also termed breve de bono et malo.
501 Department of Housing and Urban Development
de onerando pro rata portione (dee on-;:l-ran-doh proh
ray-t;:l por-shee-oh-nee), n, [Law Latin "of charging
according to a ratable proportion"] Hist, A writ for a
joint tenant or cotenant who is distrained for more rent
than is proportionately required,
deontology. The philosophy of ethics, rights, and duties
as a matter of natural law . Moral rights in one's one
intellectual property are often considered deontological
issues. -deontologkal, adj.
de pace et legalitate tenenda (dee pay-see et la-gal-a-tay
tee t;:l-nen-d<l). [Latin] Hist. A writ for keeping the peace
and adherence to the laws (or good behavior). -Also
termed depace et legaNtate tuenda.
de pace et plagis (dee pay-see et play-jis), n. [Law Latin
"of breach of peace and wounds"] Hist. A type of
criminal appeal used in cases of assault, wounding,
and breach ofthe peace.
de pace et roberia (dee pay-see et roh-beer-ee-<l), n. [Law
Latin "of breach ofpeace and robbery") Hist. A type of
criminal appeal used in cases of robbery and breach
ofthe peace.
de parco fracto (dee pahr-koh frak-toh), n. [Law Latin
"of pound breach"] Hist. A writ against someone, esp.
an owner, who breaks into a pound to rescue animals
that have been legally distrained and impounded.
"And, being thus in the custody of the law, the taking them
back by force is looked upon as an atrocious injury, and
denominated a rescous, for which the distreinor has a
remedy in damages, either by writ of rescous, in case they
were going to the pound, or by writ de parco fracto, or
poundbreach, in case they were actually impounded." 3
William Blackstone, Commentaries on the Laws ofEng/and
146 (1768).
de partitione facienda (dee pahr-tish-ee-oh-nee fay
shee-en-d<l), n. [Law Latin] Hist. A writ to partition
lands or tenements.
department, n. (l8c) L A division of a greater whole;
a subdivision <a legal department>. 2. A country's
division ofterritory, usu. for governmental and admin
istrative purposes, as in the division of a state into
counties <France has regional departments similar to
states>. 3. A principal branch or division of govern
ment <legislative department>; speci., a division of the
executive branch of the U.S. government, headed by a
secretary who is a member of the President's cabinet
<Department of Labor>. [Cases: United States
30.) departmental, adj.
Department of Agriculture. The cabinet-level depart
ment ofthe federal government responsible for improv
ing farm income, developing foreign markets for U.S.
farm products, conducting agricultural research, and
inspecting and grading food products . Created in
1862, it is headed by the Secretary of Agriculture. -
Abbr. USDA. [Cases: Agriculture Cr':::>2.]
Department of Commerce. The cabinet -level depart
ment of the federal government responsible for pro
moting the nation's international trade, economic
growth, and technical advancement . Designated as
a department in 1913, it is headed by the Secretary of Commerce. -Abbr. DOC. [Cases: United States
33.]
Department of Defense. See DEFENSE DEPARTMENT.
Department ofDefense Dependents Schools. A unit in
the U.S. Department ofDefense responsible for operat
ing schools from kindergarten through grade 12 for the
dependents of military and civilian personnel stationed
overseas. -Abbr. DoDDS.
Department ofEducation. The cabinet-level department
ofthe federal government responsible for advising the
President on federal education policy, and adminis
tering and coordinating most federal programs of
assistance to education . Headed by the Secretary
of Education, the Department includes the Office of
Bilingual Education and Minority Languages Affairs
(OBEMLA), the Office of Educational Research and
Improvement (OERI), the Office of Elementary and
Secondary Education (OESE), the Office of Post sec
ondary Education (OPE), the Office of Special Educa
tion and Rehabilitative Services (OSERS), the Office of
Student Financial (OSF), the Office of Vocational and
Adult Education (OVAE), and ten regional offices. -
Abbr. DOE. [Cases: Schools
Department of Energy. The cabinet-level department
of the federal government responsible for advising the
President on energy policies, plans, and programs, and
for providing leadership in achieving efficient energy
use, diversity in energy sources, and improved environ
mental quality . Headed by the Secretary ofEnergy, it
oversees a comprehensive national energy plan, includ
ing the research, development, and demonstration of
energy technology; energy conservation; the nuclear
weapons program; and pricing and allocation. Abbr.
DOE. [Cases: United States C=>33.)
Department of Health and Human Services. The cabi
net-level department of the federal government respon
sible for matters ofhealth, welfare, and income security.
Itwas originally established by Reorganization Plan
No.1 of 1953 under the title Department of Health,
Education, and Welfare, The Department is headed by
the Secretary of Health and Human Services. Abbr.
HHS. [Cases: Social Security and Public Welfare
5.)
Department of Homeland Security. '{he cabinet-level
department ofthe federal government responsible for
ensuring security within the U.S. borders and in its
territories and possessions . The Department has five
major divisions: Border and Transportation Security,
Emergency Preparedness and Response, Science and
Technology, Information Analysis and Infrastruc
ture, and Management. Itwas established in 2002 and
began operating in 2003. Abbr. DHS. [Cases: War
and National Emergency
Department ofHousing and Urban Development. The
cabinet-level department of the federal government
responsible for overseeing programs that are con
cerned with hOUSing needs and fair-housing oppor
tunities, and with improving and developing the
502 department of human services
nation's communities . It was established in 1965 bv
the Department of Housing and Urban Developmen't
Act. 42 USCA 3532-37. It is headed by the Secretary
of Housing and Urban Development. -Abbr. HUD.
[Cases: United States C:=>82(3).J
department of human services. See DEPARTMENT OF
PUBLIC WELFARE. -Abbr. DHS.
Department of Justice. The federal executive division
that is responsible for federal law enforcement and
related programs and services. The U.S. Attorney
General heads this department, which has separate
divisions for prosecuting cases under federal antitrust
laws, tax laws, environmental laws, and criminal laws.
The department also has a civil division that represents
the U.S. government in cases involving tort claims and
commercial litigation. -Abbr. DOJ. [Cases: Attorney
General C:=>2.J
Department of Labor. The cabinet-level department of
the federal government responsible for promoting the
welfare of wage earners and for improving working con
ditions and opportun |
of
the federal government responsible for promoting the
welfare of wage earners and for improving working con
ditions and opportunities for profitable employment.
Headed by the Secretary of Labor, it was created in
1913.29 USCA 551. -Abbr. DOL. [Cases: Labor and
Employment (',::;:>62.]
department of public welfare. A state-government
agency that administers public-assistance programs
of all types, such as food stamps and hOUSing vouchers.
In many communities, this department is now called
the Department of Human Services or Department
of Social Services. Abbr. DPW. [Cases: Labor and
Employment (>;)62.]
Department ofSocial Services. See CHILD PROTECTIVE
SERVICES. -Abbr. DSS.
Department of State. The cabinet-level department of
the federal government responsible for advising the
President in formulating and executing foreign policy.
Headed by the Secretary of State, the Department
negotiates treaties and other agreements with foreign
nations; speaks for the United States before the United
Nations and other international organizations; and rep
resents the United States at international conferences.
Itwas established in 1789 as the Department of Foreign
Affairs and was renamed the Department ofState later
the same year. 22 USCA 2651-2728. Foreign affairs
are handled through six bureaus: African Affairs,
European Affairs, East Asian and Pacific Affairs,
Near East Affairs, South Asian Affairs, and Western
Hemisphere Affairs. Also termed State Department.
(Cases: United States
Department of the Interior. The cabinet-level depart
ment of the federal government responsible for
managing the nation's public lands and minerals,
national parks, national wildlife refuges, and western
water resources, and for upholding federal trust respon
sibilities to Indian tribes. -The Department also has
responsibility for migratory-wildlife conservation;
historical preservation; endangered species; surface
mined-lands preservation and restoration; mapping; and geological, hydrological, and biological science. It
was created in 1849 and reorganized in 1950. Headed
by the Secretary of the Interior, it administers several
agencies, including the Bureau of Land Management,
the Bureau ofIndian Affairs, the U.S. Fish and Wildlife
Service, and the U.S. Geological Survey. -Also termed
Interior Department. [Cases: Public Lands C:=>94.]
Department ofthe Navy. See NAVY DEPARTMENT.
Department ofthe Treasury. The cabinet-level depart
ment of the federal government responsible for rec
ommending tax and fiscal policies, collecting taxes,
disbursing U.S. government funds, enforcing tax laws,
and manufacturing coins and currency . Created by
Congress in 1789, it is headed by the Secretary of the
Treasury. Also termed Treasury Department. [Cases:
United States
Department of Transportation. The federal executive
division responsible for programs and policies concern
ing transportation . Through a series of specialized
al'\<;l1\".lI;;~, this department oversees aviation, highways,
railroads, mass transit, the U.S. merchant marine, and
other programs. -Abbr. DOT.
Department of Veterans Affairs. The cabinet-level
department of the federal government responsible for
operating programs that benefit veterans of military
service and their families. It is headed by the Sec
retary of Veterans Affairs. -Abbr. VA. -Formerly
termed Veterans Administration. [Cases: Armed
Services C:=> 102.]
departure, n. (I5c) 1. A deviation or divergence from a
standard rule, regulation, measurement, or course of
conduct <an impermissible departure from sentencing
guidelines>.
downward departure. (1982) In the federal sentencing
guidelines, a court's imposition of a sentence more
lenient than the standard guidelines propose, as when
the court concludes that a criminal's history is less
serious than it appears. [Cases: Sentencing and Pun
ishment C=>850.]
forbidden departure. (1996) An impermissible devia
tion from the federal sentencing guidelines based on
race, sex, national origin, creed, religion, or socio
economic status. [Cases: Sentencing and Punishment
C:=>804.J
lateral departure. (1993) In the federal sentencing
guidelines, a sentence allowing a defendant to avoid
incarceration through community or home confine
ment. -Also termed lateral sentencing. [Cases: Sen
tencing and Punishment C:=>800-B02.]
upward departure. (I982) In the federal sentencing
guidelines, a court's imposition ofa sentence harsher
than the standard guidelines propose, as when the
court concludes that a criminal's history did not take
into account additional offenses commUted the
prisoner. (Cases: Sentencing and Punishment
814.]
503
2. A variance between a pleading and a later pleading or
proof <the departure between the plaintiff's pleadings
and the actual evidence was significant>. 3. A party's
desertion of the ground (either legal or factual) taken
in the immediately preceding pleading and resort to
another ground <the defendant's departure from the
asserted alibi necessitated a guilty plea>. -depart,
vb.
departure in despite ofcourt. Hist. A failure ofa defen
dant (called a tenant) in a real action to appear on
demand. A tenant, having once appeared in a real
action, was considered to be constructively present
until again called. So if the tenant failed to appear
when demanded, the tenant was said to have departed
in despite (in contempt) ofcourt.
depefage (dep-;)-sahzh). [French "dismemberment"] A
court's application of different state laws to different
issues in a legal dispute; choice oflaw on an issue-by
issue basis.
depeculation (dee-pek-y;t-Iay-sh;m). Hist. Embezzlement
from the public treasury. Cf. PECULATION. -depecu
late, vb.
dependency. (16c) 1. A land or territory geographically
distinct from the country governing it, but belonging
to the country and governed by its laws . The Philip
pines was formerly a dependency of the United States.
Cf. COMMONWEALTH (2); TERRITORY (1). 2. A relation
ship between two persons or things whereby one is sus
tained by the other or relies on the other for support
or necessities.
dependency court. See COURT.
dependency exemption. See EXEMPTION.
dependency hearing. See shelter hearing under
HEARING.
dependent, n. (16c) 1. One who relies on another for
support; one not able to exist or sustain oneself without
the power or aid of someone else.
lawful dependent. (1908) 1. One who receives an
allowance or benefits from the public, such as social
security. [Cases: Social Security and Public Welfare
(;::::>4.10.] 2. One who qualifies to receive a benefit
from private funds as determined by the laws gov
erning the distribution.
legal dependent. (1909) A person who is dependent
according to the law; a person who derives principal
support from another and usu. may invoke laws to
enforce that support.
partial dependent. Workers' compensation. A person
whose partial reliance on an employee covered under
workers'-compensation law for support entitles him
or her to receive death benefits if the employee is
killed on the job. [Cases: Workers' Compensation
<:;=:>414,415.]
2. Tax. A person, such as a child or parent, for whom
a taxpayer may be able to claim a personal exemption
ifthe taxpayer provides more than half ofthe person's
support during the taxable year. Besides support, de plegiis acquietandis
other criteria must be met as welL IRC (26 USCA)
152.[Cases: Internal Revenue <:;=:>3294; Taxation
3519.] -dependent, adj.
dependent child. See CHILD.
dependent claim. See PATENT CLAIM.
dependent condition. See CONDITION {2}.
dependent contract. See CONTRACT.
dependent covenant. See COVENANT (1).
dependent coverage. See COVERAGE.
dependent intervening cause. A cause of an accident or
injury that occurs between the defendant's behavior
and the injurious result, but that does not change the
defendant's liability. See intervening cause under CAUSE
(1). [Cases: Criminal Law Negligence
dependent promise. See PROMISE.
dependent relative revocation. (1855) A common-law
doctrine that operates to undo an otherwise sufficient
revocation of a will when there is evidence that the tes
tator's revocation was conditional rather than absolute.
Typically, the doctrine applies when a testator has
phYSically revoked the will and believes that a new will
is valid, although this belief is mistaken. The doctrine
undoes only the revocation; it does not always accom
plish the testator's intent or validate an otherwise
invalid wilL -Also termed dependent-relative-revo
cation doctrine; conditional revocation; mistakenly
induced revocation; ineffective revocation; doctrine of
ineffective revocation. [Cases: Wills (;:=,167-195.]
dependent state. See nonsovereign state under STATE.
de perambulatione facienda (dee p<l-ram-by;t-Iay-shee
oh-nee fay-shee-en-d<l), n. [Law Latin "for making per
ambulation"] Hist. A writ ordering the sheriff to go with
12 knights of the county to settle a boundary dispute
by walking about to determine the proper boundary
between adjacent towns or lordships.
de placito (dee plas-;t-toh), n. [Law Latin] Of a plea .
These words were used in a declaration describing the
particular action being brought, as in de placito debit
("of a plea of debt").
de plagis et mahemio (dee play-jis et m;t-hee-mee-oh),
n. [Law Latin "of wounds and mayhem"] Hist. A type
of criminal appeal used in cases of wounding and
maiming.
de plano (dee play-noh). [Latin "from ground level"]
1. Roman law. Informally; in a summary manner. _
The praetor would administer justice de plano when
he stood on the same level with the parties instead of
sitting on an elevated bench. 2. His!. Clearly; mani
festly, as in de bigamis. See DE BIGAMIS. 3. Hist. By col
lusion. 4. Scots law. Forthwith.
de plegiis acquietandis (dee plee-jee-is ;>-kwl-<l-tan-dis),
n. [Law Latin "for acquitting or releasing pledges"] Hist.
A writ ordering repayment to a surety by a principal
who had failed to make a required payment that the
surety then had to cover.
504 depletable economic interest
depletable economic interest. A mineral-land interest
subject to depletion by the removal (by drilling or
mining) of the mineral that is the subject of the
interest.
depletion, n. (l7c) An emptying, exhausting, or wasting
of an asset, esp. of a finite natural resource such as
oil. -deplete, vb. -depletive, a~i.
depletion allowance. See ALLOWANCE (3).
depletion reserve. Accounting. A charge to income
reflecting the decrease in the value of a wasting asset,
such as an oil reserve.
depone (di-pohn), vb. Scots law. To testify. See DEPOSE.
de ponendo sigillum ad exceptionem (dee pa-nen-doh
si-jil-am ad ek-sep-shee-oh-nam), n. [Law Latin "for
putting a seal to an exception"] Hist. A writ directing
justices ofassize to preserve exceptions taken by a party
in a case.
deponent (di-poh-nant), n. (l6c) 1. One who testifies by
deposition. 2. A witness who gives written testimony
for later use in court; AFFIANT. -depone, vb.
depopulatio agrorum (dee-pop-yoo-Iay-shee-oh
a-gror-am), n. [Law Latin "depopulating the county"]
Hist. The crime of destroying or ravaging a country.
A person could not claim the benefit of clergy for
this crime.
depopulation. 1. A substantial reduction in population.
2. Hist. A species of waste by which the kingdom's pop
ulation was diminished. See DEPOPULATIO AGRORUM.
deportable, adj. (Of an alien) subject to removal from a
country after an illegal entry.
deportable alien. See ALIEN.
deportatio (dee-por-tay-shee-oh), n. [fr. Latin depor
tare "to carry away"] Roman law. Permanent exile of a
condemned criminal involving loss ofcitizenship and,
usu., forfeiture ofall property. Cf. RELEGATIO.
"Deportatio. Perpetual banishment ofa person condemned
for a crime. It was the severest form of banishment since
it included additional penalties. such as seizure of the
whole property. loss of Roman citizenship, confinement
to a definite place. Under the Principate it replaced the
former interdictio aqua et igni. The emperor could grant
the deportee full amnesty, which restored him to his former
rights (postliminium). Places of deportatiowere islands (in
insu/am) near the Italian shore or an oasis in the Libyan
desert." Adolf Berger, Encyclopedic Dictionary ofRoman
Law 432 (1953).
deportation (dee-por-tay-sh,m), n. The act or an instance
of removing a person to another country; esp., the
expulsion or transfer ofan alien from a country. [Cases:
Aliens, Immigration, and Citizenship (;::=>210-292.]
deport, vb.
depose (di-pohz), vb. (14c) l. To examine (a witness) in
a deposition <the defendant's attorney will depose the
plaintiff on Tuesday>. [Cases |
) in
a deposition <the defendant's attorney will depose the
plaintiff on Tuesday>. [Cases: Federal Civil Procedure
(>1311-1456; Pretrial Procedure ~~91-227.]2. To
testify; to bear witness <the affiant deposes and states
that he is at least 18 years old>. 3. To remove from office or from a position of power; dethrone <rebels sought
to depose the dictator>.
deposit, n. (17c) 1. The act of giving money or other
property to another who promises to preserve it or
to use it and return it in kind; esp., the act of placing
money in a bank for safety and convenience. [Cases:
Banks and Banking 119-155.] 2. The money or
property so given.
demand deposit. A bank deposit that the depositor
may withdraw at any time without prior notice to
the bank.
direct deposit. 1he payment of money by transferring
the payment directly into the payee's bank account,
usu. by electronic transfer.
frozen deposit. A bank deposit that cannot be with
drawn, as when the financial institution is insolvent
or an account is restricted.
general deposit. 1. A bank deposit of money that is
commingled with other depositors' money. 2. A bank
deposit that is to the depositor's credit, thus giving
the depositor a right to the money and creating a
debtor-creditor relationship between the bank and
the depositor . A bank is not required to return
the actual money deposited as a general deposit, as
it must with a special deposit; the bank need return
only an equivalent sum. [Cases: Banks and Banking
(>75-80,119.]
special deposit. A bank deposit that is made for a
specific purpose, that is kept separately, and that is
to be returned to the depositor . The bank serves
as a bailee or trustee for a special deposit. -Also
termed deposit. [Cases: Banks and Banking
time deposit. A bank deposit that is to remain for a
specified period or for which notice must be given
to the bank before withdrawal. Also termed term
deposit.
3. Money placed with a person as earnest money or
security for the performance of a contract. The money
will be forfeited if the depositor fails to perform.
Also termed security deposit. 4. Copyright. The placing
of two copies of a published work with the Library of
Congress within three months of publication . This
requirement is independent of copyright registration.
[Cases: Copyrights and Intellectual Property C='50.1O.]
5. Civil law. A contract by which a depositor delivers a
thing to a depositary for safekeeping. La. Civ. Code arts.
2926, 2929 . A deposit may be either an onerous or a
gratuitous contract. -Also termed depositum; naked
deposit; gratuitous deposit. See gratuitous bailment
under BAILMENT. [Cases: Bailment
involuntary deposit. A deposit made by accidentally
leaving or placing personal property in another's pos
session. See involuntary bailment under BAILMENT.
necessary deposit. A bailment, usu. made by reason
of emergency or other necessity, that prevents the
depositor from freely choosing the depositary . A
505
necessary deposit occurs, for example, when a person
entrusts goods to a stranger during a fire.
quasi-deposit. An involuntary deposit made when one
party lawfully possesses property merely by finding
it.
voluntary deposit. A deposit made by the mutual
consent of the bailor and bailee.
6. Patents. The placing ofa sample of microorganisms
or cell lines with the U.S. Patent and Trademark Office
to satisfy the enablement requirement. -The practice is
not statutory but has been established by regulation and
caselaw. 37 CFR 1.801-809. -Also termed enable
ment by deposit. [Cases: Patents C::> 100.]
deposit account. See ACCOUNT.
depositary. (17c) 1. A person or institution that one
leaves money or valuables with for safekeeping <a
title-insurance officer is the depositary of the funds>.
-When a depositary is a company, it is often termed a
safe-deposit company. Cf. DEPOSITORY. [Cases: Deposits
and Escrows (;::.C:O I3 ; Warehousemen (;::.:>39.J 2. A gra
tuitous bailee. See DEPOSIT (5). [Cases: Bailment (;::.:>
2.]
depositary bank. See BANK.
deposit box. See SAFE-DEPOSIT BOX.
deposit company. See COMPANY.
deposit contract. See CONTRACT.
deposit in court. 1he placing of money or other property
that represents a person's potential liability in the
court's temporary custody, pending the outcome of a
lawsuit. Also termed deposit into the registry ofthe
court. [Cases: Deposits in Court
deposit insurance. See INSURANCE.
deposit into the registry of the court. See DEPOSIT IN
COURT.
. deposition (dep-a-zish-.m). (14c) 1. A witness's out-of
court testimony that is reduced to writing (usu. by a
court reporter) for later use in court or for discovery
purposes. See Fed. R. Civ. P. 30; Fed. R. Crim. P. 15.
Also termed examination before trial. [Cases: Criminal
Law ~-::>627.2; Federal Civil Procedure <:::=) 1311-1456;
Pretrial Procedure C-~91-206.12. The session at which
such testimony is recorded.
apex deposition. (1992) The deposition of a person
whose position is at the highest level of a company's
hierarchy. -Courts often preclude an apex deposi
tion unless (1) the person to be deposed has particular
knowledge regarding the claim, and (2) the request
ing party cannot obtain the requested and discov
erable information through less intrusive means.
[Cases: Federal Civil Procedure 1325; Pretrial
Procedure (;::.:> 1Ol.]
deposition de bene esse (dee bee-nee es-ee also day
ben-ayes-ay). (i8c) A deposition taken from a witness
who will likely be unable to attend a scheduled trial
or hearing. -Ifthe witness is not available to attend
trial, the testimony is read at trial as if the witness depository institution
were present in court. See testimony de bene esse
under TESTIMONY. [Cases: Federal Civil Procedure
(;::.:> 1291-1299, 1311-1456; Pretrial Procedure
61-65.J
deposition on written questions. (1970) A deposition
given in response to a prepared set of written ques
tions, as opposed to a typical oral deposition. See Fed.
R. Civ. P. 31. Formerly also termed deposition on
written interrogatories. [Cases: Federal Civil Proce
dure 1369; Pretrial Procedure
"The advantage of a deposition on written questions is
that counsel for the parties need not go to some distant
place to be present at the taking of the deposition. Instead
they serve on each other questions and cross questions ~
and even redirect and recross questions that they wish
to have put to the deponent. These are then sent to the
officer who is to take the deposition. The officer puts the
questions to the witness, records the answers, and tran
scribes and files the deposition as with an oral deposition.
The officer is merely to record what the witness says in
response to the various questions propounded to him or
her." Charles Alan Wright, The Law ofFederal Courts 85,
at 618-19 (5th ed. 1994).
oral deposition. (1910) A deposition given in response
to oral questioning by a lawyer. [Cases: Federal Civil
Procedure 1381; Pretrial Procedure
30(b)(6) deposition. (1979) Under the Federal Rules of
Civil Procedure, the deposition of an organization,
through the organization's designated representa
tive. _ Under Rule 30(b)(6), a party may take the
deposition of an organization, such as a corporation.
The notice of deposition (or subpoena) may name
the organization and may specify the matters to be
covered in the deposition. The organization must then
deSignate a person to testify about those matters on its
behalf. Fed. R. Civ. P. 30(b)(6). Most states authorize a
similar procedure under state-court procedural rules.
[Cases: Federal Civil Procedure (;::.:> 1325.J
3. 1he written record of a witness's out-of-court testi
mony. 4. Eccles. law. The involuntary release of a clergy
man from the exercise of his office. Cf. DEGRADATION
(1); DEPRIVATION (4).
deposition on written interrogatories. See deposition
on written questions under DEPOSITION.
deposition SUbpoena. See SUBPOENA.
deposition subpoena duces tecum. See subpoena duces
tecum under SUBPOENA.
deposit of title deeds. A pledge of real property as
security for a loan, by placing with the lender, as
pledgee, the title-deed to the land.
depositor, n. One who makes a deposit. See DEPOSIT.
depository (di-poz-d-tor-ee), n. (17c) A place where one
leaves money or valuables for safekeeping <the grade
school's depository for used books>. Cf. DEPOSITARY.
depository bond. See BOND (2).
depository institution. 1. An organization formed
under state or federal law, authorized by law to
receive deposits, and supervised and examined by a
government agency for the protection of depositors.
506 depository-transfer check
[Cases: Banks and Banking 232-235, 505.]
2. A trust company or other institution authorized
by law to exercise fiduciary powers similar to those
of a national bank. -The term does not include an
insurance company, a Morris Plan bank, an industrial
loan company, or similar bank unless its deposits are
insured by a federal agency. [Cases: Banks and Banking
depository-transfer check. See CHECK.
Depository Trust Corporation. The principal central
clearing agency for securities transactions on the public
markets. Abbr. DTC.
deposit premium. The initial premium paid by an
insured pending the final premium adjustment.
deposit ratio. The ratio oftotal deposits to total capital.
deposit slip. A bank's written acknowledgment of an
amount received on a certain date from a depositor.
[Cases: Banks and Banking ~ 121.1
depositum (di-poz-i-tam), n. Roman law. The gratuitous
deposit of goods for the benefit ofthe depositor. The
depositee was liable only for dolus. See DOLUS. Cf. gra
tuitous bailment under BAILMENT; DEPOSIT (5).
deposit warrant. See WARRANT (2).
de post disseisina (dee pohst dis-see-zin-a), n. [Law Latin
"of past disseisin"] Hist. A writ for recovery ofland by
a person who had previously recovered the land from
a disseisor by a praecipe quod reddat or on a default
or reddition, but who was again disseised by the same
disseisor.
de praerogativa regis (dee pri-rog-a-tI-va ree-jis). See
PRAEROGATIVA REGIS.
de praesenti (dee pri-zen-tI). [Law Latin] Hist. At
present; of the present. - A consent to marriage de
praesenti constitutes marriage in itself. -Also spelled
de presenti. Cf. DE FUTURO.
depraved, adj. (14c) 1. (Of a person or crime) corrupt;
perverted. 2. (Of a crime) heinous; morally horren
dous. depravity, n.
depraved-heart murder. See MURDER.
depraved-indifference murder. See depraved-heart
murder under MURDER.
depredable life. See USEFUL LIFE.
depredation (di-pree-shee-ay-shan), n. (1862) A decline
in an asset's value because of use, wear, obsolescence, or
age. Cf. APPRECIATION; AMORTIZATION (2). -depreci
ate, vb. depreciable, adj.
accelerated depreciation. Depreciation recorded using
a method that writes off the cost of an asset more
rapidly than the straight-line method.
accumulated depreciation. (1916) The total deprecia
tion currently recorded on an asset. On the balance
sheet, an asset's total cost less accumulated deprecia
tion reflects the asset's book value. -Also termed
accrued depreciation. annual depreciation. (1862) The yearly decrease in a
property's value due to regular wear and tear.
economic depreciation. A reduction in the value of
an asset due to a shortening of the asset's economic
life.
functional depreciation. (1910) Depreciation that
results from the replacement of equipment that is
not yet worn out but that is obsolete in light of new
technology or improved methodology allowing more
efficient and satisfactory production.
depredation method. (1915) A set formula used in
estimating an asset's use, wear, or obsolescence over
the asset's useful life or some portion thereof . This
method is useful in calculating the allowable annual
tax deduction for depreciation. See USEFUL LIFE. [Cases;
Internal Revenue C:=3470-3505; Taxation ~3516.]
accelerated depreciation method. (1964) A depre
ciation method that yields larger deductions in the
earlier years of an asset's life and smaller deductions
in the later years.
annuity depreciation method. A depreciation method |
an asset's life and smaller deductions
in the later years.
annuity depreciation method. A depreciation method
that allows for a return of imputed interest on the
undepreciated balance of an asset's value. _ The
imputed interest is subtracted from the current depre
ciation amount before it is credited to the accumu
lated depreciation accounts.
declining-balance depreciation method. (1947) A
method of computing the annual depreciation
allowance by multiplying the asset's undepreciated
cost each year by a uniform rate that may not exceed
double the straight-line rate or 150 percent.
double-declining depreciation method. (1996) A depre
ciation method that spreads over time the initial cost
of a capital asset by deducting in each period twice
the percentage recognized by the straight-line method
and applying that double percentage to the undepreci
ated balance existing at the start of each period.
replacement-cost depreciation method. A deprecia
tion method that fixes an asset's value by the price
of its substitute.
sinking-fund depreciation method. A depreciation
method that accounts for the time value ofmoney by
setting up a depreciation-reserve account that earns
interest, resulting in a gradual yearly increase in the
depreciation deduction.
straight-line depreciation method. (1930) A depre
ciation method that writes off the cost or other basis
of the asset by deducting the expected salvage value
from the initial cost ofthe capital asset, and dividing
the difference by the asset's estimated useful life.
sum-of-the-years'-digits depreciation method. A
method of calculating the annual depreciation
allowance by multiplying the depreciable cost basis
(cost minus salvage value) by a constantly decreas
ing fraction, which is represented by the remain
ing years of useful life at the beginning of each year
divided by the total number of years of useful life at
the time of acquisition. Sometimes shortened to
SYDmethod.
unit depreciation method. A depreciation method
directly related to the productivity of the asset -that
divides the asset's value by the estimated total number
of units to be produced, and then multiplies the unit
cost by the number ofunits sold during the year, rep
resenting the depreciation expense for the year.
units-oj-output depreciation method. A method by
which the cost of a depreciable asset, minus salvage
value, is allocated to the accounting periods benefited
based on output (as miles, hours, number of times
used, an'd the like).
depreciation reserve. An account built up to offset the
depreciation of property because of time and use, so
that at the end ofthe property's service there is enough
money to replace the property. lCases: Electricity C=o
11.3(3); Gas C'=' 14.4(9); Public Utilities 127.]
depredation. (ISc) The act ofplundering; pillaging.
de presenti. See DE PRAESENTI.
depression. (I8c) A period of economic stress that
persists over an extended period, accompanied by
poor business conditions and high unemployment.
Cf. RECESSION.
deprivation. (15c) 1. An act oftaking away <deprivation
of property>. 2. A withholding of something <depriva
tion offood>. 3. The state ofbeing without something;
wanting <sleep deprivation>. 4. A removal or degrada
tion from office, esp. an ecclesiastical office <depriva
tion ofthe bishop>. Cf. DEPOSITION (4); DEGRADATION
(1).
deprived child. See CHILD.
Deprizio doctrine. (1990) Bankruptcy. The rule that a
debtor's payment to an outside creditor more than 90
days before a bankruptcy filing is voidable as a prefer
ential transfer if the payment also benefits an inside
creditor. Levit v, Ingersoll Rand Fin. Corp. (In re v.N.
Deprizio Constr. Co.), 874 F.2d 1186 (7th Cir. 1989).
[Cases: Bankruptcy (::::)2608(2).]
de procedendo ad judicium (dee proh-s~-den-doh ad
joo-dish-ee-~m), n. [Law Latin "for proceeding in an
assise"] Hist. A chancery writ ordering a lower court to
proceed to judgment in a case that had been wrongfully
stayed. -Ifthe lower-court justices refused, they could
be punished for contempt.
de proprietate probanda (dee pr~-prI-<l-tay-tee pr~
ban-d<l), n. [Law Latin "for proving property"] Hist. A
writ ordering a sheriff to investigate the ownership of
distrained goods claimed by a defendant in a replevin
action.
"If therefore the distreinor claims any such property,
the party replevying must sue out a writ de proprietate
probanda, in which the sheriff is to try, by an inquest,
in whom the property previous to the distress subsisted.
And if it be found to be in the distreinor, the sheriff can
proceed no farther: but must return the claim of property
to the court of king's bench or common pleas, to be there
farther prosecuted, if thought advisable, and there finally determined." 3 William Blackstone, Commentaries on the
Laws of England 148 (1768).
depnblished opinion. See OPINION (I),
depute, n. Scots law. A person appointed to act in an
official capacity or as another official's representative.
deputy, n. (ISc) A person appointed or delegated to act
as a substitute for another, esp. for an official. [Cases:
Officers and Public Employees C=o47.] -deputize,
depute, vb.
courtroom deputy. The deputy clerk aSSigned to a
particular courtroom or a particular judge. [Cases:
Courts
general deputy. 1. A deputy appointed to act in another
officer's place and execute all ordinary functions of
the office. [Cases: Officers and Public Employees
47.] 2. See deputy sheriff under SHERIFF.
special deputy. A deputy specially appointed to serve a
particular purpose, such as keeping the peace during
a riot.
deputy sheriff. See SHERIFF.
DEQ. abbr. DELIVERED EX QUAY.
de quarantina habenda (dee kwahr-<ln-tI-m h<l-ben-d<l),
n. [Law Latin "of return of quarantine"] Hist. A writ
ordering a sheriff to give a widow possession of part
of her husband's estate, after she had been wrongfully
ejected but before dower is aSSigned. See QUARANTINE
(4).
de quo (dee kwoh). [Latin] Ofwhich. -These were formal
words used in a writ of entry, as in a writ of entry "in
the quo" or "in the quibus." Also termed de quibus.
deraign, n. Archaic. The process ofproving, vindicating,
or maintaining a legal right. -Historically, a deraign
commonly took the form of a duel or trial by combat.
Also termed deraignment.
deraign, vb. Archaic. 1. To prove, justify, vindicate, or
settle (a right or claim). 2. To dispute or contest. 3. Hist.
To settle (a dispute) by battle or duel.
deraignment. See DERAIGN, n.
de raptu virginum (dee rap-t[y]oo v3r-j<l-n<lm), n. [Latin
"of the ravishment of virgins"] Hist. A writ for taking
an appeal in a rape case.
de rationabilibus divisis (dee rash-<ln-<l-bil-i-b~s di-VI
sis), n. [Law Latin "of the fixing of reasonable bound
aries") Hist. A writ to settle the boundaries between
property owners of different towns when one owner
claimed a trespass by the other.
de rationabili parte bonorum (dee rash-[ee]-~-nay-b~-lI
pahr-tee bo:l-nor-<lm), n. [Law Latin "of reasonable share
of goods"] Hist. A writ allowing the wife and children
of a dead man to recover a reasonable share of his goods
from his executors after his debts were paid. _ This writ
was usu. founded on custom rather than the general
law.
de recenti (dee ri-sen-tr). [Law Latin] Scots law. Recently.
-1he term adds weight to a statement that is made or
508 de recorda etprocessu mittendis
an event (such as an arrest) that occurs soon after an
incident. In a theft case, for example, the presumption
of guilt was greater when the suspect was identified
soon after the theft occurred.
de recorda etprocessu mittendis (dee ri-kor-doh et proh
ses-[y]oo mi-ten-dis), n. [Law Latin "ofthe sending of
the record and process ofa cause to a superior court"]
A type ofwrit oferror.
derecho de autor. See AUTHOR'S RIGHT.
de recto (dee rek-toh), n. [Law Latin] A writ of right
to recover both the seisin and the property. -Also
termed breve de recto. See WRIT OF COURSE.
de recto de advocatione (dee rek-toh dee ad-va-kay-shee
oh-nee), n. [Law Latin "of the right ofadvowson"] Hist.
A writ restoring a person's right to present a clerk to a
benefice when that right had been interfered with . It
was abolished by St. 3 & 4 Will. 4, ch. 27.
de recto de rationabili parte (dee rek-toh dee rash-[ee]
a-nay-ba-h pahr-tee), n. [Law Latin "of right of rea
sonable part"] Hist. A writ allowing one coparcener
or blood relative owning land in fee simple to obtain a
rightful share from the other. It was abolished by St.
3 & 4 Will. 4, ch. 27.
de rectopatens (dee rek-toh pay-tenz), n. [Law Latin "of
right patent"] Hist. The highest writ ofright under the
law given to an owner in tee simple to recover the pos
session and use ofland from the freehold tenant.
Also termed breve magnum de recto.
de redisseisina (dee ree-dis-see-zin-a), n. [Law Latin "of
redisseisin"] Hist. Awrit for recovery ofland or rent by
a person who had previously recovered the land or rent
by an assize ofnovel disseisin, but who was again dis
seised bv the same disseisor. 'Ibis writ is similar to de
post dis;eisina. See DE POST DISSEISINA; DISSEISIN.
deregistration, n. The point at which an issuer's registra
tion under section 12 ofthe Securities Exchange Act of
1934 is no longer required because of a decline in the
number of holders of the issuer's securities. 15 USCA
781. Deregistration is triggered when the number of
holders falls below a certain number or when required
by an administrative order. Cf. DELISTING. [Cases:
Securities Regulation 035.22.] deregister, vb.
deregulation, n. (1963) The reduction or elimination of
governmental control ofbusiness, esp. to permit free
markets and competition. deregulate, vb.
financial deregulation. The lessening ofgovernmental
oversight and intervention in the business of finan
cial institutions . Among other effects, regulation
of financial contracts is relaxed and competition for
depositors and borrowers increases.
deregulation clause. Oil & gas. A gas-contract provi
sion specifying how the price ofgas will be calculated
and what the buyer's and seller's obligations will be if
regulated natural gas becomes deregulated.
de rei gestae veritate (dee ree-I jes-tee ver-i-tay-tee).
[Law Latin] Scots law. Ofthe truth ofthe thing done.
A witness to a deed that had been lost could testify to the deed's existence and to the truthfulness of the
statements contained in it.
derelict (der-a-likt), adj. (17c) 1. Forsaken; abandoned;
cast away <derelict property>. See quasi-derelict under
DERELICT. 2. Lacking a sense ofduty; in breach ofa
legal or moral obligation <the managers were derelict
in their duties>. 3. Dilapidated; run-down.
derelict, n. (17c) 1. Personal property abandoned or
thrown away by the owner with no intent to claim it any
longer, such as a ship deserted at sea. [Cases: Salvage
04.]
quasi-derelict. A ship that has been deserted or aban
doned temporarily or involuntarily, as when the crew
is dead or otherwise incapable ofnavigating the ship.
[Cases; Salvage 04.]
2. Land uncovered by water receding from its former
bed. [Cases: Navigable Waters C~c:44; Waters and Water
Courses ('=93.] 3. A street person or vagrant; a hobo.
dereliction (der-<l-lik-shan), n. (16c) 1. The forsaking of
a legal or moral obligation with no intent to reassume
it; abandonment <dereliction ofduty>.
dereliction in the performance ofduties. Military
law. Willful or negligent failure to perform assigned
duties; culpable inefficiency in performing assigned
duties. [Cases: Military Justice 0687.]
2. An increase ofland caused by the receding ofa sea,
river, or stream from its usual watermark. See RELIC
TION. [Cases: Navigable Waters 044; Waters and
Water Courses C=-~93.]
derelict-official act. A statute that mandates forfeiture
ofoffice ifthe holder willfully neglects or fraudulently
fails to perform official duties. [Cases; Officers and
Public Employees
de reparatione facienda (dee rep-<l-ray-shee-oh-nee
shee-en-d<l). |
e facienda (dee rep-<l-ray-shee-oh-nee
shee-en-d<l). Hist. 1. An action brought by a joint tenant
to compel a cotenant to contribute to the repair of
jointly held property. 2. A writ issued in such an action.
The writ had to issue before repairs were undertaken.
There was no remedy after repairs began.
de replegiore de averiis. See DE AVERIIS REPLEGIANDIS.
de rescussu (dee ri-sk;ls-[y]oo), n. [Law Latin "of rescue"]
Hist. A writ available when cattle were distrained or
persons were arrested, and then rescued.
de retorno habendo (dee ri-tor-noh ha-ben-doh). [Law
Latin] for having a return. This term applied to (1)
a judgment for a defendant in a replevin action, (2) a
writ ofexecution for a detendant awarded judgment in
a replevin action, and (3) a surety provided by a plaintiff
at the beginning ofa replevin action.
d.e.r.i.c. abbr. DE EA RE ITA CENSUERE.
de rien culpable (da reen k;ll-pa-bal). [Law French]
Guilty ofnothing; not guilty.
derivation clause. A deed-of-trust provision that
provides information about the transfer ofa property,
esp. the source of the title, such as the name of the
previous grantor and the recording date ofthe deed.
See deed oftrust under DEED.
derivative, adj. Copyright. Of, relating to, or constitut
ing a work that is taken from, translated from, adapted
from, or in some way further develops a previous work.
Copyright protection includes the exclusive right in
derivative works, such as a screenplay adapted from a
book, or a variant musical arrangement. [Cases: Copy
rights and Intellectual Property C=> 12(3).]
derivative, n. 1. A financial instrument whose value
depends on or is derived from the performance ofa sec
ondary source such as an underlying bond, currency,
or commddity. -Also termed derivative instrument;
derivative security.
"Derivatives transactions may be based on the value of
foreign currency, U.S. Treasury bonds, stock indexes, or
interest rates. The values of these underlying financial
instruments are determined by market forces, such as
movements in interest rates. Within the broad panoply of
derivatives transactions are numerous innovative finan
cial instruments whose objectives may include a hedge
against market risks, management of assets and liabilities,
or lowering of funding costs; derivatives may also be used
as speculation for profit." Procter & Gamble Co. v. Bankers
Trust Co., [1996-1997 Transfer Binder] Fed. Sec. L. Rep.
(CCH) ~ 99,229, at 95,238 (S.D. Ohio 1996).
2. See derivative work under WORK (2).
derivative acquisition. See ACQUISITION.
derivative action. (18c) 1. A suit by a beneficiary of a
fiduciary to enforce a right belonging to the fiduciary;
esp., a suit asserted by a shareholder on the corpora
tion's behalf against a third party (usu. a corporate
officer) because of the corporation's failure to take
some action against the third party. See Fed. R. Civ.
P. 23.1. -Also termed derivative suit; shareholder
derivative suit; stockholder derivative suit; representa
tive action. Cf. DIRECT ACTION (3). [Cases: Corpora
tions C=>207.5.] 2. A lawsuit arising from an injury to
another person, such as a husband's action for loss of
consortium arising from an injury to his wife caused
by a third person.
derivative contraband. See CONTRABAND.
derivative conveyance. See secondary conveyance under
CONVEYANCE.
derivative deed. See secondary conveyance under CON
VEYANCE.
derivative defense. See DEFENSE (1).
derivative entrapment. See ENTRAPMENT.
derivative estate. See ESTATE (1).
derivative evidence. See EVIDENCE.
derivative instrument. See DERIVATIVE (1).
derivative-jurisdiction doctrine. (1964) The principle
that a case is not properly removable unless it is within
the subject-matter jurisdiction ofthe state court from
which it is removed.
derivative lease. See SUBLEASE.
derivative liability. See LIABILITY. derivative market. See MARKET.
derivative possession. See POSSESSION.
derivative power. See POWER (3).
derivative security. See DERIVATIVE (1).
derivative settlement. See SETTLEMENT (2).
derivative suit. See DERIVATIVE ACTION (1).
derivative title. See TITLE (2).
derivative-use immunity. See use immunity under
IMMUNITY (3).
derivative work. See WORK (2).
derived demand. See DEMAND (4).
derogation (der-;l-gay-sh;m), n. (15c) 1. The partial repeal
or abrogation ofa law by a later act that limits its scope
or impairs its utility and force <statutes in derogation
of the common law>. [Cases: Statutes C=>237, 239.] 2.
Disparagement; depreciation in value or estimation
<some argue that the derogation of family values has
caused an increase in crime>. 3. Detraction, prejudice,
or destruction (of a grant or right) <an attorney may
be punished for derogation from professional integ
rity>. -derogate (der-;l-gayt), vb.
derogation clause. Int'llaw. A reservation in a treaty
allowing a signator to refuse to comply with certain
provisions. For example, a signator may be allowed
to suspend some or all of its treaty obligations during
a war or other national emergency. Ifa treaty lacks an
express derogation clause, then general principles gov
erning suspension or termination oftreaties govern.
derogation from grant. A provision in an instrument
oftransfer (such as a deed) that diminishes, avoids, or
otherwise limits the grant itself.
derogatory clause. (16c) 1. A statutory or contractual
provision proclaiming that the document in which it
appears, or a part ofthe document, cannot be repealed
or amended. Such provisions are considered ineffec
tive.
'The one thing a sovereign legislature cannot do is truncate
its own sovereignty by restricting its successors. A parlia
ment sovereign today must also be sovereign tomorrow.
What is technically called a clausula derogatoria is there
fore ineffective: non impedit clausula derogatoria quo
minus ab eadem potestate res dissolvantur a qua constitu
untur (a derogatory clause does not prevent things from
being dissolved by the same power which created them)."
F.A.R. Bennion, Statutory Interpretation 140, at 313 (3d
ed.1997).
2. A clause that a testator inserts secretly in a will, con
taining a provision that any later will not having that
precise clause is invalid. A derogatory clause seeks to
protect against a later will extorted by undue influence,
duress, or violence. -Also termed clausula derogativa;
clausula derogatoria.
DES. abbr. DELIVERED EX SHIP.
de salva gardia (dee sal-v;l gahr-dee-;l), n. [Law Latin
"of safeguard"] A writ issued to protect strangers from
harm while pursuing their legal rights in England.
de salvo conductu (dee sal-voh kdn-dak-t[y]oo). [Law
Latin "of safe conduct"] A writ of safe conduct.
de sa vie (dd sa vee). [Law French) Of one's own life, as
distinguished from pur autre vie ("for another's life").
descend, vb. To pass (a decedent's property) by intestate
succession.
descendant (di-sen-ddnt), rl. (17c) One who follows in
the bloodline of an ancestor, either lineally or collater
ally. Examples are children and grandchildren. Cf.
ASCENDANT. [Cases: Descent and Distribution
25.] -descendant, adj.
collater,!l descendant. Loosely, a blood relative who is
not strictly a descendant, such as a niece or nephew.
[Cases: Descent and Distribution
lineal descendant. A blood relative in the direct line of
descent. Children, grandchildren, and great-grand
children are lineal descendants. [Cases: Descent and
Distribution (;:=>25.]
descendibility offuture interests. (1936) The legal pos
sibility that a future interest (such as a remainder or an
executory interest) can legally pass by inheritance.
descendible, adj. (15e) (Of property) capable of passing
by descent or being inherited. See HERITABLE.
descent, n. (15c) 1. The acquisition of real property by
law, as by inheritance; the passing of intestate real
property to heirs. See SUCCESSION (2). Cf. DISTRIBU
TION (1); PURCHASE (2). [Cases: Descent and Distribu
tion (;:=>1-19.)2. The fact or process of originating from
a common ancestor. Cf. ASCENT. descend, vb.
collateral descent. Descent in a collateral or oblique
line, from brother to brother or cousin to cousin.
With collateral descent, the donor and donee are
related through a common ancestor. Cf. collateral
descendant under DESCENDANT. [Cases: Descent and
Distribution
direct-line descent. See lineal descent.
immediate descent. 1. A descent directly to an heir, as
from a grandmother to granddaughter, brought about
by the earlier death of the mother. [Cases: Descent
and Distribution 2. A direct descent without
an intervening link in consanguinity, as from mother
to daughter.
lineal descent. Descent in a direct or straight line, as
from father or grandfather to son or grandson.
Also termed direct-line descent. [Cases: Descent and
Distribution (;:=>25.]
maternal-line descent. Descent between two persons,
traced through the mother of the younger.
mediate descent. 1. A descent not occurring immedi
ately, as when a granddaughter receives land from her
grandmother, which first passed to the mother. 2. A
direct descent occurring through a link in consan
guinity, as when a granddaughter receives land from
her grandfather directly.
"The law categorizes descents as either lineal or collat
eral, and as mediate or immediate. The term mediate or
immediate descent may denote eIther the passing of the estate, or the relationship between the intestate and the
heir. The classification of descents as mediate or immedi
ate describes the proximity of the descent, while the char
acterization as lineal or collateral refers to the direction
of the descent." 23 Am. Jur. 2d, Descent and Distribution
49, at 787-88 (1983).
paternal-line descent. Descent between two persons,
traced through the father ofthe younger.
descent and distribution. 1. See intestate succession
under SUCCESSION (2). 2. Broadly, the rules by which a
decedent's property is passed, whether by intestate suc
cession or by will. See DISTRIBUTION. [Cases: Descent
and Distribution
descent cast. Hist. The devolution ofrealty that has been
acquired by disseisin, abatement, or intrusion, upon an
heir whose ancestor died intestate . This tolled the real
owner's right of entry until the owner brought a legal
action. Also termed descent that tolls entry.
description. (14c) 1. A delineation or explanation of
something by an account setting forth the subject's
characteristics or qualities <description of a patent
able process>. 2. A representation by words or drawing
of something seen or heard or otherwise experienced
<description of the criminal> <description of the
accident>. 3. An enumeration or specific identifica
tion of something <description ofitems in the estate>.
4. LEGAL DESCRIPTION. 5. Patents. In a U.S. patent
application, the section that (1) comprehensively char
acterizes the invention in language that is clear and
complete enough to enable anyone of ordinary skill
in the relevant art to make and use the invention; (2)
explains the best mode for using the invention; and (3)
usu. includes an explanation of drawings that are part
of the application . Ihe detailed description typically
makes up the largest portion of the application's speci
fication. -Also termed (in sense 5) enabling disclosure;
written description. [Cases: Patents (;:=>99.]
descriptio personae (di-skrip-shee-oh pdr-sob-nee). [Law
Latin] Description of the person . This phrase, typi
cally used to identify or describe a person in a contract
or deed, is not essential to a document's validity. Cf.
DESIGNATIO PERSONAE.
descriptive comparative law. See COMPARATIVE LAW.
descriptive mark. See descriptive trademark under
TRADEMARK.
descriptive trademark. See TRADEMARK.
descriptive word. Trademarks. A term that portrays
a general characteristic or function of a product or
service. A descriptive word may not be registered as
a trademark unless it has acquired secondary meaning
in the minds of consumers such that it is directly asso
ciated with one brand. [Cases: Trademarks (;:=> 1035.)
"A trader cannot appropriate to his exclusive use words or
symbols which (in the application he is to make of them)
are public property. The right of all to use descriptive
words in their ordinary and usual meaning must not be
restricted. No sign or form of words may be appropriated
as a trade-mark, for use in its primary meaning, which.
from the nature of the fact conveyed by that primary
meaning, others may employ with equal truth, and with
511
equal right, for the same purpose." Harry D. Nims, The Law
ofUnfair Competition and Trade-Marks 524 (1929).
de scutagio habendo (dee skyoo- |
Competition and Trade-Marks 524 (1929).
de scutagio habendo (dee skyoo-tay-jee-oh ha-ben
doh), n. [Law Latin "for having scutage"] Hist. I. A writ
ordering a tenant-in-chiefby knight's service to serve
in a war, send a substitute, or pay a sum of money. 2.
A writ authorizing a lord who had served in the war or
paid the required fine, to recover the scutage from his
knights' fees. See SCUTAGE.
"Such a baron, having proved that he fulfilled his contract
or paid his fine, will have a royal writ de scutagio habendo,
whereby the sheriff will be ordered to cause him to have
the scutage due from his tenants. Still, before he can get
his scutage, he has to obtain something that the king is
apt to treat as a favour." 1 Frederick Pollock & Frederic W.
Maitland, The Historv of English Law Before the Time of
Edward 1270 (2d ed. 1898).
desecrate, vb. (17c) To divest (a thing) of its sacred char
acter; to defile or profane (a sacred thing).
de secta ad molendinum (dee sek-ta ad ma-Ien-di-nam),
n. [Law Latin "of suit at mill"] Hist. A writ forcing a
person to continue grinding corn at a particular mill,
as was customary, or to give a good reason why the
custom should not be continued.
"There are also other services, due by ancient custom and
prescription only. Such is that of doing suit to another's
mill: where the persons, resident in a particular place, by
usage time out of mind have been accustomed to grind
their corn at a certain mill; and afterwards any of them
go to another mill, and Withdraw their suit. . from the
ancient mill. This is not only a damage, but an injury, to the
owner .... And for this injury the owner shall have a writ
de secta ad molendinum commanding the defendant to do
his suit at that mill ... or show good cause to the contrary:
in which action the validity of the prescription may be tried,
and if it be found for the owner, he shall recover damages
against the defendant." 3 William Blackstone, Commentar
ies on the Laws ofEngland 234~3S (1768).
de secUs non faciendis (dee sek-tis non fay-shee-en
dis), 11. [Law Latin "of not doing services"] Hist. A writ
exempting a ward or dowress from performing certain
services.
desegregation, n. (1951) 1. The abrogation of policies that
separate people of different races into different insti
tutions and facilities (such as public schools). [Cases:
Schools 2. The state of having had such policies
abrogated. Cf. INTEGRATION (4). -desegregate, vb.
de seisin a habenda (dee see-zin-a ha-ben-da), n. [Law
Latin "of holding seisin"] Hist. A writ ordering the
sovereign to deliver seisin oflands and tenements to a
lord, after holding them for the allowed year and a day
because the lord's tenant committed a felony.
deserter. Int'llaw. A member of the armed forces who
leaves national military service with the intention of
reneging on military obligations either permanently
or for the duration of a military operation; a member
of the armed forces who illegally abandons a military
force, often by seeking refuge in a foreign territory or
by joining enemy forces. [Cases: Armed Services (;..-::
38; Military Justice C=>661.]
desertion, n. (l6c) The willful and unjustified abandon
ment of a person's duties or obligations, esp. to military designating petition
service or to a spouse or family . In family law, the
five elements of spousal desertion are (1) a cessation
ofcohabitation, (2) the lapse of a statutory period, (3)
an intention to abandon, (4) a lack ofconsent from the
abandoned spouse, and (5) a lack of spousal misconduct
that might justify the abandonment. Also termed
gross neglect ofduty. Cf. ABANDONMENT. [Cases: Armed
Services C=> 38; Divorce Military Justice
661.]-desert, vb.
constructive desertion. (1894) One spouse's misconduct
that forces the other spouse to leave the marital abode.
The actions of the offending spouse must be serious
enough that the spouse who is forced from the home
finds the continuation of the marriage to be unen
durable or dangerous to his or her safety and well
being, and finds it necessary to seek safety outside the
marital domicile. Also termed constructive aban
donment. [Cases: Divorce 37(22).]
criminal desertion. (l8c) One spouse's willful failure
without just cause to provide for the care, protection,
or support of the other spouse who is in ill health or
needy circumstances. [Cases: Husband and Wife (;:::J
302,304.]
obstinate desertion. Desertion by a spouse who persis
tently refuses to return to the marital home, so that
the other spouse has grounds for divorce . Before the
advent of no-fault divorce, this term was commonly
used in divorce statutes. The term was often part of
the longer phrase willful, continued, and obstinate
desertion. lCases: Divorce C=37(15).]
willful, continued, and obstinate desertion. See obsti
nate desertion.
deserts. See JUST DESERTS.
design, n. (l6c) 1. A plan or scheme. 2. Purpose or inten
tion combined with a plan.
formed design. Criminal law. The deliberate and fixed
intention to kill, though not necessarily a particular
person. See PREMEDITATION. [Cases: Homicide
535.]
3. The pattern or configuration of elements in some
thing, such as a work of art. 4. Patents. The drawing
or the depiction ofan original plan for a novel pattern,
model, shape, or configuration that is chiefly decorative
or ornamental. Ifit meets other criteria, a design may
also be protect able as a trademark. -design, vb.
design around, vb. Patents. To make something that
performs the same function or has the same physical
properties as (a patented product or process) but in a
way different enough from the original that it does not
infringe the patent. Cf. DOCTRINE OF EQUIVALENTS.
[Cases: Patents
designate, n. See DESIGNEE.
designated public forum. See PUBLIC FORUM.
designating petition. A document used to designate a
candidate for a political-party nomination at a primary
election or for election to a party position. [Cases: Elec
tions (;:::J126(1).]
designatio personae (dez-dg-nay-shee-oh pdr-soh I despotism (des-pd-tiz-am). (ISc) 1. A government by a
nee). [Law Latin] Designation of the person by class or
category rather than by name, as "the children of A."
This phrase was used to specifically identify a person
in a contract or deed, often as a word oflimitation (e.g.,
"to my eldest son"). Cf. DESCRIPTIO PERSONAE.
design claim. See PATENT CLAIM.
design defect. See DEFECT.
design-defect exclusion. See EXCLUSION (3).
designedly, adv. (17c) Willfully; intentionally.
designee. A person who has been designated to perform
some duty or carry out some specific role. -Also
termed designate (dez-ig-ndt), n.
designer defense. See DEFENSE (1).
designer drug. See DRUG.
design patent. See PATENT (3).
design review. A process by which a building permit
is withheld until the proposed building meets the
architectural standards established by land-use reg
ulations. Also termed architectural review. [Cases:
Zoning and Planning ~431-446.]
design specification. See STATEMENT OF WORK.
design-specification contract. See build-to-print contract
under CONTRACT.
desist. To stop or leave off. See CEASE-AND-DESIST
ORDER.
desk audit. See AUDIT.
de solemnitate (dee sa-lem-ni-tay-tee). [Law Latin] Scots
law. As a solemnity . lhe phrase appeared in reference
to certain deed requirements essential to the deed's
validity. Cf. EX SOLEMNITATE.
de son tort(dd sawn [or son] tor[t]). [Law French "by his
own wrongdoing"] Wrongful.
executor de son tort. See EXECUTOR.
trustee de son tort. See TRUSTEE.
de son tort demesne (dd sawn tor[t] di-mayn). [Law
French] Of a person's own wrong. _ 'Ihis is the law
French equivalent of the Latin phrase de injuria. See
DE INJURIA.
desperate debt. See DEBT.
despitus (di-spH<ls or des-pi-tds). [Law Latin] 1.
Contempt. 2. A contemptible person.
despoil (di-spoil), vb. (l4c) To deprive (a person) ofpos
sessions illegally by violence or by clandestine means;
to rob. despoliation (di-spoh-lee-ay-shdn), despoil
ment, n.
desponsation (dee-spon-say-shdn). Archaic. The act of
betrothal; the act of contracting for marriage.
despot (deS-Pdt), n. 06c) 1. A ruler with absolute power
and authority. 2. A tyrant. despotic (di-spot-ik),
adj. ruler with absolute, unchecked power. 2. Total power
or controlling influence.
de statu defunctorum (dee stay-t[y]oo dee-fdngk
tor-am). [Law Latin) Scots law. Concerning the status
ofthe decedent. Ihe phrase was often used to refer to
questions about the decedent's legitimacy.
de statuto mercatorio (dee std-tyoo-toh mdr-b-tor
ee-oh), n. [Law Latin "of statute merchant"] Rist. A writ
ordering the imprisonment ofsomeone who forfeits a
statute-merchant bond until the debt has been paid. See
STATUTE MERCHANT.
de statuto stapulae (dee std-tyoo-toh stay-pya-Iee), n.
[Law Latin "of statute staple"] Rist. A writ to seize the
property ofand imprison aperson who forfeits a staple
statute bond. See STATUTE STAPLE.
destination. 1. The predetermined end of a course, as
ofa voyage or package. 2. The act ofappointment, esp.
in a will; a designation. 3. Scots law. The nomination
of heirs esp. in a certain order -by law or under
a will.
'The series of heirs called to the succession of heritable or
moveable property, either by the provision of the law or by
the will of the proprietor, is, generally speaking, termed
a destination; but the term is usually applied, in a more
limited sense, to a nomination of successors in a certain
order, regulated by the will of the proprietor." William Bell,
Bell's Dictionarv and Digest of the Law ofScotland 320
(George Watson ed., 7th ed. 1890).
4. Scots law. The line ofsuccessors so appointed.
destination bill oflading. See BILL OF LADING.
destination contract. See CO~TRACT.
destination du pere de famille (des-tee-nah-syawn doo
pair dd fa-mee). [French" destination of the father of
the family"] 1. Civil law. The legal standing of the owner
of two estates that would be subject to a servitude if
they were not owned by the same person . When the
two estates cease to be owned by the same owner, a
servitude comes into existence if (1) the servitude is
apparent from external signs, such as a roadway or a
pipeline, or (2) the common owner recorded a declara
tion establishing the destination. La. eiv. Code art. 741.
2. Rist. A property use that the owner has intention
ally established on one part of the property in favor of
another part.
destinatione (des-ti-nay-shee-oh-nee). [Law Latin) Rist.
By destination or appointment ofan heir. The phrase
appeared in reference to the process, made possible
through a destination clause, by which an heir was
appointed to a succession in a certain order. See DES
TINATION.
destitute (des-ti-t[y]oot), adj. (l4c) 1. Deprived; bereft.
2. Not possessing the necessaries oflife; lacking pos
sessions and resources; indigent.
destitutive fact. See divestitive fact under FACT.
destructibility, n. (lSc) The capability of being destroyed
by some action, turn of events, or operation oflaw.
destructible, adj.
513 de temps dont memorie ne court
destructibility of contingent remainders. (1918)
Property. 'The common-law doctrine requiring a future
interest to vest by the time it is to become possessory
or else be totally destroyed, the interest then reverting
to the grantor. -The doctrine could be avoided by the
use of trustees to preserve contingent remainders. This
doctrine has been abolished in all but a few American .
jurisdictions; the abolishing statutes are commonly
termed anti-destructibility statutes. Also termed
destructibility rule. [Cases: Remainders
'The destructibility rule still exists in its old common-law
form in Florida. Various authors have suggested that it also
exists unchanged in Arkansas, North Carolina, Oregon,
Pennsylliania, South Carolina, and Tennessee; but there
are no statutes or recent decisions to clarify the rule's
status in these states." Thomas F. Bergin & Paul G. Haskell,
Preface to Estates in Land and Future Interests 79 nA6 (2d
ed.1984).
destructible trust. See TRUST.
destruction. 1. 'llie act of destroying or demolishing;
the ruining of something. 2. Harm that substantially
|
. 1. 'llie act of destroying or demolishing;
the ruining of something. 2. Harm that substantially
detracts from the value of property, esp. personal
property. 3.1he state of having been destroyed.
desuetude (des-W<H[yJood). (I5c) 1. Lack of use; obso
lescence through disuse. 2. The doctrine holding that
if a statute or treaty is left unenforced long enough, the
courts will no longer regard it as having any legal effect
even though it has not been repealed. [Cases: Statutes
"[Tlhe doctrine of desuetude has had in all legal systems a
very limited and cautious application. For the anachronistic
statute a better remedy may be found through reinterpreta
tion in the light of new conditions; as Gray remarks with
some irony. 'It is not as speedy or as simple a process to
interpret a statute out of existence as to repeal it, but with
time and patient skill it can often be done.'" Lon L Fuller,
Anatomy ofthe Law 38 (1968) (quoting John Chipman Gray,
The Nature and Sources of Law 192 (1921 i).
"There is no doctrine of desuetude in English law, so a
statute never ceases to be in force merely because it is
obsolete. Normally there must be an express repeal,
but the whole or part of an enactment may be impliedly
repealed by a later statute." Rupert Cross, Statutory Inter
pretation 3 (1976).
de superoneratione pasturae (dee soo-pa-roh-na-ray
shee-oh-nee pas-tra-ree), n. [Law Latin "of surcharge
ofpasture"] Rist. A judicial writ against a person who
was initially brought into county court for putting too
many cattle on pasture, and later was impleaded in
the same court on the same charge, and the cause was
removed to the superior court at Westminster.
de tabulis exhibendis (dee tab-ya-lis ek-si-ben-dis).
[Latin] Roman law. Of producing the tablets of a will.
-This was a subject covered under Roman exhibitory
interdicts governing the production of documents.
A will of a deceased person had to be produced and
opened to determine whether the applicant had rights
under it.
detachiare (di-tak-ee-air-ee or di-tash-ee-air-ee), vb.
[Law Latin] Hist. To seize a person or property by a
writ of attachment or other legal remedy. detainee. A person held in custody, confined, or delayed
by an authority, such as law enforcement or a govern
ment.
ghost detainee. See secret detainee.
secret detainee. A person who is held, usu. without
being formally charged with a crime or facing any
other legal proceedings, in an undisclosed place, and
whose detention is unknown to anyone other than the
detaining authority. Also termed ghost detainee.
See secret detention under DETENTION.
detainer. (l7c) 1. The action of detaining, withholding,
or keeping something in one's custody.
forcible detainer, See FORCIBLE DETAINER.
unlawful detainer. (18c) The unjustifiable retention of
the possession of real property by one whose original
entry was lawful, as when a tenant holds over after
lease termination despite the landlord's demand for
possession. [Cases: Forcible Entry and Detainer
5.]
2. The confinement of a person in custody. 3. A writ
authorizing a prison official to continue holding a
prisoner in custody. [Cases: Extradition and Detain
ers 4, A person who detains someone or some
thing.
de tallagio non concedendo (dee ta-lay-jee-oh non kon
sa-den-doh), n. [Law Latin "of not granting tallage"]
Hist. The title of a statute declaring that no taxes will
be imposed by the king or his heirs without the consent
ofthe archbishops, bishops, earls, barons, knights, and
other freemen of the realm. -The statute has been used
to support the constitutional doctrine disallowing
taxation except by Parliament. 34 Edw. I st. 4.
detection. The act ofdiscovering or revealing something
that was hidden, esp. to solve a crime.
"There is a clear distinction between inducing a person to
do an unlawful act and setting a trap to catch him in the
execution of a criminal plan of his own conception. There
is also a distinction between the terms 'detection' and
'entrapment,' as applied to the activities of law enforce
ment officers. Legitimate detection of crime occurs when
officers test a suspected person by offering him an oppor
tunity to transgress the law in such manner as is usual in
the activity alleged to be unlawful. On the other hand,
entrapment occurs when officers induce a person to violate
the law when he would not otherwise do so." 21 Am. Jur.
2d Criminal Law 202 (1981).
de tempore cujus contrarium memoria hominum non
existit (dee tem-p.:l-ree k[y]oo-jas kan-trair-ee-.:lm
m.:l-mor-ee-.:l hom-i)-mm non eg-zis-tit). [Latin1 From
time whereof the memory of man does not exist to the
contrary. See LEGAL MEMORY.
de tempore in tempus et ad omnia tempora (dee tem
pa-ree in tem-pas et ad om-nee-a tem-pa-fa). [Latin]
From time to time, and at all times.
de temps dont memorie ne court (da tahn dawn mem-a
ree na koor). [Law French] From time whereof memory
does not run; time out ofhuman memory. _ This Law
French phrasing was a forerunner ofBlackstone's classic
formulation: "time whereof the memory of man does
not run to the contrary." 1 William Blackstone, Com-! delivery date is determinable because she kept the
mentaries on the Laws ofEngland 460-61 (1765). See
LEGAL MEMORY.
detente (day-tahnt). [French) 1. The relaxation of
tensions between two or more parties, esp. nations. 2.
A policy promoting such a relaxation of tensions. 3.
A period during which such tensions are relaxed. Cf.
E:-.ITENTE; ALLIANCE.
detentio (di-ten-shee-oh), n. [Latin] 1. Roman law. See
possessio naturalis under POSSESSIO. 2. Hist. Detention;
detainment, as opposed to captio ("taking"). See pos
sessio naturalis under POSSESSIO.
detention, n. (15c) 1. The act or fact of holding a person
in custody; confinement or compulsory delay.
detain, vb.
investigative detention. (1968) The holding of a suspect
without formal arrest during the investigation ofthe
suspect's participation in a crime . Detention ofthis
kind is constitutional only if probable cause exists.
[Cases: Arrest <;.::;>63.5.]
pretrial detention. (1962) 1. The holding of a defen
dant before trial on criminal charges either because
the established bail could not be posted or because
release was denied. [Cases: Bail (;::::J42.] 2. In a juve
nile-delinquency case, the court's authority to hold
in custody, from the initial hearing until the proba
ble-cause hearing, any juvenile charged with an act
that, if committed by an adult, would be a crime .
Ifthe court finds that releasing the juvenile would
create a serious risk that before the return date the
juvenile might commit a criminal act, it may order the
juvenile detained pending a probable-cause hearing.
Juveniles do not have a constitutional right to bail.
The Supreme Court upheld the constitutionality of
such statutes in Schall v. Martin, 467 U.S. 253, 104
S.Ct. 2403 (1984). Also termed temporary deten
tion. [Cases: Infants 192.1
preventive detention. (1952) Confinement imposed
usu. on a criminal defendant who has threatened to
escape, poses a risk of harm, or has otherwise violated
the law while awaiting trial, or on a mentally ill person
who may cause harm.
secret detention. The holding of a suspect in an undis
closed place, without formal charges, a legal hearing,
or access to legal counsel, and without the knowl
edge of anyone other than the detaining authority.
See secret detainee under DETAINEE.
2. Custody of property; esp., an employee's custody of
the employer's property without being considered as
having legal possession of it.
detention hearing. See HEARING.
detention in a reformatory. A juvenile offender's
sentence of being sent to a reformatory school for some
period. [Cases: Infants
determinable, adj. (15c) 1. Liable to end upon the hap
pening of a contingency; terminable <fee simple deter
minable>. 2. Able to be determined or ascertained <the written invoice>.
determinable easement. See EASEMENT.
determinable estate. See ESTATE (1).
determinable fee. 1. See fee simple determinable under
FEE SIMPLE. 2. See base fee under FEE (2).
determinable freehold. See determinable estate under
ESTATE (1).
determinate hospitalization. A fixed period of hospi
talization, usu. by civil commitment.
determinate obligation. See OBLIGATION.
determinate sentence. See SENTENCE.
determinate sentencing. See mandatory sentencing
under SENTENCING.
determination, n. (14c) 1. A final decision by a court or
administrative agency <the court's determination of
the issue>. [Cases: Administrative Law and Procedure
(;::::J489; Federal Civil Procedure c,.?928.]
initial determination. The first determination made by
the Social Security Administration ofa person's eligi
bility for benefits. [Cases: Social Security and Public
Welfare (;::::J8.5, 142.15, 175.25.]
2. The ending or expiration of an estate or interest in
property, or of a right, power, or authority <the ease
ment's determination after four years>. determine,
vb.
determination letter. (1929) A letter issued by the
Internal Revenue Service in response to a taxpayer's
request, giving an opinion about the tax significance of
a transaction, such as whether a nonprofit corporation
is entitled to tax-exempt status. Also termed ruling
letter. [Cases: Internal Revenue (;::::J3049.]
determinative judgment. See final judgment under
JUDGMENT.
determinism. (sometimes cap.) A philosophy that human
behavior is governed primarily by preexisting condi
tions, such as family or environmental factors, and is
not influenced by will. -deterministic, adj.
de termino moto (dee tar-m~-noh moh-toh). [Law Latin]
Hist. The common-law offense of moving or defaCing
landmarks. This was considered a serious crime
because ofthe importance that agrarian laws attached
to landmarks.
deterrence, n. (1861) The act or process ofdiscouraging
certain behavior, particularly by fear; esp., as a goal of
criminal law, the prevention of criminal behavior by
fear of punishment. Cf. REHABILITATION (1); RETRI
BUTION (1). [Cases: Sentencing and Punishment
41.] deter, vb. deterrent, adj.
general deterrence. (1949) A goal of criminal law gen
erally, or of a specific conviction and sentence, to dis
courage people from committing crimes.
special deterrence. (1955) A goal of a specific convic
tion and sentence to dissuade the offender from com
mitting crimes in the future.
deterrent, n. (1824) Something that impedes; something
that prevents <a deterrent to crime>.
deterrent danger. See DANGER.
deterrent punishment. See PUNISHMENT.
de theolonio (dee thee-a-loh-nee-oh), n. [Law Latin "of
toW] Hist. A writ of trespass available to a person pre
vented from taking toll. See TOLL.
de ligno juncto (dee tig-noh jagnk-toh). See actio de tigna
juncto under ACTIO.
detinet (det-i-net). [Latin "he detains"] A holding back;
detention. An action in debt may be in detinet when
the plaintiff alleges that the defendant wrongfully kept
goods, as distinguished from wrongfully taking them.
An action in debt may also be in detinet when it is
brought by or against someone other than an original
party to the debt, such as an executor. An action of
replevin is in detinet when the defendant retains pos
session of the property until after the judgment. Cf.
DEBET ET DETINET.
detinue (det-i-nyoo or -noo). (15c) A common-law
action to recover personal property wrongfully taken
or withheld by another. Cf. REPLEVIN; TROVER. [Cases:
Detinue 1.]
"A claim in detinue lies at the suit of a person who has an
immediate right to the possession of the goods against
a person who is in actual possession of them, and who,
upon proper demand, fails or refuses to deliver them up
without lawful excuse. Detinue at the present day has two
main uses. In the first place, the plaintiff may desire the
specific restitution of his chattels and not damages for
their conversion. He will then sue in detinue, not in trover.
In the second place, the plaintiff will have to sue in detinue
if the defendant sets up no claim of ownership and has
not been guilty of trespass; for the original acquisition in
detinue sur bailment was lawful." R.F.V. Heuston, Salmond
on the Law ofTorts 111 (17th ed. 1977).
detinue ofgoods in frankmarriage. Hist. A writ
allowing a divorced wife to obtain the goods given to
her during the marriage.
detinue sur b |
. Hist. A writ
allowing a divorced wife to obtain the goods given to
her during the marriage.
detinue sur bailment (det-i-nyoo s<lr bayl-mant) [Law
French) Hist. An action to recover property that
the defendant acquired by bailment but refuses to
return.
detinuit (di-tin-yoo-it). [Latin "he has detained"] (Of
property) the former condition of being withheld .
An action is said to be in the detinuit when the plain
tiff finally recovers possession ofthe property claimed
under a writ of replevin.
detour, n. Torts. An employee's minor deviation from
the employer's business for personal reasons . Because
a detour falls within the scope of employment, the
employer is still vicariously liable for the employee's
actions. Cf. FROLIC. [Cases: Labor and Employment G-=
3061(1); Workers' Compensation C=666.]
detournement (di-tuurn-m;mt), n. An employee's mis
appropriation of the employer's funds.
detraction, n. (14c) The removal of personal property
from one state to another after transfer of title by a will
or inheritance. de transgressione (dee trans-gresh-ee-oh-nee), n. [Law
Latin "of trespass"] The general name ofvarious writs
of trespass. See TRESPASS.
de transgressione, ad audiendum et terminandum (dee
trans-gresh-ee-oh-nee, ad aw-dee-en-dam et tar-mi
nan-dam), n. [Law Latin "of trespass, for determin
ing and hearing a misdemeanor"] His/. A commission
for hearing and determining an outrage or misde
meanor.
detriment. (15c) 1. Any loss or harm suffered by a person
or property. 2. Contracts. The relinqUishment of some
legal right that a promisee would have otherwise been
entitled to exercise. Also termed legal detriment. Cf.
BENEFIT (2).
"A promise or an act may be a detriment although on
balance the promisor is making a good bargain. Thus a
promise to pay 10,000 for a Rolls Royce worth 12,000,
is none the less a detriment, and a good consideration for
a promise to deliver the car." P.S. Atiyah, An Introduction
to the Law ofContract 101 (3d ed. 1981).
detriment to a promisee. Contracts. Consideration
offered by a promisee to a promisor, esp. in a unilat
eral contract. [Cases: Contracts ~52.]
detrimental reliance. See RELIANCE.
detunicari (di-tyoo-ni-kair-I), vb. [Latin "to be revealed"]
To discover; to lay open.
de una parte (dee yoo-na pahr-tee), n. [Latin] Of one
party. A deed is de una parte when only one party
grants something to another, as distingUished from a
deed inter partes. See INTER PARTES.
deuterogamy (d[y]oo-t<lr-og-a-mee), n. [fro Greek deu
teragamia "second marriage"] A second marriage after
the death of or divorce from the first spouse, or after an
annulment of a first marriage. -Also termed digama;
digamy.
de uxore rapta et abducta (dee ak-sor-ee rap-ta et
ab-d~k-td), n. [Law Latin "of seizing and carrying away
a man's wife"] Hist. A writ oftrespass for a man whose
wife had been raped and carried away.
devadiatus (di-vad-ee-ay-tas), n. [Law Latin] Hist. A
defendant without a surety. -Also termed divadia
tus.
devaluation, n. The reduction in the value of one
currency in relation to another currency. Cf. REVALU
ATION. devalue, vb.
devastation. (17c) 1. An executor's squandering or mis
management of the deceased's estate. 2. An act of
destruction. 3. WASTE (1).
devastaverunt (di-vas-ta-veer-ant). [Latin pI. of dev
astavit "he (or she) has wasted"] They have wasted .
This word usu. referred to both an executor's waste ofa
decedent's property and the action against the executor
for that waste.
devastavit (dev-a-stay-vit), n. [Latin "he (or she) has
wasted"] A fiduciary's failure to administer an estate
or trust promptly and properly, esp. by spending
extravagantly or misapplying assets . A fiduciary who
de vasto 516
commits waste in this way becomes personally liable
to those having claims on the assets, such as creditors
and beneficiaries.
de vasto (dee vas-toh), n. [Law Latin "of waste"J A writ
allowing a reversioner or remainderman to compel a
tenant for life or for years to appear and answer for the
waste and resulting damage to the plaintiff's inheri
tance. See WASTE (1).
developed water. See WATER.
developing country. Int'l law. A country that is not as
economically or politically advanced as the main indus
trial powers. -Developing countries are located mostly
in Africa, Asia, Eastern Europe, the Middle East, and
Latin and South America. -Also termed developing
state; underdeveloped country; less-developed country;
Third World country.
'"Pertinent terminology has undergone extensive changes
in the past 40 years. At the very start, before the category
found its way into official texts, econom ic and political
writings referred mainly to 'poor' or 'backward' countries.
In the late 19405, the term 'underdeveloped countries'
came into common usage in economic literature and in
the jargon of international organizations. It was replaced in
the 19505 by the term 'less developed countries: for which
the current 'developing countries' was eventually substi
tuted. These terms are essentially interchangeable as they
refer to the same group and kind of countries. However,
variations in the use of the term reflect significant changes
in the perception of the central issue, namely, economic
development, as well as responses to justified sensitivities
on the part of the countries principally concerned." A.A.
Fatouros, "Developing States," in 1 Encyclopedia of Public
International Law 1017 (1992).
development. (1885) 1. A substantial human-created
change to improved or unimproved real estate, includ
ing the construction ofbuildings or other structures.
2. An activity, action, or alteration that changes unde
veloped property into developed property.
developmental disability. See DISABILITY (2).
developmental neglect. See NEGLECT.
development-stage company. See COMPANY.
de ventre inspiciendo (dee ven-tree in-spish-ee-en-doh),
n. [Law Latin "of (or for) inspecting the belly"] Hist.
1. A writ allowing a presumptive heir to summon a
jury ofmatrons to verify the pregnancy ofa widow sus
pected offeigning the pregnancy to produce a supposed
heir. -Also termed ad ventrem inspiciendum. See
venire facias tot matronas under VENIRE FACIAS.
"And this gives occasion to a proceeding at common law,
where a widow is suspected to feign herself with child,
in order to produce a supposititious heir to the estate:
an attempt which the rigor of the GothiC constitutions
esteemed equivalent to the most atrocious theft, and
therefore punished with death. In this case with us the
heir presumptive may have a writ de ventre inspiciendo
to examine whether she be with child, or not ... and, if
the widow be upon due examination found not pregnant,
any issue she may afterwards produce, though within nine
months, will be bastard." 1 William Blackstone, Commentar
ies on the Laws ofEngland 444 (1765).
2. A writ providing a temporary stay ofexecution if a
jury of matrons determines that a woman scheduled
for execution and claiming pregnancy is "quick with child." -The execution would be postponed until after
the birth, but ifthe woman became pregnant a second
time before execution, she had no remedy. Some
times shortened to ventre inspiciendo. -Also spelled
de ventre in spiciendo.
de verbo in verbum (dee v<lr-boh in v<lr-b<Jm). [Law
Latin] Word for word.
devest (di-vest), vb. 1. Hist. To deprive (a person) ofpos
session, title, or property. 2. To take; to draw away.
Also spelled divest.
deviance, n. (1941) The quality or state ofdeparting from
established norms, esp. in social customs. -deviate
(dee-vee-ayt), vb. -deviant, adj. & n. deviate (dee
vee-<Jt), n.
deviation. 1. Generally, a change from a customary
or agreed-on course of action. 2. Employment law. A
departure from one's course ofemployment to tend to
a personal matter. - A deviation from the course of
employment may be an issue in disputes about workers'
compensation or about the employer's tort liability
to third parties based on the employee's actions. See
COURSE OF EMPLOYMENT. Cf. FROLIC. [Cases: Labor
and Employment ~-:>3047; Workers' Compensation
<:;:=666.] 3. Insurance. A departure by an insured party
from a routine course ofaction, resulting in increased
risk of some loss that the insured is indemnified
against. [Cases: Insurance 0-:>3059.]4. Maritime law.
A departure from the terms expressed in a bill oflading
or other transportation contract.
"For both geographic deviations and quasi-deviations, the
contractual voyage is the benchmark against which the car
rier's performance is to be measured. Ifthe parties agreed
to an indirect route, the carrier commits no deviation in
following it; if the parties agreed to deck carriage, the
carrier may stow the cargo on deck. All deviations 'have
one common, indispensable element a violation of the
terms of the bill of lading.'" Michael F. Sturley, "Deviation
Defined," in 2A Benedict on Admiralty 122 (7th rev. ed.
2002) (quoting Rockwell Int'I Corp. v. M/V Incorrans Spirit,
707 F. Supp. 272, 273 (S.D. Tex. 1989), aff'd, 998 F.2d 316
(5th Or. 1993)). [Cases: Shipping ,8=;::>125.]
quasi-deviation. A deviation from an agreed-on
shipping term other than a deviation in course or
destination (e.g., an unreasonable delay or the unau
thorized carriage ofcargo on deck). [Cases: Shipping
reasonable deviation. A deviation that is justified by
circumstances. -Ifa deviation is reasonable, the
carrier does not lose its usual limitations and exemp
tions under the Carriage ofGoods by Sea Act. [Cases:
Shipping (';:::> 125, 138.]
unreasonable deviation. A deviation that is not justi
fied by circumstances. -An unreasonable deviation
causes the carrier to lose the benefit ofits usual lim i
tations and exemptions under the Carriage ofGoods
by Sea Act. [Cases: Shipping 125, 138.J
deviation doctrine. (1948) 1. A principle allowing varia
tion from a term ofa will or trust to avoid defeating the
document's purpose. 2. A principle allowing an agent's
activity to vary slightly from the scope ofthe principal's
permission. 3. Maritime law. The rule that a carrier
loses the benefit ofits limitations and exemptions under
the Carriage ofGoods by Sea Act ifa deviation from the
terms ofthe bill oflading is unreasonable, but does not
if it is reasonable. [Cases: Shipping 138.]
deviation-well survey. An examination to determine
whether a well is bottomed under another person's
land.
device. (14c) 1. Patents. A mechanical invention, as dif
ferentiated in patent law from a chemical discovery.
A device may be an apparatus or an article ofmanufac
ture. -Also termed machine. [Cases: Patents 2.
A scheme to trick or deceive; a stratagem or artifice, as
in the law relating to fraud. [Cases: Fraud C=> 3.]
de vicineto (dee vi-sin-d-toh or -sI-nd-toh). [Law Latin]
From a vicinage; from a neighborhood. -This term
was generally used in reference to a jury pool. See DE
CORPORE COMITATUS.
de vi laka amovenda (dee VI laY-d-kd ay-moh-ven-dd),
n. [Law Latin "of removing a lay force"] Hist. A writ
allowing a parson claiming rights to a church to order
a sheriff to remove a group oflaymen who, with another
parson, had taken control ofthe church and prevented
the new parson from entering.
deviling (dev-d-ling). 1. The act ofa barrister's handing
a brief over to another to handle a case. 2. The practice
of a junior barrister (known as a "devil") who drafts
pleadings or other documents for a senior barrister who
approves them, signs them, and is ultimately respon
sible for the work. -Also spelled devilling.
devil on the neck. Hist. A torture device made of irons
that fastened to a person's neck and legs and then
wrenched together to either gradually or quickly break
the person's back. -It was often used to coerce confes
sions.
devisable, adj. (16c) 1. Capable ofbeing bequeathed by a
. will. 2. Capable of being invented. 3. Feigned.
devisavit vel non (dev-<}-say-vit [or -zay-vitl vel non),
n. [Law Latin "he (or she) devises or not"] Hist. An
issue directed from a chancery court to a court oflaw to |
Latin "he (or she) devises or not"] Hist. An
issue directed from a chancery court to a court oflaw to
determine the validity ofa will that has been contested,
as by an allegation offraud or testamentary incapacity.
See VEL NON.
devise (di-VIZ), n. (lSc) 1. 'Ihe act ofgiving property by
will. -Although this term traditionally referred to
gifts of real property -and in British usage the term
is still confined to real property in American usage
the term has been considerably broadened. In both
the Restatement of Property and the Uniform Probate
Code, a disposition of any property by will is a devise.
In the United States today, it is pedantry to insist that
the noun devise be restricted to real property. [Cases:
Wills 1.] 2. The provision in a will containing
such a gift. 3. Property disposed of in a will. 4. A will
disposing ofproperty. Cf. TESTAMENT (1); BEQUEST;
LEGACY. devise, vb. alternative devise. A devise that, under the terms ofthe
will, is designed to displace another devise if one or
more specified events occur. -Also termed second
ary devise. [Cases: Wills C=>553, 856.]
conditional devise. (18c) A devise that depends on the
occurrence of some uncertain event. [Cases: Wills
C=>639-668.J
demonstrative devise. A devise, usu. of a specific
amount of money or quantity of property, that is
primarily payable from a designated source, but that
may be payable from the estate's general assets if the
designated property is insufficient. See Restatement
(Third) of Property: Wills and Other Donative Trans
fers 5.1 (1999). Cf. pecuniary devise. [Cases: Wills
C='751,
executory devise. (17c) An interest in land, created by
will, that takes effect in the future and depends on a
future contingency; a limitation, by will, of a future
estate or interest in land when the limitation cannot,
consistently with legal rules, take effect as a remain
der. An executory devise, which is a type ofcondi
tionallimitation, differs from a remainder in three
ways: (1) it needs no particular estate to support it,
(2) with it a fee simple or lesser estate can be limited
after a fee simple, and (3) with it a remainder can be
limited in a chattel interest after a particular estate for
life is created in that interest. See conditionallimita
tion under LIMITATION. [Cases: Wills C=>7.J
"The reason of the institution of the executory devise was
to support the will of the testator; for when it was evident
that he intended a contingent remainder, and when it could
not operate as such by the rules of law, the limitation was
then, out of indulgence to wills, held to be good as an
executory devise. They are not mere possibilities, but
certain and substantial interests and estates, and are put
under such restraints only as have been deemed requisite
to prevent the mischiefs of perpetuities, or the existence
of estates that were unalienable." 4 James Kent, Commen
taries on American Law *264 (George Comstock ed., 11th
ed. 1866).
failed devise. See lapsed devise.
general devise. (18c) 1. A devise, usu. of a specific
amount of money or quantity of property, that is
payable from the estate's general assets. See Restate
ment (Third) of Property: Wills and Other Donative
Transfers 5.1 (1999). 2. A devise that passes the
testator's lands without specifically enumerating or
describing them. [Cases: Wills C---=>583.]
lapsed devise. (18c) A devise that fails because the
testator outlives the named recipient. - Also termed
failed devise;failed gift.
pecuniary devise. A demonstrative devise consisting
ofmoney. Cf. demonstrative devise. [Cases: Wills C---=>
750.]
primary devise. A devise to the first person named as
taker. For example, a devise ofB1ackacre to A, but
if A does not survive me then to B" names A as the
recipient ofthe primary devise and Bas the recipient
of the secondary or alternative devise.
residuary devise. (l8c) A devise of the remainder ofthe
testator's property left after other spedfic devises are
taken. [Cases: Wills C='586.1
secondary devise. See alternative devise.
specific devise. (l8c) A devise that passes a particular
piece ofproperty. [Cases: Wills Y751.]
younger-generation devise. An alternative devise to a
descendant ofthe redpient ofa primary devise. Unit.
Probate Code 2-603. A devise of "Blackacre to
A, but if A does not survive me then to 1\5 child B"
creates a younger-generation devise in 1\s descendant,
B. See alternative devise.
devise, vii. To give (property) by will. [Cases: Wills
I.]
"The modern convention which sets apart 'devise' for
'realty' and 'bequeath' for 'personalty' is modern; in the
middle ages, the English word ... is the equivalent of
the French word." 2 Frederick Pollock & Frederic William
Maitland, Historv ofEnglish Law Before the Time ofEdward
1338 (2d ed. 1899).
devisee (dev-;:l-zee or di-vI-zee). (16c) A recipient of
property by will. Cf. LEGATEE.
first devisee. The first devisee deSignated to receive an
estate under a will.
next devisee. The devisee who receives the remainder
of an estate in tail, as distinguished from the first
devisee. See FEE TAIL. [Cases: WillsY604.]
residuary devisee. The person named in a will to
receive the testator's remaining property after the
other devises are distributed.
deviser. (16c) One who invents or contrives <the deviser
of these patents>.
devisor. (16c) One who disposes of property (usu. real
property) in a will. [Cases: Wills (:;= 1.]
devoir (d;:l-vwahr or dev-wahr). Hist. A duty; a tax.
Also spelled devoire.
"Devoire is as much as to say a duty. It is used in the statute
of 2 R. 2, cap. 3, where it is provided, that all the western
merchants, being of the king's amity, shall pay all manner
of customs and subsidies, and other devoire of Calais."
Termes de la Lev 168 (1st Am. ed. 1812).
devolution (dev-;:l-Ioo-sh;:ln), n. (16c) The act or an
instance oftransferring one's rights, duties, or powers
to another; the passing ofsuch rights, duties, or powers
by transfer or succession <the federal government's
devolution of police power to the states>. -devolu
tionary, adj. -devolutionist, n.
devolutive appeal. See APPEAL.
devolve (di-vahlv), vb. (I6c) 1. To transfer (rights, duties,
or powers) to another. 2. To pass (rights, duties, or
powers) by transmission or succession. See DEVOLU
TION.
devy (d;:l-VI), vb. [Law French] To die.
de warrantia chartae (dee wa-ran-shee-;:l kahr-tee),
n. [Law Latin "of a warranty of charter"] Hist. A writ
allowing a tenant enfeoffed with a warranty, who was
impleaded in an assize or other action in which the tenant could not call upon the warranty, to compel the
feoffor to assist the tenant with a plea or defense, or else
to pay damages and the value ofthe land, ifit is recov
ered against the tenant.
"This we still make use of in the form of common recoveries,
which are grounded on a writ of entry; a species of action
that we may remember relies chiefly on the weakness of
the tenant's title, who therefore vouches another person
to warrant it .... In assises indeed. where the principal
question is whether the demandant or his ancestors were
or were not in possession till the ouster happened, and
the title of the tenant is little (if at all) discussed, there
no voucher is allowed; but the tenant may bring a writ of
warrantia chartae against the warrantor, to compel him to
assist him with a good plea or defence, or else to render
damages and the value of the land, if recovered against the
tenant." 3 William Blackstone, Commentaries on the Laws
of England 299 (1768).
de warrantia diei (dee wa-ran-shee-;:l dI-ee-I), n. [Law
Latin "of warranty of day"] Hist. A writ ordering a
judge not to default a party for nonappearance because
the Crown warranted that the party was busy in its
service.
dextrarius (dekstrair-ee-ds). Hist. One at the right hand
ofanother.
dextras dare (dek-str;:ls dair-ee), vb. [Latin "to give right
hands"]l. To shake hands to show friendship. 2. To
give oneself up to the power of another.
DFA. abbr. DELAYED FUNDS AVAILABILITY.
DFAS. abbr. DEFENSE FINANCE AND ACCOUNTING
SERVICE.
DHS. abbr. 1. DEPARTMENT OF HOMELAND SECURITY. 2.
Department of human services. See DEPARTMENT OF
PUBLIC WELFARE.
DIA. abbr. DEFENSE INTELLIGENCE AGENCY.
diaconate (dI-ak-d-nit), n. [Law LatinI A deacon's
office.
diaconus (dI-ak-;:l-nds), n. [Law Latin] A deacon. See
DEACON.
diagnosis (dI-;:lg-noh-sis). (17c) 1. The determination
of a medical condition (such as a disease) by physical
examination or by study ofits symptoms. 2. The result
of such an examination or study. Cf. PROGNOSIS.
clinical diagnosis. A diagnOSiS from a study of
symptoms only.
physical diagnosis. A diagnosis from physical exami
nation only.
diagnostic commitment. See COMMITMENT.
dialectic (dI-d-Iek-tik), n. (16c) 1. A school oflogic that
teaches critical examination ofthe truth ofan opinion,
esp. by discussion or debate. The method was applied
by ancient philosophers, such as Plato and Socrates,
primarily in the context of conversational discussions
involving questions and answers, and also by more
modern philosophers, such as Immanuel Kant, who
viewed it as a theory of fallacies, and G.W.F. Hegel,
who applied the term to his philosophy proceeding
from thesis, to antithesis, to synthesis. 2. An argument
made by critically examining logical consequences. 3.
A logical debate. 4. A disputant; a debater. PI. dialec
tics.
diallage (dr-aI-J-jee), n. [fro Greek diallage "interchange"]
A rhetorical figure of speech in which arguments are
placed in several points ofview, and then brought to
bear on one point.
Dialogus de Scaccario (dr-al-J-gas dee skJ-kair-ee-oh),
n. [Law Latin "a dialogue of or about the Exchequer"]
Rist. A treatise, written during the reign ofHenry II, on
the Court of Exchequer, set up in imaginary dialogue
form between a master and a disciple . Although some
originally attributed the work to Gervase ofTilbury, it
was proba.bly written by Richard Fitz Nigel, the bishop
of London under Richard I, and the former Treasurer
ofthe Exchequer.
"The Dialogus de Scaccario is an anonymous book, but
there can be little doubt that we are right in ascribing it
to Richard Fitz Neal: that is to say, to Richard the son of
that Nigel, bishop of Ely .... The book stands out as an
unique book in the history of medieval England, perhaps
in the history of medieval Europe. A high officer of state,
the trusted counsellor of a powerful king, undertakes to
explain to all whom it may concern the machinery of gov
ernment. He will not deal in generalities, he will conde
scend to minute details. Perhaps the book was not meant
for the general public so much as for the numerous clerks
who were learning their business in the exchequer, but still
that such a book should be written, is one of the wonderful
things of Henry's wonderful reign." 1 Frederick Pollock &
Frederic W. Maitland, The History ofEnglish Law Before the
Time ofEdward 1161-62 (2d ed. 1898).
dianatic (dI-d-nat-ik). See DIANOETIC.
dianoetic (dI-a-noh-et-ik), n. [Greekdianoetikos, fro dia
"through" + noein "to revolve in the mind"] Archaic.
A form of logical reasoning that proceeds from one
subject to another. -Also termed (erroneously)
diana tic.
diarchy. See DYARCHY.
diarium (dr-air-ee-am), n. [fro Latin dies "day"] Roman
law. An allowance (usu. offood) needed for a day; a
daily allowance of food or pay. PI. diaria (dI-air
ee-<J).
diatim (dl-ay-tam). [fro Latin dies "day"] Every day;
daily.
dica (dl-k<'l), n. [Law Latin) An account tally. See TALLY
(1).
dicast (dI-kast or dik-ast), n. [Greek dikastesJ Rist. An
ancient Greek officer sitting as both judge and juror.
Each dicast was generally a free citizen over the age of
30. The dic |
Greek officer sitting as both judge and juror.
Each dicast was generally a free citizen over the age of
30. The dicasts sat together in groups ofbetween 100 to
500, according to each case's importance, and decided
cases by a majority.
dicis causa (dI-sis kaW-Zd). [Latin] Roman law. For form's
sake; on the surface . The phrase appeared in reference
to transactions completed in a certain form to conceal
their true purpose.
dictate, vb. 1. To pronounce orally for transcription. 2.
To order; to command authoritatively.
dictation. 1. The act ofspeaking words to be transcribed.
2. The words so transcribed. dictator. L Roman law. An absolute ruler appointed in
an emergency for a term of six months and subject to
reappointment.
"In special emergencies, particularly in times of grave
crisis, either consul might appoint a dictator who exercised
supreme authority, but not beyond six months, unless
reappointed. This was, in effect, a temporary reversion
to monarChy." RW. Lee, The Elements ofRoman Law 14
(4th ed. 1956).
2. A person, esp. a ruler, with absolute authority.
dictum (dik-t;)m), n.(16c) 1. A statement of opinion or
belief considered authoritative because of the dignity
ofthe person making it. 2. A familiar rule; a maxim. 3.
OBITER DICTUM. PI. dicta. [Cases: Courts (;:=>92.]
"As a dictum is by definition no part of the doctrine of the
deciSion, and as the citing of it as a part of the doctrine
is almost certain to bring upon a brief maker adverse
comment, lawyers are accustomed to speak of a dictum
rather slightingly, and sometimes they go so far as to
intimate a belief that the pronouncing of a dictum is the
doing of a wrong. Yet it must not be forgotten that dicta
are frequently, and indeed usually, correct, and that to give
an occasional illustration, or to say that the doctrine of
the case would not apply to some case of an hypothetical
nature, or to trace the history of a doctrine, even though it
be conceded, as it must, that such passages are not essen
tial to the deciding of the very is often extremely
useful to the profession." William M. et aI., BriefMaking
and the Use ofLaw Books 307 (3d ed. 1914).
dictum proprium (dik-tam proh-pree-am). A personal
or individual dictum that is given by the judge who
delivers an opinion but that is not necessarily con
curred in by the whole court and is not essential to
the disposition of the case. Also termed (loosely)
dictum propria.
gratis dictum (gray-tis dik-tam). 1. A voluntary state
ment; an assertion that a person makes without being
obligated to do so. 2. A court's stating ofa legal prin
ciple more broadly than is necessary to decide the
case. 3. A court's discussion of points or questions
not raised by the record or its suggestion ofrules not
applicable in the case at bar.
judicial dictum. An opinion by a court on a question
that is directly involved, briefed, and argued by
counsel, and even passed on by the court, but that is
not essential to the decision. Cf. OBITER DICTUM.
obiter dictum. See OBITER DICTUM.
simplex dictum (sim-pleks dik-tam). An unproved or
dogmatic statement. See IPSE DIXIT.
dictum de Kenilworth (dik-tam dee ken-al-w;)rth), n.
[Law Latin "edict ofKenilworth"] Rist. A declaration
of an agreement between Edward I and the barons
who had opposed him under the leadership of Simon
de Montfort . The agreement, which concerned rent
on the lands forfeited in the rebellion, was so called
because it was made at Kenilworth castle in Warwick
shire in A.D. 1266. It was published in the Statutes of
the Realm and 52 Hen. 3.
dictum page. See pinpoint citation under CITATION (3).
dictum propria. See dictum proprium under DICTUM.
diebus feriatis 520
diebus feriatis (dl-a-bas feer-ee-ay-tis). [Latin] Hist. On
holidays.
diei dictio (dI-ee-I dik-shee-oh). [Latin "appointing a
day"] Roman law. 1. A magistrate's notice summon
ing the accused to appear on a fixed day for trial. 2.
The service ofa summons. Also written did dictitio,
diem dicere.
diem clausit extremum (dl-am klaw-zit ek-stree
mam), n. [Law Latin "he closed his last day"] Hist. 1.
A chancery writ, founded on the statute of Madbury,
ordering the county escheator, after the death of a
chief tenant of the Crown, to summon a jury to deter
mine the amount and value ofland owned by the chief
tenant, to determine the next heir, and to reclaim the
property for the Crown. -It was a type of inquisition
post mortem.
"Diem clausit extremum is a writ that lies where the king's
tenant that holds in chief, dies; then this writ shall be
directed to the excheator, to inquire of what estate he was
seised, who is next heir, and his age. and of the certainty
and value of the land, and of whom it is holden; and the
inquisition shall be returned into the chancery, which is
commonly called the office after the death ofthat person,"
Termes de fa Ley 169 (lst Am. ed. 1812).
2. An Exchequer writ ordering a sheriff to summon a
jury to investigate a Crown debtor's place ofdeath and
amount ofproperty owned, and to levy the property of
the deceased's heirs and executors, -Itwas repealed by
the Crown Proceedings Act of 1947.
"And there is another writ of diem clausit extremum
awarded out of the exchequer, after the death of an
accomptant or debtor of his majesty, to levy the debt of
his heir, executor, administrator's lands or goods." Termes
de fa Ley 169 (1 st Am. ed, 1812).
dies (dI-eez), n. [Latin] A day; days. PI. dies.
dies ad quem (dl-eez ad kwem), n. [Latin "the day to
which"] Civil law. An ending date for a transaction;
the ending date for computing time, such as the day
on which interest no longer accrues.
dies amoris (dI-eez ;3-mor-is), n. [Law Latin] Hist.
A day of favor; esp., a day set by the court for the
defendant to make an appearance. -This was usu.
the fourth day of the term, which was the first day
the court normally sat for business. In addition,
the defendant usu. had three days of grace from the
summons to appear, but an appearance on the fourth
day quarto die post ("on the fourth day thereafter")
was usu. sufficient.
dies a quo (dI-eez ay kwoh), n. [Latin "the day from
which"] Civil law, A transaction's commencement
date; the date from which to compute time, such as
a day when interest begins to accrue. La. Civ. Code
art. 1784.
dies cedit (dI-eez see-dit). [Latin "the time begins
to run"] Roman & Scots law. The day on which an
interest, esp. a legacy, vests; the day on which a condi
tional obligation becomes due. -An interest usu., but
not always, vested on the day of the testator's death.
Also termed dies cedens. Cf. dies venit. "A legacy was due, or became a valid right, either at the
death of the testator or the occurrence of a condition
precedent. This vesting of the property or the accruing
of an obligation determined the content and nature of the
interests involved. What the legatary got was discovered
by examining what the legacy actually carried with it on
the day when it became vested. To express the fact that
the legacy had become vested, the technical expression
dies cedit was used." Max Radin. Handbook ofRoman Law
434-35 (1927),
dies comitiales (dI-eez k;}-mish-ee-ay-leez). [Latin]
Roman law. 1he 190 days in the year when an election
could be held or the people could assemble as a legis
lative body. -The praetors could not hold court while
a legislative assembly was in session.
dies communes in banco (dI-eez ka-myoo-neez in
bang-koh), n. [Law Latin "common days before the
bench"]!. Regular appearance dates in court. -Also
termed common-return days. 2. An enactment printed
under the Statutes of Henry III, regulating continu
ances and writ return dates.
dies datus (dI-eez day-tas), n. [Law Latin "a given day"]
A continuance, esp. for a defendant before a decla
ration is filed; a time of respite in a case. - A con
tinuance granted after the filing of the declaration is
called an imparlance. See IMPARLANCE.
dies datus in banco (dI-eez day-tas in bang-kohl, n.
[Law Latin] A day given before the bench, as distin
gUished from a day at nisi prius.
dies datus partibus (dI-eez day-tas pahr-ta-bas), n.
[Law Latin "a day given to the parties"] A continu
ance; an adjournment.
dies dotus prece partium (dI-eez day-t;!s prce-see pahr
shee-am), n. [Law Latin "a day given at the prayer of
the parties"] A day given at the parties' request.
dies Dominicus (dI-eez da-min-i-kas), n. [Latin] The
Lord's day; Sunday.
dies excrescens (dI-eez ek-skree-sanz), n. [Law Latin
"the increasing day"] The additional day in a leap
year.
dies fasti (dI-eez fas-tI). [Latin] Roman law. A day
when justice could be administered; a day when the
praetor could officially pronounce the three words
"do," "dico," and "addico." -Also called triverbial
days. Cf. NEFASTUS.
dies feriati (dI-eez fer-ee-ay-tI), n. [Latin] Roman &
civil law. A holiday; holidays.
dies gratiae (dI-eez gray-shee-ee), n. [fr. Law French
jour de grace] Hist. A day of grace, usu. granted to
the plaintiff.
dies in banco. See DAYS IN BANK.
dies intercisi (dI-eez in-t;3r-SI-zI). [Latin "divided
days"] Roman law. A day when the courts were open
for only part of the day.
dies juridicus (dI-eez juu-rid-i-kas), n. [Latin] A day
when justice can be administered. -This term was
derived from the civil-law term dies Jasti. See dies
Jasti.
dies legitimus (dl-eez l<>-jit-i-m<>s). [Latin) Roman law.
A lawful day; a law day.
dies marchiae (dI-eez mahr-kee-ee), n. [Law Latin "a
day ofthe march"] Hist. In the reign ofRichard II, the
annual day set aside for the wardens of the English
and Scottish borders to hold peace talks and resolve
differences.
dies nefasti (dI-eez nee-fas-tl), n. 1. NEFASTUS (2). 2.
See dies non juridicus.
dies non (dJ-eez non). See dies non juridicus.
dies non juridicus (dI-eez non juu-rid-i-k<>s), n. [Law
Latin "a day not juridical") A day exempt from court
proceedings, such as a holiday or a Sunday. Often
shortened to dies non.
dies pads (dI-eez pay-sis), n. [Law Latin "day ofpeace")
Hist. A day of peace. _ The days were originally
divided into two categories: dies pacis ecclesiae ("a
day of the peace ofthe church") and dies pads regis
("a day ofthe Crown's peace").
dies religiosi (dI-eez ri-lij-ee-oh-sI). [Latin] Roman law.
Religious days on which it was unlawful to transact
legal or political business.
dies solaris (dl-eez sd-Iair-is), 11. [Law Latin "a solar
day"] See solar day under DAY.
dies solis (dl-eez soh-lis). [Latin "day of the sun"]
Roman law. Sunday.
dies utiles (dl-eez yoo-t<>-leez). [Latin "available days"]
Roman law. A day when something can be legally
done, such as an application to the praetor to claim
an inheritance.
dies venit (dl-eez vee-nit). [Latin "the day has corne"]
Romal1 & Scots law. The date when an interest is both
vested and actionable. _ It is usu. the day when the
heir accepts the inheritance and a legatee can claim
payment ofa legacy. Also termed dies veniel1s. Cf.
dies cedit.
"But the legacy, though vested, is not yet so completely the
property of the legatary that he may bring an action for
it. To the fact that such a right of action accrues,
the term venit was used. In general, it may be said
that dies veniens occurred when, and not until, the heres
has actually entered upon the inheritance. But, of course,
if the legacy was conditional, the heres may enter before
the condition happens. In that case, dies veniens will occur
simultaneously with dies cedens; i.e., the legacy will vest
and the bequest become actionable at the same moment."
Max Radin, Handbook ofRoman Law 435 (1927).
d |
actionable at the same moment."
Max Radin, Handbook ofRoman Law 435 (1927).
dies votorum (dl-eez voh-tor-am), n. [Latin "a day of
vows"] A wedding day.
diet. 1. A esp. offood. 2. (cap.) A nation's parlia
mentary assembly, as in Israel, Japan, or some eastern
European nations. 3. A governing body's meeting day
for legislative, political, or religious purposes; speci., a
national assembly ofvarious European countries, such
as the diet ofthe German empire, which was summoned
by the emperor regularly to perform various functions,
including levying taxes, enacting laws, and declaring
war. 4. Scots law. A day to perform a duty, such as a court sitting day, an appearance day, and a criminal
pleading or trial day. -Also spelled dyet.
"In procedure on indictment there are two diets, the
pleading diet, when the accused is called to plead, and the
trial diet when, if he has pled not gUilty, he is tried." David
M. Walker, The Oxford Companion to Law 357 (1980).
dieta (dI-ee-tJ), 11. [fr. Latin dies "day"] Hist. 1. A day's
journey. 2. A day's work. 3. A day's expenses.
dietary law. Any of the body of laws observed by
members of various faiths regulating what foods may
be eaten, how the foods must be prepared and served,
and what combinations and contacts (e.g., between
meat and milk) are prohibited.
di. etfl. (dI et fl). abbr. DILECTO ET FIDEL!.
Dieu et mon droit (dyuu ay mawn drwah). [French "God
and my right"] The motto ofthe royal arms ofEngland.
-It was first used by Richard I and, with the exception
of Elizabeth 1, was continually used from Edward III
to William III, who used the motto je maintiendrey.
Queen Anne used Elizabeth 1'8 motto, semper eadem,
but Dieu et mon droit has been used since her death.
Dieu son acte (dyuu sawn akt), n. [Law Latin "an act of
God"] Hist. An act of God, beyond human controL
diffacere (di-fay-sJ-ree), vb. [fro Old French deffacerl
Hist. To deface; to mutilate. Also termed disfacere;
defacere.
different-department rule. A doctrine holding that
people who work for the same employer are not fellow
servants ifthey do not do the same work or do not work
in the same department. -This rule, which creates an
exception to the fellow-servant doctrine, has been
rejected by many jurisdictions. See FELLOW-SERVANT
DOCTRINE;feliow servant under SERVANT. [Cases: Labor
and Employment (;:::>2921.]
differential pricing. (1946) The setting of the price ofa
product or service differently for different customers.
See PRICE DISCRIMINATION.
difforciare (di-for-shee-air-ee), vb. [Law Latin "to deny"]
Hist. To keep (something) from someone; to deny
(something) to someone.
diffused surface water. See WATER.
DIF system. See DISCRIMINANT FUNCTION.
digama (dig-J-m<. See DEUTEROGAMY.
digamy (dig-<>-mee). See DEUTEROGAMY.
digest, 11. (14c) 1. An index oflegal propositions showing
which cases support each proposition; a collection of
summaries of reported cases, arranged by subject
and subdivided by jurisdiction and court. _ The chief
purpose ofa digest is to make the contents of reports
available and to group together those cases bearing on
some specific point. The American Digest System covers
the decisions ofall American courts oflast resort, state
and federal, from 1658 to present. Abbr. D.; Dig.
"An important and numerous class of books included in the
general division designated as books of secondary author
ity is the group known by the generic name of 'Digests.' A
Digest is essentially an index to Cases. But it is much more
522 digital agenda
than an ordinary index, for it indicates the holdings and (in
some, though not all, publications) the facts of each case.
Any particular digest is a summary of the case law coming
within its scope, and its units are summaries of particular
points of particular cases. What the syllabi of a reported
case are to that case, a digest is to many cases. Were a
digest simply a collection of citations to cases, arranged
logically according to the contents of such cases, it would
be a search book; but, being a summary of the case law, it
is a book of secondary authority." William M. Lile et aI., Brief
Making and the Use ofLaw Books 68 (3d ed. 1914).
2. Civil law. (cap.) A compilation and systematic state
ment of the various areas of law; chiefly, the Pandects
ofJustinian in 50 books, known as the Digest. -Also
termed (figesta; digests. See PANDECT (2).
digital agenda. Copyright. A series of 10 proposed
changes to copyright law announced by WI PO in 1999
and deSigned to protect intellectual-property rights
on the Internet while promoting e-commerce. Also
termed W!PO digital agenda.
digital cash. See e-money under MONEY.
digital certificate. A publicly available computer-based
record that identifies the certifying authority and
the subscriber who was issued a digital signature for
electronically transmitted documents and that also
provides the person's public key for decrypting the
digital signature . Subscribers register with certifica
tion authorities to obtain digital signatures. Certificates
may include additional information, including issuance
and expiration dates, and recommended reliance limits
for transactions relying on the certificate. The certifi
cate also serves as an electronic notarization when
attached to an electronic document by the sender.
digital fingerprinting. See STEGANOGRAPHY.
Digital Millennium Copyright Act. A 1998 federal
law harmoniZing United States copyright protection
with international law, limiting copyright liability for
Internet service providers, and expanding software
owners' ability to copy programs . Among many other
provisions, the statute extends copyright protection
to computer programs, movies, and other audiovisual
works worldwide; attempts to regulate cyberspace;
forbids devices whose purpose is to evade digital
antipiracy tools; and bars the production or distribu
tion of falsified copyright-management information. 17
USCA 1301-1332. Abbr. DMCA. [Cases: Copy
rights and Intellectual Property C::::> 34, 67.3.]
digital sampling. See SAMPLING.
digital signature. See SIGNATURE.
digital watermarking. See STEGANOGRAPHY.
dignitary, adj. Ofor relating to one's interest in personal
dignity, as contrasted with one's interest in freedom
from physical injury and property damage. Tort
actions that compensate a plaintiff for a dignitary insult
rather than physical injury or property damage include
false-light privacy and negligent infliction of emotional
distress.
dignitary, n. 1. A person who holds a high rank or honor.
2. Eccles. law. A person who, by virtue of holding a superior office stands above ordinary priests and
canons.
dignitary tort. See TORT.
dignity, n. 1. The state ofbeing noble; the state of being
dignified. 2. An elevated title or position. 3. A person
holding an elevated title; a dignitary. 4. A right to hold
a title of nobility, which may be hereditary or for life.
"Dignities may be hereditary, such as peerages ... or for
life, such as life peerages and knighthoods. The dignities
of peerages and baronetcies are created by writ or letters
patent, that of knighthood by dubbing as knight. A dignity
of inheritance may also exist by prescription. Dignities of
inheritance are incorporeal hereditaments having been
originally annexed to the possession of certain lands or
created by a grant of those lands and are generally limited
to the grantee and his heirs Of his heirs of the body. If
heirs are not mentioned, the grantee holds for life only.
The heirs are determined by the rules which governed the
descent of land prior to 1926." David M. Walker, The Oxford
Companion to Law 358 (1980).
dijudication (dI-joo-d<'i-kay-sh;m). Archaic. A judicial
determination.
dilapidation. (often pl.) Damage to a building resulting
from acts of either commission or omission . A dilapi
dation may give rise to liability if it constitutes an act
ofwaste, a breach of contract, or a statutory violation.
[Cases: Landlord and Tenant C::::>S5, 125, 154, 166.J
dilapidations. action for (d<'i-Iap-;}-day-sh<'inz). Hist.
An action brought by a new incumbent of a benefice
for damages rising from the disrepair ofthe houses or
buildings on the benefice . The incumbent -whether
of a rectory, a vicarage, or a chapel -sued the execu
tors or administrators ofthe incumbent's deceased pre
decessor (who was not liable for the disrepairs while
living). The incumbent of a benefice was bound to
maintain the parsonage, farm buildings, and chancel
in good and substantial repair, restoring and rebuilding
when necessary, according to the original plan. But the
incumbent did not have to supply or maintain anything
in the nature of ornament.
dilatory (dil-<'i-tor-ee), adj. (15c) Tending to cause delay
<the judge's opinion criticized the lawyer's persistent
dilatory tactics>.
dilatory defense. See DEFENSE (1).
dilatory exception. See EXCEPTION (1).
dilatory fiduciary. See FIDUCIARY.
dilatory motion. 1. See MOTION (1). 2. See MOTION (2).
dilatory plea. See PLEA (3).
dilecto et fideli (di-lek-toh et fi-dee-h). [Law LatinJ To his
beloved and faithful. This phrase was used in various
writs. Abbr. di. etfl.
diligence. (14c) 1. A continual effort to accomplish some
thing. 2. Care; caution; the attention and care required
from a person in a given situation . The Roman-law
equivalent is dilegentia. See DILEGENTIA.
"Care, or the absence of negligentia, is diligentia. The use
of the word diligence in this sense is obsolete in modern
English, though it is still retained as an archaism of legal
diction. In ordinary usage, diligence is opposed to idleness,
not to carelessness." John Salmond, Jurisprudence 393 n.(i)
(Glanville L. Williams ed., 10th ed. 1947).
common diligence. 1. See due diligence (0. 2. See
ordinary diligence.
due diligence. (18c) 1. The diligence reasonably
expected from, and ordinarily exercised by, a person
who seeks to satisfy a legal requirement or to dis
charge an obligation. Also termed reasonable dili
gence; common diligence. 2. Corporations & securities.
A prospective buyer's or broker's investigation and
analysis of a target company, a piece of property, or
a newly issued security. - A failure to exercise due
diligence may sometimes result in liability, as when
a broker recommends a security without first inves
tigating it adequately. [Cases: Securities Regulation
C:=>25.21(4),25.62(2).]
extraordinary diligence. Extreme care that a person
of unusual prudence exercises to secure rights or
property.
great diligence. The diligence that a very prudent
person exercises in handling his or her own property
like that at issue. -Also termed high diligence.
low diligence. See slight diligence.
necessary diligence. The diligence that a person is
required to exercise to be legally protected.
ordinary diligence. (18c) The diligence that a person
of average prudence would exercise in handling his
or her own property like that at issue. Also termed
common diligence.
reasonable diligence. (18c) 1. A fair degree of diligence
expected from someone ofordinary prudence under
circumstances like those at issue. 2. See due diligence
(1).
slight diligence. (1836) The diligence that a person of
less than common prudence takes with his or her own
concerns. Also termed low diligence.
special diligence. The diligence expected from a person
practicing in a particular field ofspecialty under cir
cumstances like those at issue.
3. Patents. Speed and perseverance in perfecting an
invention. _ Diligence is one factor in deciding which
of two or more independent inventors will be granted
a patent: if the first inventor cannot prove reason
able diligence in reducing the invention to practice, a
later inventor may take priority. [Cases: Patents
90(3).] 4. Scots law. A court-issued warrant to compel
something, such as the attendance of a witness or the
enforcement of an unpaid judgment debt. 5. Scots
law. Any legal process available to a creditor to seize
a debtor's property to compel the debtor to answer an
action for debt, to preserve the property as security for
a judgment that the creditor may obtain, or to liqui
date the property in satisfaction ofa judgment already
obtained. -Forms of diligence include adjudication,
arrestment, inhibition, poinding, and sequestration for
rent. Until the mid-20th century, a debtor could also be
imprisoned. The term diligence is also sometimes used to denote a warrant that may be granted to compel a
witness's attendance or to compel production of docu
ments. See EX |
warrant that may be granted to compel a
witness's attendance or to compel production of docu
ments. See EXECUTION (3).
diligence against the heritage. Scots law. A writ of exe
cution allowing a creditor to proceed against a debtor's
real property.
diligent, adj. Careful; attentive; persistent in doing
something.
diligentia (dil-a-jen-shee-a), n. [Latin] Roman law. Care
fulness; diligence. _ The failure to exercise diligentia
might make a person liable if contractually obliged to
look after another's interests, or it might result in tort
liability. See DILIGENCE. Cf. NEGLIGENTIA.
"The texts distinguish two standards of diligence, a higher
and a lower. The higher is the diligence which the good
father of a family habitually exhibits in his own affairs
(diligentia exacta or exactissima diligentia boni patris
familias). The lower is the diligence which the person
in question exhibits in his own affairs (diligentia quam
suis rebus). This may, in fact, reach a high degree of dili
gence or it may not. But, at least, where this standard is
applied nothing extraordinary is expected. It is a concrete
standard. It is enough that the person in question pursues
his normal course. According to a traditional terminology,
where the first standard is applied, there is said to be liabil
ity for culpa levis in abstracto slight negligence in the
abstract; in the second case there is liability for culpa levis
in concreto slight negligence in the concrete." R.W. lee,
The Elements of Roman Law 288 (4th ed. 1956).
diligentia exactissima (dil-a-;en-shee-;) eks-ak-tis
;)-ma). [Latin] Extraordinary diligence that a head
of a family habitually exercises in business. -Also
termed diligentia exacta; diligentia boni patrisfamil
ias. See extraordinary diligence under DILIGENCE.
diligentia media (dil-i-jen-shee-a mee-dee-a). [Law
Latin1Scots law. Middle level ofdiligence; the level of
diligence that a person ofordinary prudence exercises
in his or her own affairs. Also termed diligentia
quam suis rebus (dil-a-jen-shee- a kwam s[y]oo-is
ree-bas). See ordinary diligence under DILIGENCE.
diligentia quam suis rebus. See diligel1tia media.
exacta diligentia (eg-zak-ta dil-a-jen-shee-a). [Latin]
Roman law. Great care.
diligent inquiry. A careful and good-faith probing to
ascertain the truth ofsomething.
diligiatus (da-Iij-ee-ay-tas), n. [fro Latin dis-"apart" +
Zigius "under legal protection"] A person cast out ofthe
law's protection; an outlaw.
Dillon's rule. The doctrine that a unit oflocal govern
ment may exercise only those powers that the state
expressly grants to it, the powers necessarily and fairly
implied from that grant, and the powers that are indis
pensable to the existence of the unit of local govern
ment. _ For the origins of this rule, see 1John F. Dillon,
The Law ofMunicipal Corporations 89, at 115 (3d ed.
1881). [Cases: Municipal Corporations
dilution. (17c) 1. 'The act or an instance ofdiminishing a
thing's strength or lessening its value. 2. Corporations.
The reduction in the monetary value or voting power
ofstock by increasing the total number ofoutstanding
Dilution Act 524
shares. 3. Constitutional law. The limitation of the
effectiveness of a particular group's vote by legislative
reapportionment or political gerrymandering . Such
dilution violates the Equal Protection Clause. Also
termed vote dilution. [Cases: Constitutional Law C'-:::'
3658.J 4. Trademarks. "The impairment of a famous
trademark's strength, effectiveness, or distinctiveness
through the use of the mark on an unrelated product,
usu. blurring the trademark's distinctive character or
tarnishing it with an unsavory association . Trade
mark dilution may occur even when the use is not com
petitive and when it creates no likelihood of confusion.
The elements of trademark dilution are (1) ownership
ofa famous mark and (2) actual dilution. But a plaintiff
does not have to prove actual loss of sales or profits.
Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 123
S.Ct. 1115 (2003). See BLURRING; TARNISHMENT. [Cases:
Trademarks C=> 1458.]
Dilution Act. See FEDERAL TRADEMARK DILUTION ACT.
dilution doctrine. Trademarks. The rule protect
ing a trademark from a deterioration in strength, as
when a person seeks to use the mark for an unrelated
product.
dimidietas (dim-<l-dI-<l-tas), n. [Law Latin] Hist. Half of
something; a moiety.
dimidium (di-mid-ee-;}m), n. [Latin "half"] Hist. 1. Half;
a half -as in dimidium unius libratae ("half a pound").
2. An undivided halfofsomething.
dimidius (di-mid-ee-as), adj. [Latin "half"] Hist. 1. Half;
doubled. 2. Loosely, incomplete.
diminished capacity. See CAPACITY (3).
diminished responsibility. See diminished capacity
under CAPACITY (3).
diminutio. See DEMINt:TIO.
diminution (dim-a-n[yJoo-sh<ln), n. (l4c) 1. The act or
process ofdecreasing, lessening, or taking away. 2. An
incompleteness or lack ofcertification in a court record
sent from a lower court to a higher one for review. 3.
Trademarks. BLURRING. -diminish (for sense 1), vb.
diminution-in-value method. (1980) A way ofcalculat
ing damages for breach ofcontract based on a reduction
in market value that is caused by the breach. [Cases:
Damages C=> 123.]
dimissoriae litterae (dim-<l-sor-ee-ee lit-<lr-ee), n.
[Latin "dimissory letters"] Eccles. law. See DIMISSORY
LETTERS.
dimissory letters (dim-a-sor-ee). 1. Hist. Eccles. law. Doc
uments allowing a clergy member to leave one diocese
for another. 2. Eccles. law. Documents provided by one
bishop to enable another bishop to ordain a candidate
already ordained in the former bishop's diocese.
dimpled chad. See CHAD.
diocesan (dr-os-;}-san), adj. Ofor belonging to a diocese;
of or relating to the relationship between a bishop and
the clergy within the diocese.
diocesan court. See COt:RT. diocesan mission. A mission performing its work in a
single diocese.
diocesan synod. See SYNOD.
diocese (dl-<l-Sees or -sis). 1. Roman law. A division of
the later Roman empire into groups of provinces. 2.
Eccles. law. A territorial unit of the church, governed
by a bishop, and further divided into parishes. 3. Eccles.
law. A bishop's jurisdiction . Several dioceses together
are governed by an archbishop.
dioichia (dI-oy-kee-a), n. [fro Latin diocesis "a diocese"]
A district over which a bishop exercises his spiritual
functions.
DIP. abbr. DEBTOR-I"'-POSSESSION.
diploma. 1. Roman law. A letter giving permission to
use the imperial post. 2. Hist. A royal charter; letters
patent. 3. A document that evidences or memorializes
graduation from a school or society. Cf. DEGREE (6).
[Cases: Schools (;::::) 178.]4. A document that evidences
a license or privilege to practice a profession, such as
medicine.
diplomacy, n. Int'llaw. 1. The art and practice of con
ducting negotiations between national governments.
open diplomacy. Diplomacy carried on with free access
to interested observers and members ofthe press.
parliamentary diplomacy. The negotiations and dis
cussions carried out in international organizations
according to their rules ofprocedure.
secret diplomacy. Diplomacy carried on behind closed
doors. Also termed quiet diplomacy.
shuttle diplomacy. Diplomatic negotiations assisted by
emissaries, who travel back and forth between nego
tiating countries . In legal contexts, the term usu.
refers to a similar approach used by a mediator in
negotiating the settlement ofa lawsuit. The mediator
travels back and forth between different rooms, one
ofwhich is assigned to each side's decision-makers
and counsel. The mediator relays offers and demands
between the rooms and, by conferring with the parties
about their positions and about the uncertainty ofliti
gation, seeks to reach an agreed resolution ofthe case.
The mediator does not bring the parties together in
the same room.
2. Loosely, foreign policy. 3. The collective functions
performed by a diplomat. diplomatic, adj.
diplomat, n.
diplomatic, n. See DIPLOMA TICS.
diplomatic agent. See AGENT (2).
diplomatic bag. See DIPLOMATIC POUCH.
diplomatic corps. Int'llaw. The ambassador and other
diplomatic personnel assigned by their government to
a foreign capital.
diplomatic immunity. See IMMUNITY (1).
diplomatic pouch. 1. A bag containing official corre
spondence, documents, or articles intended exclu
sively for official communications of a nation with its
525
missions, consular posts, or delegations. 2. The contents
ofthe bag. -Also termed diplomatic bag; valise diplo
matique.
diplomatic protection. Protection given by one coun
try's representatives to a person, usu. its citizen, against
another country's alleged violation of international
law.
"The term diplomatic protection is not altogether precise.
First, not only diplomatic agents and missions and other
foreign offices may and do exercise diplomatic protection,
but also, at a different level, consuls, and, although very
rarely, military forces. Secondly, the term diplomatic pro
tection does not clearly denote the boundary line to other
diplomatic activities for the benefit of individuals, such as
mere promotion of interests in one's own nationals in a
foreign State, or friendly intercessions with foreign authori
ties_ Thus, diplomatic or consular actions to obtain conces
sions or other government contracts for nationals from
the receiving State, or the arrangement of legal defense
for ajustly imprisoned national are not diplomatic protec
tion in our sense; they are usually neither directed against
the other State nor based on a real or alleged violation of
international law_ All these last-mentioned activities may
be called diplomatic protection only if the term is taken in
a very broad sense." William Karl Geck, "Diplomatic Protec
tion." in 1 Encyclopedia of Public International Law 1046
(1992).
diplomatic relations. Int'llaw. The customary form of
permanent contact and communication between sov
ereign countries. [Cases: Ambassadors and Consuls
(';::>3; International Law C:::::> 10-10.2.]
diplomatic representation. See REPRESENTATION (5).
diplomatics. The science of deciphering and authenti
cating ancient writings . The principles were largely
developed by the Benedictine Dom Mabillon in his
1681 work entitled De re diplomatica. -Also termed
diplomatic (n.).
"Diplomatics, the science derived from the study of ancient
diplomas, so called from being written on two leaves, or
on double tablets. The Romans used the term more spe
cially for the letters of license to use the publiC convey
ances provided at the different stations, and generally for
public grants. Subsequently it attained a more extended
signification, and in more modern times has been used
as a general term for anCient imperial and ecclesiastical
acts and grants, public treaties, deeds of conveyance,
letters, wills, and similar instruments, drawn up in forms
and marked with peculiarities varying with their dates and
countries. With the revival of literature, the importance of
such documents in verifying facts and establishing public
and private rights led to their being brought together
from the historical works and the monastic registers in
which they had been copied, or, in rarer instances, from
public and ecclesiastical archives where the originals were
still preserved, Then arose questions of authenticity, and
doubts of the socalled originals; disputants defended or
condemned them; and, in order to establish principles for
distinguishing the genuine from the forged, treatises were
written on the whole subject of these diplomas." 7 Encyclo
paedia Britannica 220 (9th ed. 1907).
Diplomatic Security Service. See BUREAU OF DIPLO
MATIC SECURITY.
diptych (dip-tik), n. Latin diptycha fro Greek diptycha
"two-leaved"] 1. Roman law. Two tablets usu. made of
wood or metal and tied with string through holes at
the edges so that they could fold over (like a book with direct action
two leaves) . Diptychs were often used to send letters,
and the text was sometimes written using a stylus, once
on the inside waxed leaves and again on the outside,
so that it could be read without opening the tablets.
2. Hist. Eccles. law. Tablets used by the church, esp. to
register names of those making supplication, and to
record births, marriages, and deaths. 3. Hist. Eccles.
law. The registry ofthose names.
"The recitation of the name of any prelate or civil ruler
in the diptychs was a recognition of his orthodoxy; its
omission, the reverse. The mention of a person after death
recognized him as having died in the communion of the
church, and the introduction of his name into the list of
saints or martyrs constituted canonization. In liturgics the
diptychs are distinguished |
his name into the list of
saints or martyrs constituted canonization. In liturgics the
diptychs are distinguished as rhe diptychs ofthe living and
the diprychs of the dead, the latter induding also the com
memoration of the saints .... In the Western Church the
use of the diptychs died out between the ninth and the
twelfth century; in the Eastern Church it still continues." 2
The Century Dictionary and Cyclopedia (1895).
"Diptychs were used in the time of the Roman empire for
sending letters .... The consula and quaestors used, on
assuming office, to send diptychs containing their names
and portraits to their friends .... The early Christians used
tablets thus made in the celebration of divine worship __ . ,
They were placed on ... the pulpits, or reading desks,
which may still be seen in ancient basilicas at the west end
of the choir or presbytery; and from them were read to the
congregation of the faithful the names of the celebrating
priests, of those who occupied the superior positions in the
Christian hierarchy, of the saints, martyrs, and confessors,
and, in process of time, also of those who had died in the
faith.... The inscription on the diptychs of deaths and
baptisms, naturally led to the insertion of dates, and the
diptychs seem thus to have grown into calendars, and to
have been the germ from which necrologies, lists of saints,
and almanacs have been developed," 7 Encyclopaedia Bri
tannica 22324 (9th ed. 1907),
dirationare (di-ray-shee-a-nair-ee), vb. [fro Latin dis
"thoroughly" + ratiocinari "to reason"] Hist. 1. To
prove; to establish one's right. 2. To disprove; to refute
(an allegation).
direct (di-rekt), adj. 1. (Of a thing) straight; undeviating
<a direct line>. 2. (Of a thing or a person) straightfor
ward <a direct manner> <direct instructions>. 3. Free
from extraneous influence; immediate <direct injury>.
4. Ofor relating to passing in a straight line ofdescent,
as distinguished from a collateral line <a direct descen
dant> <a direct ancestor>. 5. (Of a political action)
effected by the public immediately, not through repre
sentatives <direct resolution> <direct nomination>.
direct, n. See DIRECT EXAMINATION.
direct, vb. (I4c) 1. To aim (something or someone). 2. To
cause (something or someone) to move on a particular
course. 3. To guide (something or someone); to govern.
4. To instruct (someone) with authority. 5. To address
(something or someone).
direct action. (1912) 1. A lawsuit by an insured against
his or her own insurance company rather than against
the tort feasor and the tortfeasor's insurer. 2. A lawsuit
by a person claiming against an insured but suing the
insurer directly instead of pursuing compensation indi
rectly through the insured. [Cases: Insurance C=-3542.]
3. A lawsuit to enforce a shareholder's rights against a
526 direct-action statute
corporation. Cf. DERIVATIVE ACTION (1). [Cases: Cor
porations C=>202.)
direct-action statute. A statute that grants an injured
party direct standing to sue an insurer instead of the
insured tortfeasor. Under Rhode Island's direct
action statute, for example, an injured party may
bring a direct action against an insurer when good
faith efforts to serve process on the insured are unsuc
cessful. These statutes exist in several states, including
Alabama, Arkansas, Louisiana, Minnesota, New York,
Pennsylvania, and Wisconsin. [Cases: Insurance
3542.]
direct adoptiou. See private adoption under
ADOPTION.
direct affinity. See AFFINITY.
direct aggression. See AGGRESSION.
direct and proximate cause. See proximate cause under
CAUSE (1).
direct appeal. See APPEAL.
direct attack. 1. An attack on a judgment made in the
same proceeding as the one in which the judgment was
entered; speci., seeking to have the judgment vacated
or reversed or modified by appropriate proceedings in
either the trial court or an appellate court . Examples
ofdirect attacks are motions for new trial and appeals.
Cf. COLLATERAL ATTACK. 2. The taking ofindependent
proceedings in equity to prevent the enforcement of a
judgment.
direct beneficiary. See intended beneficiary under BEN
EFICIARY.
direct cause. See proximate cause under CAUSE (1).
direct charge-off accounting method. See ACCOUNT
INGMETHOD.
direct confession. See CONFESSION.
direct confusion. See CONFUSION.
direct contempt. See CONTEMPT.
direct conversion. See CONVERSION (2).
direct cost. See COST (1).
direct damages. See general damages under DAMAGES.
direct deposit. See DEPOSIT (2).
direct economic loss. See ECONOMIC LOSS.
directed verdict. See VERDICT.
direct estoppel. See COLLATERAL ESTOPPEL.
direct evidence. See EVIDENCE.
direct examination. (1859) The first questioning of a
witness in a trial or other proceeding, conducted by
the party who called the witness to testify. Often
shortened to direct. -Also termed examination-in
chief Cf. CROSS-EXAMINATION; REDIRECT EXAMINA
TION. [Cases: Witnesses C=>224-245.J
direct infringement. See INFRINGEMENT.
direct injury. See INJURY.
direct interest. See INTEREST (2). direction (di-rek-sh;m). 1. The course taken in relation
to the point toward or away from which something or
someone is moving; a point to or from which a person
or thing moves <the storm moved in a northerly direc
tion>. 2. The course on which something is aimed <the
direction of the trial>. 3. An act of guidance <under
the chair's direction>. 4. An order; an instruction on
how to proceed <the judge's direction to the jury>. See
JURY INSTRUCTION. 5. The address to the court con
tained on a bill of equity <the direction on the bill>.
[Cases: Equityc=> 131.) 6. A board of directors; a board
ofmanagers <the direction met on Wednesday>.
directive. See ADVANCE DIRECTIVE.
Directive Harmouizing the Term of Copyright and
Certaiu Related Rights. Copyright. A 1993 European
Commission initiative setting the term of most copy
right protection at the life ofthe author plus 70 years.
The directive extended coverage in most member coun
tries to match that of Germany, whose term was the
longest on the Continent. In 2006, it was repealed. Its
provisions were incorporated into the Directive on the
Term of Protection of Copyright and Certain Related
Rights. -Also termed Duration Directive.
Directive on Certain Aspects ofElectronic Commerce
in the Internal Market. Copyright. A 2000 European
Commission initiative that harmonizes members' laws
governing commercial use of the Internet, including
electronic contracts, the liability ofservice providers,
unsolicited commercial e-mail, and related issues.
Also termed Electronic Commerce Directive; E-Com
merce Directive.
Directive on Rental, Lending and Certain Neighboriug
Rights. Copyright. A 1992 European Commission ini
tiative setting rules for reimburSing copyright owners
for home rental and public lending of videotapes and
other copies of works, and establishing the rights of
performers, producers, broadcasters, and cable dis
tributors. Also termed Rental and Related Rights
Directive; Rental Directive.
Directive on the Coordination of Certain Rules
Concerning Copyright and Neighbouriug Rights
Applicable to Satellite Broadcasting and Cable
Retransmission. Copyright. A 1993 European Com
mission initiative requiring members, among other
things, to (1) recognize the right of a copyright owner
to decide whether the work may be relayed by either
cable or satellite, and (2) define the "place" ofa satellite
broadcast as the location where the Signal originates.
Also termed Cable and Satellite Directive.
Directive ou the Legal Protection of Computer
Programs. Copyright. A 1991 European Commis
sion initiative requiring members to protect computer
software by copyright rather than by patent or some sui
generis set oflegal rights . The purpose ofthe Directive
was to harmonize copyright laws among the members
of the European Commission. It standardized the
degree of originality required for software to qualify
for copyright protections. -Also termed Computer
Programs Directive; Software Directive.
Directive on the Legal Protection ofDatabases. Copy
right. A 1996 European Commission initiative that
sets uniform copyright protection among members for
databases of original content and requires a sui generis
system of protection for databases that do not qualify
for copyright protection because their content is not
original. Also termed Database Directive.
Directive on the Term of Protection ofCopyright and
Certain Related Rights. See DIRECTIVE HARMONIZ
ING THE TERM OF COPYRIGHT AND CERTAIN RELATED
RIGHTS.
directive to physicians. See LIVING WILL.
direct line:See LINE.
direct-line descent. See lineal descent under DESCENT.
direct loss. See LOSS.
directly, adv. 1. In a straightforward manner. 2. In a
straight line or course. 3. Immediately.
direct notice. See NOTICE.
director (di-rek-tdr). (15c) 1. One who manages, guides,
or orders; a chief administrator. 2. A person appointed
or elected to sit on a board that manages the affairs ofa
corporation or other organization by electing and exer
cising control over its officers. Also termed trustee.
See BOARD OF DIRECTORS. Cf. OFFICER (1).
affiliated director. See outside director.
class director. 1. A director whose term on a corpo
rate board is staggered with those of the other direc
tors to make a hostile takeover more difficult. 2. A
director elected or appointed to a corporate board to
represent a special interest group, e.g., the preferred
stockholders.
dummy director. A board member who is a mere fig
urehead and exercises no real control over the cor
poration's business. -Also termed accommodation
director; nominal director.
inside director. A director who is also an employee,
officer, or major shareholder of the corporation.
Corporations (;::::J 310(1).]
interlocking director. A director who simultaneously
serves on the boards oftwo or more corporations that
deal with each other or have allied interests.
outside director. A nonemployee director with little or
no direct interest in the corporation. -Also termed
affiliated director. [Cases; Corporations (;::::>310(1).]
provisional director. A director appointed by a court
to serve on a close corporation's deadlocked board
ofdirectors.
public director. A director elected from outside a cor
poration's shareholders or an organization's member
ship to represent the public interest.
direct order ofalienation. (1852) Real estate. The prin
ciple that a grantee who assumes the debt on a mort
gaged property is required to pay the mortgage debt
if the original mortgagor defaults. [Cases; Mortgages Director of Public Prosecutions. An officer (usu. a bar
rister or solicitor often years' standing) who advises
the police and prosecutes criminal cases in England,
Wales, and Northern Ireland under the supervision of
the Attorney General. This title, or a similar one, is
used in various countries, including Australia, Canada,
China, Northern Ireland, the Republic ofIreland, and
South Africa. In Scotland, the equivalent officer is the
procurator fiscal.
Director of the Mint. An officer appointed by the Pres
ident, with the advice and consent of the Senate, to
control and manage the U.S. Mint and its branches.
[Cases: United States
Director of the United States Patent and Trademark
Office. The presidential appointee in charge ofthe U.S.
Patent and Trademark Office . Until a 2000 reorga
nization, the PTO chief was the Commissioner of
Patents and Trademarks. The Director is also the Under
Secretary of Commerce for Intellectual Property.
Formerly termed Commissioner ofPatents and Trade
marks. [Cases; Patents
directors' and officers' liability insurance. See INSUR
ANCE.
directory, n. 1. A book containing an alphabetical list of
names, addresses, and telephone numbers, esp. those
of a city's or area's residents and businesses. [Cases;
Telecommunications 2. Any organization's
publication containing information on its members
or business, such as a legal directory. 3. Eccles. law. A
church's book of directions for conducting worship.
One of the primary directories is the Directory for
the Public Worship ofGod, prepared by the Assembly
of Divines in England in 1644 to replace the Book of
Common Prayer, which had been abolished by Par
liament (and was later reinstated). The Directory was
ratified by Parliament in 1645 and adopted by the
Scottish Parliament and General Assembly of the
Church of Scotland that same year. A directory in
the Roman Catholic Church contains instructions
for saying the mass and offices each day of the year.
4. A small governing body; specif., the five-member
executive body that governed France from 1795-1799
during the French Revolution until it was overthrown
by Napoleon and succeeded by the consulate.
directory call. (1812) Property. In a land description, a
general description of the areas in which landmarks or
other calls are found. See CALL (5); LOCATIVE CALLS.
directory provision. A statutory or contractual sentence
or paragraph in which a directory requirement appears.
[Cases: Statutes
directory requirement. (1865) A statutory or contrac
tual instruction to act in a way that is advisable, but
not absolutely essential in contrast to a mandatory
requirement. A directory requirement is frequently
introduced by the word should or, less frequently, shall
(which is more typically a mandatory word). [Cases: |
frequently
introduced by the word should or, less frequently, shall
(which is more typically a mandatory word). [Cases:
Statutes (;..-.. 227.)
directory statute. See STATUTE.
528 directory trust
directory trust. See TRUST.
direct-participation program. An investment vehicle
that is financed through the sale of securities not
traded on an exchange or quoted on NASDAQ and
that provides flow-through tax consequences to the
investors.
direct payment. See PAYMENT.
direct placement. 1. The sale by a company, such as
an industrial or utility company, of an entire issue of
securities directly to a lender (such as an insurance
company or group ofinvestors), instead ofthrough an
underwriter. _ This type of offering is exempt from SEC
filing requirements. 2. PRIVATE PLACEMENT (1).
direct-placement adoption. See private adoption under
ADOPTION.
direct possession. See immediate possession under pos-
SESSION.
direct question. See QUESTION (1).
direct-reduction mortgage. See MORTGAGE.
direct selling. 1. Selling to a customer without going
through a dealer. 2. Selling to a retailer without going
through a wholesaler.
direct skip. (1988) Tax. A generation-skipping transfer
of assets, either directly or through a trust. - A direct
skip may be subject to a generation-skipping transfer
tax either a gift tax or an estate tax. IRC (26 USCA)
2601-2602. See GENERATION-SKIPPING TRANSFER;
generation-skipping transfer tax under TAX; SKIP
PERSON. [Cases: Internal Revenue (:::::>4224.]
direct tax. See TAX.
Direct Tax Clauses. The provisions in the U.S. Consti
tution requiring direct taxes to be apportioned among
the states according to their respective numbers (U.S.
Const. art. I, 2, d. 3) and prohibiting capitation or
other direct taxes except in proportion to the census
(U.S. Const. art. 1, 9, d. 4). -An additional provi
sion of Article I, 2 concerning computation of taxes
is affected by 2 of the Fourteenth Amendment, and
both clauses are affected by the Sixteenth Amendment
concerning income taxes. [Cases: Internal Revenue (:::::>
3059.J
dired trust. See express trust under TRUST.
diribitores (di-rib-Cl-tor-eez), n. pI. [Latin "sorters of
votes"] Roman law. Officers who distributed voting
ballots to the citizens in a comitia. See COMITIA.
diriment impediment. See IMPEDIMENT.
diritto connessi. [Italian] NEIGHBORING RIGHT.
diritto d' autore. [Italian] AUTHOR'S RIGHT.
dirt-for-debt trausfer. A transaction in which a
bankrupt debtor satisfies all or part of a secured debt
by transferring the collateral to the creditor. [Cases:
Bankruptcy (:::::> 3564.]
DISA. abbr. DEFENSE INFORMATION SYSTEMS AGENCY.
disability. (16c) 1. The inability to perform some function;
esp., the inability ofone person to alter a given relation with another person. 2. An objectively measurable con
dition of impairment, physical or mental <his disability
entitled him to workers' -compensation benefits>.
Also termed handicap; incapacity. [Cases: Civil Rights
(:::::> 1019, 1218; Workers' Compensation (:::::>802.]
"The Supreme Court has cautioned that [the Americans
with Disabilities Act] requires that disabilities be evaluated
'with respect to an individual' and must be determined
based on whether an impairment substantially limits
the 'major life activities of such individual.' The Court
conceded that 'some impairments may invariably cause
a substantial limitation of a major life activity,' but '[t]he
determination of whether an individual has a disability is
not necessarily based on the name or diagnosis of the
impairment the person has, but rather on the effect ofthat
impairment on the life of the individual.' As a result, courts
are reluctant to characterize any particular impairment as
a per se disability under ADA. And the fact that an impair
ment is considered to be a disability under a different set
of criteria for some purpose other than the ADA has no
bearing on the determination of whether an individual is
disabled within the meaning of ADA." Harold S. LewisJr. &
Elizabeth J. Norman, Employment Discrimination Law and
Practice 485-86 (2001).
developmental disability. (1973) An impairment
of general intellectual functioning or adaptive
behavior.
partial disability. A worker's inability to perform all
the duties that he or she could do before an accident
or illness, even though the worker can still engage
in some gainful activity on the job. [Cases: Workers'
Compensation (:::::>856-862.]
permanent disability. (1804) A disability that will
indefinitely prevent a worker from performing some
or all of the duties that he or she could do before an
accident or illness. [Cases: Workers' Compensation
C=)863,864.]
physical disability. (1826) An incapacity caused by a
physical defect or infirmity, or by bodily imperfection
or mental weakness.
temporary disability. (18c) A disability that exists until
an injured worker is as far restored as the nature of
the injury will permit. [Cases: Workers' Compensa
tion (:::::>863, 864.]
temporary total disability. Total disability that is not
permanent.
total disability. (18c) A worker's inability to perform
employment-related duties because of a physical or
mental impairment. [Cases: Workers' Compensation
(:::::>846-855.]
3. Incapacity in the eyes of the law <most of a minor's
disabilities are removed when he or she turns 18>.
Also termed incapacity.
canonical disability. A canonical impediment (usu.
impotence). See canonical impediment under IMPEDI
MENT.
civil disability. (18c) The condition of a person who
has had a legal right or privilege revoked as a result
ofa criminal conviction, as when a person's driver's
license is revoked after a DWI conviction. Cf. civil
death (2) under DEATH.
529
disability benefits. See DISABILITY COMPENSATION.
disability clause. Insurance. A life-insurance-policy pro
vision providing for a waiver of premiums during the
policyholder's period ofdisability, and sometimes pro
viding for monthly payments equal to a percentage of
the policy's face value. [Cases: Insurance C=>2035.]
disability compensation. Payments from public or
private funds to a disabled person who cannot work,
such as social-security or workers'-compensation
benefits. -Also termed disability benefits. [Cases:
Social Security and Public Welfare C=> 140.5-140.85;
Workers' Compensation ~'-:)836-902.]
disability insurance. See INSURANCE.
disability retirement plan. See EMPLOYEE BENEFIT
PLAN.
disable, vb. 1. To deprive (someone or something) of
the ability to function; to weaken the capability of
(someone or something). 2. To impair; to diminish. 3.
To legally disqualify (someone); to render (someone)
legally incapable.
disabled person. See PERSON (1).
disablement, rl. (15c) 1. The act of incapacitating or
immobilizing. 2. The imposition of a legal disability.
disabling restraints. (1963) Limits on the alienation
of property. -These restraints are sometimes void as
being against public policy. [Cases: Perpetuities
6(1).]
disabling statute. See STATUTE.
disadvocare (dis-ad-v;:;-kair-ee), vb. [Law LatinJ To deny;
to disavow.
disaffirm (dis-<l-brm), vb. (16c) 1. To repudiate; to
revoke consent; to disclaim the intent to be bound by an
earlier transaction. 2. To declare (a voidable contract)
to be void.
. disaffirmance (dis-;:;-f;um-;:;nts). 1. An act of denial; a
repudiation, as of an earlier transaction. [Cases: Con
tracts C::>272.] 2. A declaration that a voidable contract
(such as one entered into by a minor) is void. Also
termed disaffirmation. [Cases: Infants
"Disaffirmance is an operative act whereby the legal rela
tions created by an infant's contract are terminated and
discharged and other !egal relations substituted. Inasmuch
as the infant's executory promise does not operate to
create any legal duty in him (the infant being at all times
at liberty or privileged not to perform). his disaffirmance
is not the discharge of such a duty. A return promise by an
adult, however, creates a legal duty and the infant has a
correlative right in personam. A disaffirmance terminates
these." William R. Anson, Principles of the Law ofContract
181 (Arthur L. Corbin ed., 3d Am. ed. 1919).
disafforest (dis-<l-for-ast or -fahr-ast), vb. [fr. French
desaforester] Hist. To free lands from the restrictions of
the forest laws and retu rn them to the status ofordinary
lands. -Also termed deafforest.
disagreement. 1. A difference ofopinion; a lack ofagree
ment. 2. A quarrel. 3. An annulment; a refusal to accept
something, such as an interest in an estate. disbarment
disallow, vb. (14c) 1. To refuse to allow (something). 2.
To reject (something).
disalt (dis-awlt), vb. Hist. To disable (a person).
disappeared person. (1944) 1. A person who has been
absent from home for a specified number ofcontinuous
years (often five or seven) and who, during that period,
has not communicated with the person most likely
to know his or her whereabouts. See SEVEN-YEARS'
ABSENCE RULE; MISSING PERSON. [Cases: Absentees
2.] 2. Human-rights law. A person who has been
illegally detained or kidnapped, often by governmental
authorities or soldiers, and whose current whereabouts
and condition are unknown and undiscoverable.
disappearing quorum. See QUORUM.
disappropriation. 1. Eccles. law. The alienation ofchurch
property from its original use; the severance of property
from church ownership or possession. 2. The release of
property from individual ownership or possession.
disapprove, vb. 1. To pass unfavorable judgment on
(something). 2. To decline to sanction (something).
disarmament. Int'llaw. The negotiated or voluntary
reduction of military arms, esp. nuclear weapons, to a
greatly reduced level or to nil. Cf. ARMS CONTROL.
disaster. A calamity; a catastrophic emergency.
disaster area. (1953) A region officially declared to have
suffered a catastrophic emergency, such as a flood or
hurricane, and therefore eligible for government aid.
[Cases: United States C=>82(5).]
disaster loss. See LOSS.
Disaster Relief Act. A federal statute that provides a
means by which the federal government can help state
and local governments to relieve suffering and damage
resulting from disasters such as hurricanes, tornadoes,
floods, earthquakes, volcanic eruptions, landslides,
mudslides, drought, fire, and exploSions. - A 1974
amendment established a process for the President to
declare affected communities disaster areas. [Cases:
United States C=>82(5).]
disavow (dis-;J-vow), vb. To disown; to disclaim knowl
edge of; to repudiate <the company disavowed the acts
of its agent>. disavowal, n.
disbarment, rl. (1862) The action of expelling a lawyer
from the bar or from the practice of law, usu. because
of some disciplinary violation. -One who has passed
the bar, been called to the bar, or been admitted to the
bar is privileged to stand inside the wooden barrier that
separates the gallery from the actual courtroom, par
ticularly the judge's bench, and conduct business with
the court. So this term literally describes the loss ofthe
privilege. Although disbarment is typically a perma
nent removal from the practice oflaw, in some jurisdic
tions a disbarred attorney may (after a certain period)
petition for readmission. In England and Wales, only
a barrister is disbarred; a solicitor is struck off the roll,
so the expulsion of a solicitor is termed striking off the
roll. See STRUCK OFF. [Cases: Attorney and Client C=>
59.14.] -disbar, vb.
disbocatio (dis-bd-kay-shee-oh), n. [fro Law Latin dis
+ boscus "wood"] Rist. The conversion of forest to
pasture.
disbursement (dis-bJrs-m,mt), n. The act of paying out
money, commonly from a fund or in settlement of a
debt or account payable <dividend disbursement>.
disburse, vb.
DISC. abbr. DOMESTIC INTERNATIONAL SALES CORPO
RATION.
discarcare (dis-kahr-kair-ee), vb. [fro Latin dis-+ carcare
"to charge"] Rist. To unload (cargo), uSU. from a ship.
Also ten:ned discargare.
disceptatio causae (di-sep-tay-shee-oh kaw-zee). [Latin
"debate about a case"] Roman law. The argument by the
advocates ofboth sides of a dispute.
|
Latin
"debate about a case"] Roman law. The argument by the
advocates ofboth sides of a dispute.
discharge (dis-chahrj), n. (I5c) 1. Any method by which
a legal duty is extinguished; esp., the payment of a
debt or satisfaction ofsome other obligation. 2. Bank
ruptcy. The release of a debtor from monetary obliga
tions upon adjudication ofbankruptcy; DISCHARGE IN
BANKRUPTCY. Cf. RELEASE (1). [Cases: BankruptcyC=>
3251.] 3. The dismissal of a case. 4. The canceling or
vacating of a court order. 5. The release of a prisoner
from confinement.
unconditional discharge. (I8c) 1. A release from an
obligation without any conditions attached. 2. A
release from confinement without any parole require
ments to fulfill.
6. The relieving ofa witness, juror. or jury from further
responsibilities in a case. 7. The firing of an employee.
[Cases: Labor and Employment C=>825.)
constructive discharge. (1830) A termination of
employment brought about by making the employee's
working conditions so intolerable that the employee
feels compelled to leave. [Cases: Civil Rights C=>1123;
[Cases: Labor and Employment C=>825.)
"Most constructive discharges fall into one of two basic
fact patterns. First, the employer can cause a constructive
discharge by breaching the employee's contract of employ
ment in some manner short of termination. Second, the
employer can make working conditions so intolerable that
the employee feels compelled to qUit." Mark A. Rothstein
et aI., Employment Law 9.7, at 539 (1994).
retaliatory discharge. (1967) A discharge that is made
in retaliation for the employee's conduct (such as
reporting unlawful activity by the employer to the
government) and that clearly violates public policy.
Federal and state statutes may entitle an employee
who is dismissed by retaliatory discharge to recover
damages. [Cases: Civil Rights C=> 1247,1249(2); Labor
and Employment C=>771.)
wrongful discharge. (1825) A discharge for reasons that
are illegal or that violate public policy. [Cases: Civil
Rights C=> 1122; Labor and Employment
8. The dismissal of a member of the armed services
from military service <the sergeant was honorably dis-
c.harged>. [Cases: Armed Services 22.] administrative discharge. A military-service discharge
given by administrative means and not by court-mar
tial.
bad-conduct discharge. A punitive discharge that a
court-martial can give a member ofthe military, usu.
as punishment for repeated minor offenses. -Abbr.
BCD.
dishonorable discharge. The most severe punitive dis
charge that a court-martial can give to a member of
the military . A dishonorable discharge may result
from conviction for an offense recognized in civilian
law as a felony or ofa military offense requiring severe
punishment. Only a general court-martial can give a
dishonorable discharge.
general discharge. One of the administrative dis
charges given to a member of the military who does
not qualify for an honorable discharge.
honorable discharge. A formal final judgment passed
by the government on a soldier's entire military
record, and an authoritative declaration that he or
she has left the service in a status of honor. Full
veterans' benefits are given only to a person honor
ably discharged.
undesirable discharge. One of the administrative dis
charges given to a member of the military who does
not qualify for an honorable discharge.
9. Parliamentary law. A motion by which a delibera
tive assembly, having referred a matter to a commit
tee, takes the matter's further consideration out ofthe
committee and back into its own hands. Also termed
discharge a committee; withdrawal. -discharge (dis
chahrj), vb.
dischargeability proceeding. Bankruptcy. A hearing to
determine whether a debt is dischargeable or is subject
to an exception to discharge. 11 USCA 523. [Cases:
Bankruptcy C=>3395.)
dischargeable claim. Bankruptcy. A claim that can be
discharged in bankruptcy. [Cases: Bankruptcy
3341-3378.]
discharged contract. See void contract (2) under
CONTRACT.
discharge hearing. Bankruptcy. A hearing at which the
court informs the debtor either that a discharge has
been granted or the reasons why a discharge has not
been granted. See REAFFIRMATION HEARING. [Cases:
Bankruptcy (;--::>3318.1.]
discharge in bankruptcy. (1820) 1. The release ofa debtor
from personal liability for pre bankruptcy debts; specif.,
discharge under the United States Bankruptcy Code.
[Cases: BankruptcyC=>3251.]2. A bankruptcy court's
decree releasing a debtor from that liability.
discharging bond. See BOND (2).
disciplinary proceeding. (1900) An action brought to
reprimand, suspend, or expel a licensed professional or
other person from a profession or other group because
of unprofessional, unethical, improper, or illegal
conduct. A disciplinary proceeding against a lawyer
may result in the lawyer's being suspended or disbarred
from practice. [Cases: Licenses C=>38.]
disciplinary rule. (often cap.) (1890) A mandatory
regulation stating the minimum level of profeSSional
conduct that a professional must sustain to avoid being
subject to diSciplinary action. -For lawyers, the dis
Ciplinary rules are found chietly in the Model Code of
Professional Responsibility. -Abbr. DR. Cf. ETHICAL
CONSIDERATION. [Cases: Licenses
discipline, n. 1. Punishment intended to correct or
instruct; esp., a sanction or penalty imposed after an
official finding ofmisconduct. [Cases: Licenses C=>38.]
2. The punishment or penalties (often termed "sanc
tions") imposed by a disciplining agency on an attorney
who has breached a rule of professional ethics. _ Three
types of discipline are common: disbarment, suspen
sion, and reprimand (public or private). 3. Control
gained by enforcing compliance or order. 4. Military
law. A state of mind inducing instant obedience to a
lawful order, no matter how unpleasant or dangerous
such compliance might be. -discipline, vb. -disci
plinary, adj.
disclaimer, n. (15c) 1. A renunciation ofone's legal right
or claim; esp., a renunciation of a patent claim, usu.
to save the remainder of the application from being
rejected. 2. A repudiation of another's legal right or
claim. 3. A writing that contains such a renunciation or
repudiation. 4. RENUNCIATION (2). -disclaim, vb.
disclaimer ofwarranty. (1881) An oral or written state
ment intended to limit a seller's liability for defects
in the goods sold. _ In some circumstances, printed
words must be specific and conspicuous to be effec
tive. [Cases: Sales C=>267.]
patent disclaimer. See statutory disclaimer.
qualified disclaimer. (1889) 1. A disclaimer with a
restriction or condition attached. -In this sense it
is qualified because it carries the restriction or con
dition. 2. A person's refusal to accept an interest in
property so that he or she can avoid haVing to pay
estate or gift taxes. -To be effective under federal
tax law, the refusal must be in writing and must be
executed no later than nine months from the time
when the interest was created. In this sense, it is quali
fied in the sense of being within the lawful exemption.
IRC (26 USCA) 2518. [Cases: Internal Revenue (::::)
4177.20,4205.10; Taxation ~=:)3319.J
statutory disclaimer. Patents. A patent applicant's
amendment of a specification to relinquish one or
more claims to the invention. 35 USCA 253.
Before the statute was enacted, a Single invalid claim
was grounds for denying a patent. Also termed
patent disclaimer. See SPECIFICATION (3). [Cases:
Patents (::: 149, 154.]
terminal disclaimer. A patent applicant's statement
shortening the term of the patent. -To revive an
abandoned application for a design application or for
a utility or plant application filed before June 8, 1995,
the applicant must disclaim a period equal to the duration ofabandonment. A terminal disclaimer may
also be required in an application for an obvious vari
ation on an existing patent with a common inventor
or owner: to avoid a double-patenting rejection the
inventor agrees that both patents will expire on the
same day. 37 CFR 1.321. [Cases: Patents C=> 131.]
disclosed principaJ. See PRINCIPAL (1).
disclosure, n. (16c) 1. The act or process of making
known something that was previously unknown; a
revelation of facts <a lawyer's disclosure of a contlict
of interest>. See DISCOVERY.
defensive disclosure. See DEFENSIVE DISCLOSURE.
full disclosure. A complete revelation of all material
facts.
public disclosure ofprivatefacts. (1964) The public
revelation of some aspect of a person's private life
without a legitimate public purpose. -The disclosure
is actionable in tort if the disclosure would be highly
objectionable to a reasonable person. See INVASION
OF PRIVACY. [Cases: TortsC:::>350.J
voluntary disclosure ofoffense. A person's uncoerced
admission to an undiscovered crime. -Under the
federal sentencing gUidelines, a lighter sentence may
be allowed. See USSG 5K2.16. [Cases: Sentencing and
Punishment C=>861.]
2. The mandatory divulging ofinformation to a litiga
tion opponent according to procedural rules. Also
termed compulsory disclosure; automatic disclosure.
See DISCOVERY (2). [Cases: Federal Civil Procedure
':8::::>1261; Pretrial Procedure C=> 11.] disclose, vb.
disclosural, ad).
"Rule 26(a) [of the Federal Rules ofCivil Procedure] reflects
a shift away from the traditional method of obtaining dis
covery through the service of written demands toward
requiring automatic disclosure by the parties of informa
tion that would invariably be requested. The goal of auto
matic disclosure is the creation of a more efficient and
expeditious discovery process .... Rule 26(a)(1) provides
for the initial disclosure of specified information relating
to witnesses, documents, and insurance agreements.
Rule 26(a)(2) provides for the disclosure of information
regarding experts who may be used at trial. Rule 26(a)(3)
provides for specified pretrial disclosures regarding wit
nesses, evidence, and objections." Jay E. Grenig &Jeffrey S.
Kinsler, Handbook ofFederal Civil Discovery and Disclosure
1.15, at 65-66 (2d ed. 2002).
accelerated disclosure. See accelerated discovery under
DISCOVERY.
initial disclosure. Civil procedure. In federal practice,
the requirement that parties make available to each
other the follOWing information without first receiv
ing a discovery request: (1) the names, addresses, and
telephone numbers ofpersons likely to have relevant,
discoverable information, (2) a copy or description
of all relevant documents, data compilations, and
tangible items in the party's possession, custody,
or control, (3) a damages computation, and (4) any
relevant insurance agreements. Fed. R. Civ. P. 26(a)
(l)(A)-(D). [Cases: Federal Civil Procedure (;:::> 1261,
1272.]
532 Disclosure Document Program
3. Patents. A document explaining how an invention
works in sufficient detail for one skilled in the art to
be able to understand and duplicate the invention;
everything revealed about an invention in the patent
application, including drawings, descriptions, specifi
cations, references to prior art, and claims. An inven
tion disclosure statement is sometimes attested by a
knowledgeable witness, who signs and dates the dis
closure document to establish the inventor's identity
and the date of the invention before the patent appli
cation is prepared. An inventor can file a disclosure
document with the U.S. Patent and Trademark Office
before submitting a patent application, but the docu
ment's date has no relationship to the later application's
effective filing date. See ENABLEMENT REQUIREMENT.
Cf. ENABLING SOURCE; DEFENSIVE DISCLOSURE. [Cases:
Patents ~99.]4. Patents. PUBLICATION (1).
Disdosure Document Program. Patents. A C.S. Patent
and Trademark Office program allowing an inventor
to file a preliminary description ofan invention and
establish its date of conception before applying for a
patent. The document can help establish a date of
inventive effort for use in a later interference. Abbr.
DDP. Cf. PROVISIONAL PATENT APPLICATION. lCases:
Patents
discommon (dis-kom-;m), vb. 1. To deprive ofthe right
ofcommon (e.g., the right to pasture). 2. To deprive
(something, esp. land) ofcommonable character. A
person could discommon land by separating or enclos
ing it. 3. To deprive (someone) of the privileges ofa
place, such as the right to use common land or to enjoy
a church fellowship.
disconformity. See NEW MATTER.
discontinuance (dis-k;}n-tin-yoo-;mts), n. (1 |
See NEW MATTER.
discontinuance (dis-k;}n-tin-yoo-;mts), n. (14c) 1. The
termination of a lawsuit by the plaintiff; a voluntary
dismissal or nonsuit. See DISMISSAL; NONSUIT (1);
judgment ofdiscontinuance under rUDGMENT. [Cases:
Federal Civil Procedure 1691; Pretrial Procedure
(;:::)501.] 2. 'Ihe termination ofan estate-tail by a tenant
in tail who conveys a larger estate in the land than is
legally allowed. [Cases: Estates in Property ~12.]
"Such is ... the injury of discontinuance; which happens
when he who hath an estate-tail, maketh a larger estate
of the land than by law he is entitled to do: in which case
the estate is good, so far as his power extends who made
it. but no farther. As if tenant in tail makes a feoffment in
feesimple, or for the life of the feoffee, or in tail; all which
are beyond his power to make, for that by the common
law extends no farther than to make a lease for his own
life: the entry of the feoffee is lawful during the life of the
feoffer; but if he retains the possession after the death of
the feoffor, it is an injury, which is termed a discontinuance;
the ancient legal estate, which ought to have survived to
the heir in tail, being gone, or at least suspended, and for
a while discontinued." 3 William Blackstone, Commentaries
on the Laws ofEngland 171-72 (1768).
discontinuee, 11. A person whose acquisition of an
entailed estate causes a discontinuance of the fee tail
heirs' right to the estate. Cf. DISCONTINUOR.
discontinuing easement. See discontinuous easement
under EASEMENT. discontinuor, n. A tenant in tail whose conveyance of
the entailed estate causes a discontinuance. Cf. DIS
CONTINUEE.
discontinuous easement. See EASEME~-n.
discontinuous servitude. See discontinuous easement
under EASEMENT.
disconvenable (dis-k<}n-vee-n;}-b<}!), adj. [Law French]
Archaic. Unfit; improper.
discount, 11. (l7c) 1. A reduction from the full amount or
value ofsomething, esp. a price. 2. An advance deduc
tion ofinterest when a person lends money on a note,
bill ofexchange, or other commercial paper, result-
in its present value. See PRESENT VALUE. 3. The
amount by which a security's market value is below its
face value. Also termed bond discou n t. Cf. PREMIGM
(3). -discount, vb.
bulk discount. See volume discount.
cash discount. (1889) 1. A seller's price reduction in
exchange for an immediate cash payment. 2. A reduc
tion from the stated price ifthe bill is paid on or before
a specified date.
functional discount. 1. A supplier's price discount
given to a purchaser based on the purchaser's role
(such as warehOUSing or advertising) in the suppli
er's distributive system . This type ofdiscount typi
cally reflects the value ofservices performed by the
purchaser for the supplier. Ifa functional discount
constitutes a reasonable reimbursement for the pur
chaser's actual marketing functions, it does not con
stitute unlawful price discrimination and does not
violate antitrust laws. 2. A supplier's price discount
based on the purchaser's relative distance from the
supplier in the chain ofdistribution . For example,
a wholesaler or distributor usu. receives a greater
discount than a retailer.
quantity discount. See volume discount.
trade discount. (1889) 1. A discount from list price
offered to all customers ofa given type -for example,
a discount offered by a lumber dealer to building con
tractors. 2. The difference between a seller's list price
and the price at which the dealer actually sells goods
to the trade.
volume discount. (1939) A price decrease based on
a large-quantity purchase. -Also termed bulk
discount; quantity discount.
discount bond. See BOND (3).
discount broker. See BROKER.
discounted cash flow. See CASH FLOW.
discounted-cash-flow method. See discounted cash flow
under CASH FLOW.
discount interest. See INTEREST (3).
discount loan. See LOAN.
discount market. See MARKET.
discount rate. See INTEREST RATE.
discount share. See discount stock under STOCK.
533
discouut stock. See STOCK.
discount yield. See YIELD.
discoverable, adj. Subject to pretrial discovery <the
defendant's attorney argued that the defendant's
income-tax returns were not discoverable during the
liability phase of the trial>. [Cases: Federal Civil Pro
cedure (P1272; Pretrial Procedure
discovered-peril doctrine. See LAST-CLEAR-CHANCE
DOCTRINE.
discoveree. A party who is required to respond to a liti
gant's discovery request or order. Cf. DISCOVERER (1).
discoverer. '1. A litigant who seeks information or materi
als from another party by means ofa discovery request.
-Also termed discovering party. Cf. DISCOVEREE. 2.
Patent law. See INVENTOR. See 35 USCA 101. [Cases:
Patents (P1.]
discovering party. See DISCOVERER (1).
discovert (dis-k3v-drt), adj. 1. Archaic. Uncovered;
exposed. 2. Not married, esp. a widow or a woman who
has never married.
discovery, n. (16c) 1. The act or process of finding or
learning something that was previously unknown
<after making the discovery, the inventor immediately
applied for a patent>. 2. Compulsory disclosure, at a
party's request, ofinformation that relates to the litiga
tion <the plaintiff filed a motion to compel discovery>.
See Fed. R. Civ. P. 26-37; Fed. R. Crim. P. 16. The
primary discovery devices are interrogatories, deposi
tions, requests for admissions, and requests for produc
tion. Although discovery typically comes from parties,
courts also allow limited discovery from nonparties.
rCases: Pederal Civil Procedure (P1261; Pretrial Pro
cedure (P11.] 3. The facts or documents disclosed <the
new associate spent all her time reviewing discovery>.
4. The pretrial phase ofa lawsuit during which deposi
tions, interrogatories, and other forms ofdiscovery are
conducted. -discover, vb. discoverable, adj.
"Discovery has broad scope. According to Federal Rule 26,
which is the model in modern procedural codes, inquiry
may be made into 'any matter, not privileged, that is
relevant to the subject matter ofthe action.' Thus, discov
ery may be had of facts incidentally relevant to the issues
in the pleadings even if the facts do not directly prove or
disprove the facts in question." Geoffrey C. Hazard Jr. &
Michele Taruffo, American Civil Procedure: An Introduction
115 (1993).
accelerated discovery. A party's production ofrelevant
evidence to an opponent at a time earlier than would
otherwise be required by rule or standing order of
the court. The accelerated discovery is usu. carried
out in compliance with a specific court order or the
parties' agreement. -Also termed accelerated disclo
sure. [Cases: Pretrial Procedure (P25.]
jurisdictional discovery. Discovery that is limited to
finding facts relevant to whether the court has juris
diction. A court may allow limited jurisdictional
discovery before it rules on a motion to dismiss for
lack of jurisdiction. [Cases: Federal Civil Procedure
(P1269.1; Pretrial Procedure (P24.] discovery rule
merits discovery. Discovery to uncover facts that
support the claim or defense, or that might lead to
other facts that will support the allegations ofa legal
proceeding.
postjudgment discovery. (1967) Discovery conducted
after judgment has been rendered, usu. to determine
the nature ofthe judgment debtor's assets or to obtain
testimony for use in future proceedings. Also
termed posttrial discovery. [Cases: Execution
373-400; Federal Civil Procedure
pretrial discovery. (1939) Discovery conducted before
trial to reveal facts and develop evidence . Modern
procedural rules have broadened the scope ofpretrial
discovery to prevent the parties from surprising each
other with evidence at trial. [Cases: Federal Civil Pro
cedure (P1261; Pretrial Procedure (P11.]
reciprocal discovery. See reverse Jencks material under
fENCKS MATERIAL.
reverse discovery. See reverse Jencks material under
fENCKS MATERIAL.
discovery abuse. (1975) 1. The misuse of the discovery
process, esp. by making overbroad requests for infor
mation that is unnecessary or beyond the scope ofper
missible disclosure or by conducting discovery for an
improper purpose. [Cases: Federal Civil Procedure (P
1278; Pretrial Procedure G-'-:::>28.]
"The term 'discovery abuse' has been used as if it were
a single concept, but it includes several different things.
Thus, it is useful to subdivide 'abuse' into 'misuse' and
'overuse: What is referred to as 'misuse' would include not
only direct violation of the rules, as by failing to respond
to a discovery request within the stated time limit, but also
more subtle attempts to harass or obstruct an opponent,
as by giving obviously inadequate answers or by requesting
information that clearly is outside the scope of discovery.
By 'overuse' is meant asking for more discovery than is
necessary or appropriate to the particular case. 'Overuse,'
in turn, can be subdivided into problems of 'depth' and of
'breadth,' with 'depth' referring to discovery that may be
relevant but is simply excessive and 'breadth' referring to
discovery requests that go into matters too far removed
from the case." Charles Alan Wright, The Law of Federal
Courts 81, at 580 (5th ed. 1994).
2. The failure to respond adequately to proper discov
ery requests. -Also termed abuse ofdiscovery. [Cases:
Federal Civil Procedure Pretrial Procedure
(P44.1.]
discovery immunity. (1975) An exemption provided by
statute, caselaw, or court rules to exclude certain docu
ments and information from being disclosed during
discovery.
discovery policy. See claims-made policy under INSUR
ANCE POLICY.
discovery rule. (1916) Civil procedure. The rule that a
limitations period does not begin to run until the plain
tiff discovers (or reasonably should have discovered)
the injury giving rise to the claim . The discovery rule
usu. applies to injuries that are inherently difficult to
detect, such as those resulting from medical malprac
tice. See STATUTE OF LIMITATIONS. Cf. OCCURRENCE
RULE. [Cases: Limitation ofActions (P,95, 100.]
534 discovery vein
discovery vein. See VEIN.
discredit, vb. To destroy or impair the credibility of
(a witness, a piece of evidence, or a theory); to lessen
the degree of trust to be accorded to (a witness or
document). [Cases: Witnesses (::::>330.] -discredit,
n.
discreet (di-skreet), adj. Exercising discretion; prudent;
judicious; discerning.
discrete (di-skreet), adj. Individual; separate; distinct.
discretion (di-skresh-;m). (14c) 1. Wise conduct and
management; cautious discernment; prudence. 2. Indi
vidual judgment; the power offree decision-making.
sole discretion. An individual's power to make deci
sions without anyone else's advice or consent.
3. Criminal & tort law. The capacity to distinguish
between right and wrong, sufficient to make a person
responsible for his or her own actions. [Cases: Criminal
Law (::::>46.]4. A public official's power or right to act in
certain circumstances according to personal judgment
and conscience, often in an official or representative
capacity. -Also termed discretionary power.
administrative discretion. A public official's or agency's
power to exercise judgment in the discharge of its
duties. [Cases: Administrative Law and Procedure
(::::>324,754.]
judicial discretion. (17c) The exercise ofjudgment by a
judge or court based on what is fair under the circum
stances and guided by the rules and principles oflaw;
a court's power to act or not act when a litigant is not
entitled to demand the act as a matter ofright. -Also
termed legal discretion. [Cases: Courts (::::>26.]
prosecutorial discretion. (1966) A prosecutor's power
to choose from the options available in a criminal
case, such as filing charges, prosecuting, not prosecut
ing, plea-bargaining, and recommending a sentence
to the court. [Cases: Criminal Law (::::>29(3); District
and Prosecuting Attorneys (::::>8.]
discretion, abuse of. See ABUSE OF DISCRETION.
discretionary (di-skresh-<'l-ner-ee), adj. (18c) (Of an
act or duty) involving an exercise of judgment and
choice, not an implementation ofa hard-and-fast rule.
Such an act by a court may be overturned only after
a showing ofabuse ofdiscretion.
discretionary account. An account that allows a broker
access to a customer's funds to purchase and sell secu
rities or commodities for the customer based on the
broker's judgment and without first having to obtain
the customer's consent to the purchase or sale. [Cases:
Brokers (::::> 19.]
discretionary act. A deed involving an exercise of personal
judgment and conscience. -Also termed discret |
19.]
discretionary act. A deed involving an exercise of personal
judgment and conscience. -Also termed discretionary
function. See DISCRETION; ABUSE OF DISCRETION.
discretionary bail. See BAIL (3).
discretionary commitment. See COMMITMENT.
discretionary damages. See DAMAGES. discretionary duty. See DUTY (2).
discretionary function. See DISCRETIONARY ACT.
discretionary immunity. See IMMUNITY (1).
discretionary order. See ORDER (8).
discretionary power. 1. See POWER (3). 2. See DISCRE
TION (4).
discretionary review. See REVIEW.
discretionary sentencing. See indeterminate sentencing
under SENTENCING.
discretionary-transfer statute. See TRANSFER STATUTE.
discretionary trust. See TRUST.
discretion statement. Hist. English law. In an action for
divorce or judicial separation, a written request for the
court to consider granting a judgment favorable to a
spouse who has admittedly committed a matrimonial
offense, esp. adultery.
"In a suit for divorce or judicial separation, the defendant's
own adultery is a discretionary bar. The petitioner asking
the court to exercise its discretion to grant a decree not
withstanding his own adultery must lodge in the Divorce
Registry a statement, known as a 'discretion statement,'
dated and signed by him or his solicitor, stating that the
court will be asked to exercise its discretion on his behalf
notwithstanding his own adultery, and setting forth par
ticulars of his acts of adultery and of the facts which is it
material for the court to know for the purpose of exercising
its discretion." N. Simon Tessy, Is a Discretion Statement
Really Necessary?, 21 Mod. L. Rev. 48, 48 (1958).
discriminant function (di-skrim-<'l-n<'lnt). An IRS
method of selecting tax returns to be audited. The
method consists of (1) using a computer program to
identify returns with a high probability oferror (such as
those showing a disproportionate amount ofdeductible
expenses), and (2) having examiners manually review
the selected returns to determine which ones should be
audited. -Also termed DIP system. [Cases: Internal
Revenue (::::>4443.]
discriminatee (di-skrim-<'J-m-tee). A person unlawfully
discriminated against. [Cases: Civil Rights (::::> 1007.]
discrimination, n. (1866) 1. The effect ofa law or estab
lished practice that confers privileges on a certain class
or that denies privileges to a certain class because of
race, age, sex, nationality, religion, or disability.
Federal law, including Title VII ofthe Civil Rights Act,
prohibits employment discrimination based on anyone
ofthose characteristics. Other federal statutes, supple
mented by court decisions, prohibit discrimination in
voting rights, housing, credit extension, public educa
tion, and access to public facilities. State laws provide
further protections against discrimination. [Cases:
Civil Rights (::::> 1001-1263.] 2. Differential treatment;
esp., a failure to treat all persons equally when no rea
sonable distinction can be found between those favored
and those not favored. [Cases: Civil Rights 1033,
1138.]
'The dictionary sense of 'discrimination' is neutral while the
current political use of the term is frequently non-neutral,
pejorative. With both a neutral and a non-neutral use of
the word having currency, the opportunity for confusion
in arguments about racial discrimination is enormously
535
multiplied. For some, it may be enough that a practice is
called discriminatory for them to judge it wrong. Others
may be mystified that the first group condemns the
practice Without further argument or inquiry. Many may
be led to the false sense that they have actually made a
moral argument by showing that the practice discriminates
(distinguishes in favor of or against). The temptation is
to move from 'X distinguishes in favor of or against' to 'X
discriminates' to 'X is wrong' without being aware of the
equivocation involved." Robert K. Fullinwider, The Reverse
Discrimination Controversy 11-12 (1980).
age discrimination. Discrimination based on age.
Federal law prohibits discrimination in employment
against people who are age 40 or older. [Cases: Civil
Rights C::: 1014, 1199.]
content-based discrimination. A state-imposed
restriction on the content of speech, esp. when the
speech concerns something ofslight social value and
is vastly outweighed by the public interest in morality
and order. Types ofspeech subject to content-based
discrimination include obscenity, fighting words, and
defamation. R.A.v: v. City ofSt. Paul, 505 U.S. 377,
383-84, 112 S.C!. 2538, 2543 (1992).
gender discrimination. See sex discrimination.
invidious discrimination (in-vid-ee-Js). (1856) Dis
crimination that is offensive or objectionable, esp.
because it involves prejudice or stereotyping.
racial discrimination. Discrimination based on race.
[Cases: Civil Rights (:::::.1009,1107.]
reverse discrimination. (1964) Preferential treat
ment of minorities, usu. through affirmative-action
programs, in a way that adversely affects members of
a majority group. See AFFIRMATIVE ACTION. [Cases:
Civil Rights C::>1033(3), 1232.]
sex discrimination. Discrimination based on gender,
esp. against women . The Supreme Court has estab
lished an intermediate-scrutiny standard of review
for gender-based classifications, which must serve an
important governmental interest and be substantially
related to the achievement of that objective. Craig
v. Boren, 429 U.S. 190,97 S.Ct. 451 (1976). Also
termed gender discrimination. [Cases: Civil Rights
(';=;> 1011, 1164, 1236.J
viewpoint discrimination. Content-based discrimina
tion in which the government targets not a particular
subject, but instead certain views that speakers might
express on the subject; discrimination based on the
content ofa communication . Ifrestrictions on the
content ofspeech are reasonable and not calculated to
suppress a particular set ofviews or ideas, a govern
mental body may limit speech in a nonpublic forum to
expressions that serve a specific purpose. For example,
an agency holding a workshop to inform state employ
ees oflaws related to the agency's functions may rea
sonably prohibit the expression ofopinions regarding
the motives of the legislators. But if speech favorable
to the legislators' intent is allowed and opponents
are denied the opportunity to respond, the restric
tion would constitute viewpoint discrimination. disentailment
Also termed viewpoint-based discrimination. [Cases:
Constitutional Law (';=;> 1507, 1516.J
3. The effect ofstate laws that favor local interests over
out-of-state interests . Such a discriminatory state law
may still be upheld ifit is narrowly tailored to achieve
an important state interest. Cf. FAVORITISM. [Cases:
Commerce -discriminate, vb. discrim
inatory, adj.
discriminatory tariff. See TARIFF (2).
i discussion. 1. The act ofexchanging views on something;
a debate. 2. Civil law. A creditor's act of exhausting all
remedies against the principal debtor before proceed
ing with a lawsuit against the guarantor. See BENEFIT
OF DISCUSSION. [Cases: Guaranty (:::::42, 77; Principal
and Surety 168.]
disease. 1. A deviation from the healthy and normal
functioning ofthe body <the drug could not be linked
to his disease>. 2. (pi.) Special classes of pathological
conditions with similar traits, such as having similar
causes and affecting similar organs <respiratory
diseases> <occupational diseases>. 3. Any disorder;
any depraved condition.
functional disease. A disease that prevents, obstructs,
or interferes with an organ's special function, without
anatomical defect or abnormality in the organ itself.
industrial disease. See OCCUPATIONAL DISEASE.
occupational disease. See OCCUPATIONAL DISEASE.
organic disease. A disease that is caused by an injury
to, or lesion or malfunction in, an organ.
disembarrass, vb. To free from embarrassment; to extri
cate or disentangle one thing from another.
disembodied technology. Intellectual property.
Know-how or knowledge that is in the form ofinforma
tion only . Disembodied technology includes proprie
tary technology and information in the public domain.
Cf. EMBODIED TECHNOLOGY.
disenfranchise (dis-Jn-fran-chIz), vb. (l7c) To deprive (a
person) ofthe right to exercise a franchise or privilege,
esp. to vote. Also termed disfranchise.
disenfranchisement (dis-Jn-fran-chiz-mJnt or -fran
chrz-mJnt). 1. The act ofdepriving a member ofa corpo
ration or other organization ofa right, as by expulsion.
2. The act oftaking away the right to vote in public elec
tions from a citizen or class ofcitizens. -Also termed
disfranchisement. [Cases: Elections (,"':::>87.J
disentailing assurance. See DISENTAILMENT.
disentailing deed. See DEED.
disentailing statute (dis-Jn-tayl-ing). A statute regulat
ing or prohibiting disentailing deeds. See disentailing
deed under DEED. [Cases: Deeds (,"':::> 127.]
disentailment (dis-olll-tayl-mJnt), n. (1886) The act or
process by which a tenant in tail bars the entail on an
estate and converts it into a fee simple, thereby nulli
fying the rights ofany later claimant to the fee tail.
Also termed disentailing assurance. See BARRING OF
disentitle 536
ENTAIL. [Cases: Deeds C-~,127(2); Estates in Property
12.] -disentail, vb.
disentitle (dis-;m-tlt-<ll), vb. (I7c) To deprive (someone)
of a title or claim <the plaintiffs' actions disentitled
them to recover damages>.
disfacere. See DIFFACERE.
disfigurement (dis-fig-Y<lr-m<lnt). An impairment or
injury to the appearance ofa person or thing.
disfranchise. See DISENFRANCHISE.
disfranchisement. See DISENFRANCHISEMENT.
disgavel (dis-gav-<ll), vb. Hist. To convert (gavelkind
land) into ordinary freehold land. See GAVELKIND.
disgorgement, n. (ISc) The act of giving up something
(such as profits illegally obtained) on demand or by
legal compulsion. [Cases: Securities Regulation C::::>
150.] -disgorge, vb.
disgrading. Hist. 1. The act ofdegrading. 2. The depriv
ing ofan order; the depriving ofa dignity.
"Disgrading, or degrading, is when a man having taken
upon him a dignity temporal or spiritual, is afterwards
thereof deprived. be he knight, clerk or other. Whereof
if a clerk be delivered to his ordinary, and cannot clear
himself of the offence whereof he is convicted by the jury,
he shall be disgraded for it: which is nothing else but the
deprivation of him from those orders he hath taken upon
him. as priesthood, deaconship, or otherWise.... In like
manner there is disgrading of a knight .... And it is worthy
the observation, that by the canon law there are two kinds
of disgradings: the one summary, by word only, and the
other solemn, by devesting the party disgraded from those
ornaments and rites which are the ensigns of his order or
degree." Termes de la Lev 175-76 (lst Am. ed. 1812).
disguised dividend. See informal dividend under
DIVIDEND.
disguised installment sale. See INSTALLMENT SALE.
disherison (dis-her-<l-z;m). See DISINHERITANCE.
disheritor (dis-her-<l-t<lr or -tor). Archaic. A person who
deprives someone ofan inheritance.
dishonest act. See FRAUDULENT ACT.
dishouor, vb. (I814c) 1. To refuse to accept or pay (a
negotiable instrument) when presented. See NOTICE
OF DISHONOR; WRONGFUL DISHONOR. [Cases: Banks
and Banking 137; Bills and Notes ~~385-424.]
2. To deface or defile (something, such as a flag).
dishonor, n.
dishonorable discharge. See DISCHARGE (8).
disimprisonment. lhe release ofa prisoner; the removal
ofa prisoner from confinement. -Also termed disin
carceration; decarceration. Cf. INCARCERATION. [Cases:
Prisons
disincarcerate, vb. To release (a person) from jail; to set
free.-Also termed disimprison.
disincarceration. See DISIMPRISONMENT.
disincentive, n. (1946) A deterrent (to a particular type
ofconduct), often created, intentionally or unintention
ally, through legislation <federal tax law creates a disincentive to marriage> <sales taxes provide a disincentive
to excessive consumer spending>.
disinflation. A period or process ofslowing down the
rate ofinflation. Cf. DEFLATION.
disinherison ( |
ation. A period or process ofslowing down the
rate ofinflation. Cf. DEFLATION.
disinherison (dis-in-her-<l-z;m), n. See DISINHERI
TANCE.
disinheritance, n. (16c) 1. The act by which an owner of
an estate deprives a would-be heir ofthe expectancy to
inherit the estate. - A testator may expressly exclude or
limit the right ofa person or a class to inherit property
that the person or class would have inherited through
intestate succession, but only if the testator devises all
the property to another. [Cases: Descent and Distribu
tion (~47(2); Wills 11,82.] 2. The state of being
disinherited. Seeforced heir under HEIR. Also termed
disherison; disinherison; deherison. disinherit, vb.
negative disinheritance. The act by which a testator
attempts to exclude a person from inheritance without
disposing ofthe property to another. _ Negative dis
inheritance is ineffective at common law, although
today it may he permitted by statute.
disinter (dis-in-t;u), vb. 1. To exhume (a corpse).
[Cases: Dead Bodies 2. To remove (something)
from obscurity. disinterment (dis-in-t<lr-m<lnt), n.
disinterested, adj. (17c) Free from bias, prejudice, or par
tiality; not having a pecuniary interest <a disinterested
witness>. disinterest, disinterestedness, n.
disinterested witness. See WITNESS.
disintermediation. The process of bank depositors'
withdrawing their funds from accounts with low
interest rates to put them into investments that pay
higher returns.
disinvestment, n. (1936) 1. The consumption ofcapital.
2. The withdrawal of investments, esp. on political
grounds. Also termed (in sense 2) divestment.
disinvest, vb.
disjoinder (dis-joyn-d<lr). (1936) The undoing of the
jOinder ofparties or claims. See JOINDER. Cf. MISJOIN
DER (1); NONJOINDER (1).
disjuncta (dis-jangk-t;:, n. pI. [Latin] Roman & civil law.
Things (usu. words or phrases) that are separated or
opposed. Also spelled disiuncta. Cf. CONJUNCTA.
disjunctim (dis-jangk-t;:>m), adv. [LatinI Roman law. Sep
arately; severally. - A condition imposed disjunctim,
for example, would bind the persons severally, rather
than jointly. Also spelled disiunctim. Cf. CONJUNC
TIM.
disjunctive allegation. See ALLEGATION.
disjunctive condition. See CONDITION (2).
disjunctive denial. See DENIAL.
disjunctive obligation. See alternative obligation under
OBLIGATION.
disme (dIm), n. [Law French] A tithe; a tenth part, as in
a tithe due the clergy equal to the tenth of all spiritual
livings as required by the statute 25 Edw. 3, st. 7. _ This
537
is the Law French equivalent to the Latin decimae. It
was once the spelling of the American to-cent piece,
the dime. See DECIMAE. PI. dismes.
dismemberment. 1. The cutting off of a limb or body
part. 2. Int'llaw. The disappearance of a country as a
result ofa treaty or an annexation, whereby it becomes
part of one or more other countries. 3. Int'llaw. The
reduction of a country's territory by annexation or
cession, or the secession of one part. 4. Int'llaw. 'lbe
extinguishment of a country and the creation of two
or more new countries from the former country's ter
ritory.
dismembe'rments of ownership. Civil law. The three
elements composing the right of ownership, namely
the usus, the fructus, and the abusus. The right of
ownership may be dismembered and its components
conveyed in the form of independent real rights, such
as the right of use, the right of usufruct, and the right
ofsecurity. See ABUSUS; FRUCTUS; usus.
dismiss, vb. 1. To send (something) away; specif., to ter
minate (an action or claim) without further hearing,
esp. before the trial ofthe issues involved. 2. To release
or discharge (a person) from employment. See DIS
MISSAL.
dismissal, n. (l885) 1. Termination ofan action or claim
without further hearing, esp. before the trial of the
issues involved. [Cases: Federal Civil Procedure
1691-1842; Pretrial Procedure (:;:::>501-699.)
dismissal agreed. A court's dismissal ofa lawsuit with
the acquiescence of all parties . Among other pos
sibilities, the parties may have settled out ofcourt or
chosen to have their dispute arbitrated or mediated.
Also termed agreed dismissal.
dismissal for failure to prosecute. See dismissal for
want ofprosecution.
dismissal for lack ofprosecution. See dismissal for want
ofprosecution.
dismissal for want ofequity. (1859) A court's dismissal
of a lawsuit on substantive, rather than procedural,
grounds, usu. because the plaintiff's allegations are
found to be untrue or because the plaintiff's pleading
does not state an adequate claim. [Cases: Pretrial Pro
cedure (:;:::>552,622.)
dismissal for want ofprosecution. (1831) A court's
dismissal of a lawsuit because the plaintiff has failed
to pursue the case diligently toward completion. -
Abbr. DWOP. Also termed dismissal for failure to
prosecute: dismissal for lack ofprosecution. [Cases:
Criminal Law (:;:::>303.30(1); Federal Civil Procedure
Pretrial Procedure (:;:::> 581-602.]
dismissal without prejudice. (1831) A dismissal that
does not bar the plaintiff from refiling the lawsuit
within the applicable limitations period. See WITHOUT
PREJUDICE. [Cases: Federal Civil Procedure G'":;:) 1713,
1837.1; Pretrial Procedure 690.]
dismissal with prejudice. (1898) A dismissal, usu. after
an adjudication on the merits, barring the plaintiff dismissed with prejudice
from prosecuting any later lawsuit on the same claim.
If, after a dismissal with prejudice, the plaintiff files
a later suit on the same claim, the defendant in the
later suit can assert the defense of res judicata (claim
preclusion). See RES JUDICATA; WITH PREJUDICE.
[Cases: Federal Civil Procedure 1713, 1837.1;
Pretrial Procedure 690.)
involuntary dismissal. (1911) A court's dismissal of
a lawsuit because the plaintiff failed to prosecute or
failed to comply with a procedural rule or court order.
Fed. R. Civ. P. 41(b). [Cases: Federal Civil Procedure
C::>1721-1842; Pretrial Procedure (:;:::>531-699.)
voluntary dismissal. (1834) A plaintiff's dismissal ofa
lawsuit at the plaintiff's own request or by stipulation
ofall the parties. Fed. R. Civ. P. 41(a). [Cases: Federal
Civil Procedure 1691-1715; Pretrial Procedure
(:;:::>501-520.]
2. A release or discharge from employment. See DIS
CHARGE (7). [Cases: Labor and Employment (:;:::>825.]
dismissal for cause. (1877) A dismissal of a contract
employee for a reason that the law or public policy
has recognized as sufficient to warrant the employee's
removal. [Cases: Labor and Employment (:;:::>762.)
3. Military law. A court-martial punishment for an
officer, commissioned warrant officer, cadet, or mid
shipman, consisting of separation from the armed
services with dishonor. A dismissal can be given
only by a general court-martial and is considered the
equivalent ofa dishonorable discharge. [Cases: Military
Justice (:;:::> 1322.1.] dismiss, vb.
dismissal compensation. See SEVERANCE PAY.
dismissal order. See ORDER (2).
dismissed for want of equity. (Of a case) removed
from the court's docket for substantive reasons, usu.
because the plaintiff's allegations are found to be
untrue or because the plaintiff's pleading does not
state an adequate claim. See dismissal for want ofequity
under DISMISSAL (1). [Cases: Pretrial Procedure Cr---::>
552,622.]
dismissed for want ofprosecution. (Of a case) removed
from the court's docket because the plaintiff has failed
to pursue the case diligently toward completion. See
dismissal for want ofprosecution under DISMISSAL (1).
[Cases: Federal Civil Procedure (:;:::> 1758; Pretrial Pro
cedure (:;:::>581-602.]
dismissed without prejudice. (Of a case) removed from
the court's docket in such a way that the plaintiff may
refile the same suit on the same claim. See dismissal
without prejudice under DISMISSAL (1); WITHOUT PREj
UDICE. [Cases: Federal Civil Procedure (:;:::>1713,1837.1;
Pretrial Procedure (:;:::>517.1, 690.)
dismissed with prejudice. (Of a case) removed from the
court's docket in such a way that the plaintiff is fore
closed from filing a suit again on the same claim or
claims. See dismissal with prejudice under DISMISSAL
(1); WITH PREJUDICE. [Cases: Federal Civil Procedure
(:;:::> 1713, 1837.1; Pretrial Procedure (:;:::>517.1, 690.J
538 dismission
dismission. Archaic. 1. An act ofdismissing <dismission
of the jury>. 2. A removal, esp. from office or position
<dismission of the employee>. 3. A decision that a suit
cannot be maintained <dismission of the case>.
dismortgage. See REDEMPTION (4).
Disneyland parent. See PARENT.
disobedient child. See incorrigible child under CHILD.
disorder. (1877) 1. A lack of proper arrangement
<disorder ofthe files>. 2. An irregularity <a disorder in
the proceedings>. 3. A public disturbance; a riot <civil
disorder>. 4. A disturbance in mental or physical health
<an emotional disorder> <a liver disorder>.
disorderly conduct. See CONDUCT.
disorderly house. (16c) 1. A dwelling where people carry
on activities that are a nuisance to the neighborhood.
[Cases: Disorderly House (;:::::c 1.] 2. A dwelling where
people conduct criminal or immoral activities.
Examples are brothels and drug houses. -Also termed
(more narrowly) bawdy house; house ofprostitution;
house ofillfame; house ofill repute; lewd house; assig
nation house; house ofassignation.
"The keeping of one type of disorderly house -the
bawdy house -is punished because it violates the social
interest in maintaining proper standards of morality and
decency.... As included here a house may be disorderly
for other reasons. Any house in which disorderly persons
are permitted to congregate, and to disturb the tranquillity
of the neighborhood by fighting, quarreling, swearing or
any other type of disorder, is a disorderly house; and the
keeping thereof is a misdemeanor at common law." Rollin
M. Perkins & Ronald N. Boyce, Criminal Law 487 (3d ed.
1982).
disorderly person. (18c) 1. A person guilty ofdisorderly
conduct. [Cases: Disorderly Conduct (;:::::c 108-140.] 2.
A person who breaches the peace, order, decency, or
safety ofthe public, as defined by statute . The offense
ofbeing a disorderly person is usu. a misdemeanor.
"Ordinarily, a person who is gUilty of disorderly conduct
is a 'disorderly person,' but where statutes define 'a dis
orderly person' and distinguish acts which may constitute
the offense of disorderly conduct, the distinction is to be
preserved and the different provisions relative to the dif
ferent offenses particularly followed." 27 c.J.S. Disorderly
Conduct 1 (1), at 509 (1 959).
disparagare (di-spar-J-gair-ee), vb. [Law Latin fr. Law
French disparager "to disparage"] Hist. 1. To disparage.
2. To bring together unequal persons, as in a marriage
between persons of unequal lineage. Cf. PARAGE.
disparagatio (di-spar-J-gay-shee-oh), n. [Law Latin]
Hist. Disparagement in marriage.
disparagation (di-spar-J-gay-shJn), n. [Law French] Hist.
1. Disparagement. 2. A marriage below one's station.
disparagement (di-spar-ij-mJnt), n. (16c) 1. A deroga
tory comparison ofone thing with another <the dispar
agement consisted in comparing the acknowledged liar
to a murderer>. 2. The act or an instance ofcastigating
or detracting from the reputation of, esp. unfairly or
untruthfully <when she told the press the details ofher
husband's philandering, her statements amounted to
disparagement>. 3. A false and injurious statement that discredits or |
's philandering, her statements amounted to
disparagement>. 3. A false and injurious statement that discredits or detracts from the reputation of another's
character, property, product, or business. To recover
in tort for disparagement, the plaintiff must prove that
the statement caused a third party to take some action
resulting in specific pecuniary loss to the plaintiff.
Also termed injurious falsehood. -More narrowly
termed slander oftitle; trade libel; slander ofgoods. See
TRADE DISPARAGEMENT. Cf. commercial defamation
under DEFAMATION. [Cases: Libel and Slander (;:::::c
130, 133.] 4. Reproach, disgrace, or indignity <self
importance is a disparagement of greatness>. 5. Hist.
The act or an instance of pairing an heir in marriage
with someone of an inferior social rank <the guardian's
arranging for the heir's marriage to a chimney sweep
amounted to disparagement>. -disparage, vb.
disparaging instruction. See JURY INSTRUCTION.
disparaging mark. See disparaging trademark under
TRADEMARK.
disparaging trademark. See TRADEMARK.
disparate impact (dis-pJ-rit). (1973) The adverse effect of
a facially neutral practice (esp. an employment practice)
that nonetheless discriminates against persons because
oftheir race, sex, national origin, age, or disability and
that is not justified by business necessity . Discrimina
tory intent is irrelevant in a disparate-impact claim.
Also termed adverse impact. [Cases: Civil Rights (;:::::c
1033, 1140.]
disparate treatment. The practice, esp. in employ
ment, ofintentionally dealing with persons differently
because of their race, sex, national origin, age, or dis
ability. To succeed on a disparate-treatment claim,
the plaintiff must prove that the defendant acted with
discriminatory intent or motive. [Cases: Civil Rights
(;:::::c 1033, 1138.]
"Claims brought on behalf of a group of employees come
in two varieties: claims of intentional discrimination (or
disparate treatment) and claims of discriminatory impact
(or disparate impact). The difference between these types
of claims is significant, so much so that constitutional
law only recognizes claims of disparate treatment, not
disparate impact. Yet these two kinds of claims resemble
one another, especially in the statistical evidence that the
plaintiff must present in order to establish liability.... [C]
lass claims of disparate treatment emphasize the historical
perspective and its negative conception of equality as col
orblindness, while class claims of disparate impact empha
size the remedial perspective and its goal of eliminating
the effects of past discrimination." George Rutherglen,
Employment Discrimination Law 56 (2001).
disparity (di-spar-J-tee). (16c) Inequality; a difference in
quantity or quality between two or more things.
dispatch (di-spach also dis-pach), n. 1. A prompt sending
off of something <a dispatch of the letter agreement>.
2. A prompt completion of something <dispatch of a
business transaction>. 3. Something quickly sent <the
dispatch was mailed>. 4. Maritime law. The required
diligence in discharging cargo <dispatch is required on
all charters>. [Cases: Shipping (;:::::c47, 49(6).]
customary dispatch. Dispatch that follows the rules,
customs, and usages of the port where cargo is dis
charged. [Cases: Shipping (;:::::c47, 49(6).]
539
quick dispatch. A speedy dispatch that does not strictly
follow the customs of the port, esp. to avoid delays
resulting from a crowded wharf. [Cases: Shipping <:=>
47,49(6).]
5. Maritime law. DISPATCH MONEY.
dispatch money. Maritime law. An amount paid by a
shipowner to a vessel's charterer if the vessel's cargo is
unloaded at the port sooner than provided for in the
agreement between the charterer and the shipowner.
Also termed dispatch. Cf. contract demurrage under
DEMURRAGE. [Cases: Shipping \.~49(6).]
"Some charters contain a provision for 'dispatch money,'
which is in the nature of a reward to the charterer for
loading or unloading more rapidly than provided for
i.e., in less time than the stipulated 'lay days.' Dispatch,
where payable, is usually stated, just as is demurrage, in
terms of a rate per day and pro rata part thereof." Grant
Gilmore & Charles L Black Jr., The Law ofAdmiralty 48,
at 212 (2d ed. 1975).
dispatch rule. See MAILBOX RULE.
dispauper (dis-paw-par), vb. To disqualify from being
a pauper; to deprive (a person) of the ability to sue in
forma pauperis. See IN FORMA PAUPERIS.
dispensary (di-spen-sar-ee), n. 1. A place where drugs
are prepared or distributed. 2. An institution, usu. for
the poor, where medical advice and medicines are dis
tributed for free or at a discounted rate.
dispensation (dis-pen-say-shan). An exemption from a
law, duty, or penalty; permission to do something that
is ordinarily forbidden.
dispense with the reading ofthe minutes. Parliamentary
law. To forgo reciting the secretary's proposed minutes
at the regular time. -The reading is not foregone alto
gether, but simply postponed. Ifthe proposed minutes
have been printed and circulated, then their correction
and approval is in order without reading them aloud,
and a motion to dispense with reading them is super
fluous.
dispersonare (dis-par-sa-nair-ee), vb. [Latin] Rist. To
scandalize, disparage, or slander.
displaced person. See PERSON (1).
displaced-persons camp.lnt'l. law. In a nation in the
throes of war, natural disaster, ethnic cleansing, or
some similar extraordinary event, a temporary settle
ment where citizens who have become homeless are
temporarily provided with the basic necessities of life
and given assistance in resetttling or emigrating.
displacement. 1. Removal from a proper place or position
<displacement of a file> <displacement of an officer>.
2. A replacement; a substitution <displacement of one
lawyer with another>. 3. A forced removal of a person
from the person's home or country, esp. because of
war <displacement of refugees>. 4. A shifting of emo
tional emphaSiS from one thing to another, esp. to avoid
unpleasant or unacceptable thoughts or tendencies
<emotional displacement>.
display right. (1944) Copyright. A copyright owner's
exclusive right to show or exhibit a copy of the disposition
protected work publicly, whether directly or by tech
nological means. -For example, this right makes it
illegal to transmit a copyrighted work over the Internet
without permission. [Cases: Copyrights and Intellec
tual Property <:=>36.]
dispone (dis-pohn), vb. [fr. Middle English disponen fr.
Old French disponer "dispose"]l. Archaic. To dispose;
to arrange. 2. Scots law. To convey, transfer, or other
wise alienate (property),
disponee. See ALIENEE.
dispono (dis-poh-noh), vb. [Latin] Scots law. I grant or
convey (land, etc.). _ This is traditionally the main verb
in a grant.
disponor. See ALIENOR.
disposable earnings. See disposable income under
INCOME.
disposable income. See INCOME.
disposable portion. The portion of property that can
be willed to anyone the testator chooses. [Cases: Wills
<:=> 11.]
disposal. Patents. A patent application's termination by
withdrawal, rejection, or grant. -In some countries,
the meaning is limited to rejection. [Cases: Patents
108.]
disposing capacity. See testamentary capacity under
CAPACITY (3).
Disposing Clause. The clause of the U.S. Constitution
giving Congress the power to dispose of property
belonging to the federal government. U.S. Const. art.
IV, 3, d. 2. United States <:=>58.)
disposing mind. See testamentary capaCity under
CAPACITY (3).
disposition (dis-pa-zish-an), n. (14c) 1. The act oftrans
fer ring something to another's care or possession, esp.
by deed or will; the relinquishing ofproperty <a testa
mentary disposition of all the assets>.
testamentary disposition. A disposition to take effect
upon the death of the person making it, who retains
substantially entire control of the property until
death. [Cases: Wills
2. A final settlement or determination <the court's dis
position of the case>.
ambulatory disposition. 1. A judgment or sentence
that is subject to amendment or revocation. 2. A tes
tamentaryprovision that is subject to change because
the testator is still alive and capable of making a new
will. -Sense 2 corresponds to the first sense of dispo
sition above. See AMBULATORY.
informal disposition. The termination of a case by
means other than trial; any action that leads to dis
position without conviction and without a judicial
determination ofguilt, such as guilty pleas and deci
sions not to prosecute.
3. Temperament or character; personal makeup <a
surly disposition>. dispose, vb. dispositive, adj.
540 dispositional hearing
dispositional hearing. See disposition hearing and per
manency hearing under HEARING.
disposition hearing. See HEARING.
disposition without a trial. (1888) The final determina
tion of a criminal case without a trial on the merits,
as when a defendant pleads guilty or admits sufficient
facts to support a guilty finding without a triaL
dispositive (dis-poz-<l-tiv), adj. (17c) 1. Being a deciding
factor; (of a fact or factor) bringing about a final deter
mination. 2. Of, relating to, or effecting the disposition
ofproperty by will or deed.
dispositive clause. Scots law. In a deed, the clause ofcon
veyance by which the grantor describes the property
conveyed, its conditions or burdens, the name ofthe
grantee, and the destination to heirs. See DESTINATION
(3).
dispositive fact. See FACT.
dispositive treaty. See TREATY (1).
dispossess (dis-p<l-zes), vb. To oust or evict (someone)
from property. See DISPOSSESSION.
dispossession (dis-p<l-zesh-<ln), n. Deprivation of, or
eviction from, rightful possession of property; the
wrongful taking or withholding of possession ofland
from the person lawfully entitled to it; OUSTER (1).
[Cases: Property (;:::::>10.]
dispossessor. A person who dispossesses.
dispossess proceeding. (1888) A summary procedure
initiated by a landlord to oust a defaulting tenant
and regain possession of the premises. See FORCIBLE
ENTRY AND DETAINER. [Cases: Landlord and Tenant
G-'--.::293.]
disprove, vb. To refute (an assertion); to prove (an alle
gation) false.
dispunishable, adj. Hist. (Ofan offense) not punishable;
not answerable.
disputable presumption. See rebuttable presumption
under PRESUMPTION.
disputatio fori (dis-pyoo-tay-shee-oh for-I). [Latin]
Roman law. Argument before a court; the practice of
legal advocacy.
dispute, n. (16c) A conflict or controversy, esp. one that
has given rise to a particular lawsuit. dispute, vb.
major dispute. Labor law. Under the Railway Labor
Act, a disagreement about basic working condi
tions, often resulting in a new collective-bargaining
agreement or a change in the existing agreement .
Under the Act, two classes of disputes -major and
minor -are subject to mandatory arbitration. 45
USCA 155. Also termed new-contract dispute.
[Cases: Labor and Employment 1524.]
minor dispute. Labor law. Under the Railway Labor
Act, a disagreement about the interpretation or
application ofa collective-bargaining agreement, as
opposed to a disagreement over the formation of a new agreement. 45 USCA 155. [Cases: Labor and
Employment (;:::::> 1524.]
dispute resolution. See ALTERNATIVE DISPUTE RESO
LUTION.
dispute-resolution procedure. Intellectual property.
A mechanism for resolving international grievances
over intellectual-property protection, conducted by the
World Trade Organization under the TRIPs agreement.
The procedure begins with a complaint by one nation
against another, tollowed by consultations between the
nations, a WTO panel report on the issue, and (poten
tially) trade sanctions against one ofthe nations.
disqualification, n. (18c) 1. Something that makes one
ineligible; esp., a bias or conflict ofinterest that prevents
a judge or jurorfrom impartially hearing a case, or that
prevents a lawyer from representing a party. [Cases:
Judges (;:::::>39; Jury (;:::::>97.]
vicarious disqualification. (1949) Disqualification of
all the lawyers in a firm or in an office because one of
the lawyers is ethically disqualified from representing
the client at issue. -Also termed imputed disqualifi
cation. [Cases: Attorney and Client (;:::>21.15.]
"In general, disqualification of a lawyer from representa
tion, at least in multiple clientconflict scenarios, means
disqualification of that lawyer's entire firm from the same
representation. When a lawyer has been exclusively or
chiefly responsible for the representation of a client and
that lawyer changes jobs, there is little question but that
the imputed-disqualification rule will apply to disqualify
the new firm from representing the opponent of the |
question but that
the imputed-disqualification rule will apply to disqualify
the new firm from representing the opponent of the first
client. But because lawyers often work for large organiza
tions, ... a question may arise about the application of the
imputation rule when a lawyer has left employment ....
If the lawyer had little or no responsibility in the first
organization for the representation or if the lawyer can
be effectively shielded from the representation in the new
organization, or both, there may be no useful purpose
served by imputing the lawyer's disqualification to the new
organization ...."James E. Moliterno &John M. Levy, Ethics
of the Lawyer's Work 151 (1993).
2. The act ofmaking ineligible; the fact or condition of
being ineligible. Cf. RECUSAL. disqualify, vb.
disrate, vb. To reduce to a lower rank, esp. to reduce a
ship or petty officer's rank.
disrationare (dis-ray-shee-<l-nair-ee), n. [Law Latin fro
Law French desreigner "to deraign"] Hist. To prove; to
establish a title.
disregard, n. 1. The action ofignoring or treating without
proper respect or consideration. 2. The state of being
ignored or treated without proper respect or consider
ation. -disregard, vb.
reckless disregard. (1820) 1. Conscious indifference to
the consequences ofan act. [Cases: Municipal Corpo
rations C='723, 747(3); Negligence (;:::::>274.] 2. Defa
mation. Serious indifference to truth or accuracy of
a publication . "Reckless disregard for the truth" is
the standard in proving the defendant's actual malice
toward the plaintiff in a libel action. [Cases: Libel and
Slander (~51.] 3. The intentional commission of a
harmful act or failure to do a required act when the
actor knows or has reason to know offacts that would
541 dissolution
lead a reasonable person to realize that the actor's
conduct both creates an unreasonable risk of harm
to someone and involves a high degree ofprobability
that substantial harm will result.
disregarding the corporate entity. See PIERCING THE
CORPORATE VEIL.
disrepair. A state of being in need of restoration after
deterioration or damage.
disrepute. A loss of reputation; dishonor.
disruptive couduct. See CON DUCT.
disseise (dis-seez), vb. To wrongfully deprive (a person)
of the freehold possession of property. Also spelled
disseize.
disseisee (dis-see-zee). A person who is wrongfully
deprived ofthe freehold possession ofproperty. Also
spelled disseizee. Also termed disseisitus.
disseisin (dis-see-zin), n. (14c) Ibe act of wrongfully
depriving someone of the freehold possession of
property; DISPOSSESSION. Also spelled disseizin.
(Cases: Property v 10.)
disseisin by election. A legal fiction by which a property
owner is allowed to claim that he or she has been dis
seised, regardless of whether this is actually true, in
order to have a remedy against an adverse claimant.
equitable disseisin. The wrongful deprivation ofthe
equitable ownership, possession, or the fruits ofown
ership or possession.
fresh disseisin. The right at common law ofa person
disseised ofland to forcefully eject the disseisor from
the land without resort to law, as long as the ejection
occurred soon after the disseisin.
disseisitrix. See DISSEISORESS.
disseisitus. See DISSEISEE.
disseisor (dis-see-z;u or -zor). A person who wrong
fully deprives another of the freehold possession of
property. -Also spelled disseizor.
disseisoress (dis-see-zi'lr-is). Hist. A female disseisor.
Also termed disseisitrix.
dissemble (di-sem-bdl), vb. 1. Archaic. To physically
disguise <to dissemble by wearing a mask>. 2. To give a
false impression about (something); to cover up (some
thing) by deception <to dissemble the facts>.
disseminatiou (di-sem-i-nay-sh;:m), n. 1. The act of
spreading, diffusing, or dispersing; esp., the circulation
ofdefamatory matter. [Cases: Libel and Slander v 23.]
2. The extension of the influence or establishment ofa
thing, such as an idea, book, or document.
dissensus (di-sen-sds), n. [Latin "disagreement") Roman
law. 1. A lack of agreement. 2. A mutually agreed
annulment of a contractual obligation; an undoing of
the consensus that created the obligation.
dissent (di-sent), n. (16c) 1. A disagreement with a
majority opinion, esp. among judges. 2. See dissenting
opinion under OPINION (I). 3. A Withholding of assent
or approval. 4. The act ofa surviving spouse who, as statutorily authorized in many states, refuses a devise
and elects instead a statutory share. See ELECTIVE
SHARE. -dissent (di-sent), vb.
dissent and appraisal, right of. See APPRAISAL REMEDY.
dissenters' right. See APPRAISAL REMEDY.
dissentiente (di-sen-shee-en-tee). [Latin) Dissenting .
When used with a judge's name, it indicates a dissent
ing opinion.
dissenting opinion. See OPINION (1).
dissignare (di-sig-nair-ee), vb. [Law Latin] To break open
a seal.
dissipation, n. (17c) The use of an asset for an illegal
or ineqUitable purpose, such as a spouse's use of com
munity property for personal benefit when a divorce
is imminent. [Cases: Divorce v252.2, 252.3(1).)
dissipate, vb.
dissociative amnesia. See REPRESSED-MEMORY
SYNDROME.
dissolute, adj. (Of a person or thing) lacking restraint;
wanton; devoted to pleasure <dissolute person> <a dis
solute lifestyle>.
dissolution (dis-a-Ioo-sh;m), n. (14c) 1. The act of
bringing to an end; termination. 2. The cancellation
or abrogation ofa contract, with the effect ofannulling
the contract's binding force and restoring the parties
to their original positions. See RESCISSION. 3. The ter
mination of a corporation's legal existence by expira
tion ofits charter, by legislative act, by bankruptcy, or
by other means; the event immediately preceding the
liquidation or winding-up process. [Cases: Corpora
tions ~592.1
de facto dissolution. The termination and liquidation
ofa corporation's business, esp. because ofan inabil
ity to pay its debts.
involuntary dissolution. The termination of a corpo
ration administratively (for failure to file reports or
pay taxes), judicially (for abuse ofcorporate authority,
management deadlock, or failure to pay creditors), or
through involuntary bankruptcy. (Cases: Corpora
tions v612.)
voluntary dissolution. A corporation's termination ini
tiated by the board ofdirectors and approved by the
shareholders. [Cases: Corporations (;:;)610(1).1
4. The termination ofa previously existing partnership
upon the occurrence of an event specified in the part
nership agreement, such as a partner's withdrawal from
the partnership, or as specified by law. Cf. WINDING UP.
rCases: Partnership V 263.] 5. Patents. The dismissal
ofan interference contest before a final judgment and
an express award ofpriority. The effect ofdissolving
an interference is that junior parties fail to meet their
burden of proof, so the senior party retains priority.
[Cases: Patents 106(5).] 5. Parliamentary law. An
adjournment sine die without any provision for recon
vening the same deliberative assembly, even ifanother
assembly of the same kind (such as a legislative body
542 dissolution bond
or a convention) will eventually convene. -dissolve,
vb.
dissolution bond. See discharging bond under BOND
(2).
dissolution of marriage. 1. DIVORCE. 2. Archaic. A
divorce-like remedy available when both spouses have
signed a separation agreement that deals with (1) the
issue of alimony (providing either some or none), and
(2) ifthere are children, the issues of support, custody,
and visitation . Under a dissolution of marriage in this
sense, the court is bound by the separation agreement
and cannot later modify alimony payments. Courts
in jurisdictions where the term has been used in this
specific sense traditionally distinguish it from divorce,
which was formerly available only on certain grounds
and which allowed the court to modify alimony
payments.
dissolved corporation. See CORPORATION.
dissolving condition. See resolutory condition under
CONDITION (2).
dissuade, vb. To persuade (someone) not to do some
thing <to dissuade the expert from testifying>.
distaff right. Hist. A woman's legal right.
distillate. Oil & gas. 1. The "wet" element of natural gas
that may be removed as a liquid. Also termed con
densate; natural gas. 2. Any product of the process of
distillation.
distincte et aperte (dis-tingk-tee et ~-p"r-tee). [Law
Latin] Distinctly; openly . This phrase was formerly
used in writs of error to refer to the return required
to be made.
distinct invention. See INVENTION.
distinctive mark. See distinctive trademark under
TRADEMARK.
distinctive name. See NAME.
distinctiveness, n. Trademarks. The quality of a trade
marked word, symbol, or device that identifies the
goods ofa particular merchant and distinguishes them
from the goods ofothers. -Also termed acquired dis
tinctiveness. [Cases: Trademarks (;::::-1029.] -distinc
tive, adj.
distinctive trademark. See TRADEMARK.
distinguish, vb. (iSc) 1. To note a significant factual, pro
cedural, or legal difference in (an earlier case), usu. to
minimize the case's precedential effect or to show that
it is inapplicable <the lawyer distinguished the cited
case from the case at bar>.
"In practice, courts do not concede to their predecessors
the power of laying down very wide rules; they reserve to
themselves the power to narrow such rules by introducing
into them particular facts of the precedent case that were
treated by the earlier court as irrelevant. This process is
known as 'distinguishing,''' John Salmond, Jurisprudence
192 (Glanville L. Williams ed., 10th ed. 1947).
2. To make a distinction <the court distinguished
between willful and reckless conduct>. -distinc
tion, n. distinguishable, adj. (Of a case or law) different from,
and thereby not controlling or applicable in, a given
case or situation.
distinguishable variation. Copyright. A detectable dif
ference between two works . Distinguishable variation
is the standard for determining whether a work that
is based on a work in the public domain can itself be
copyrighted. Examples include translations of books
and mezzotints of paintings. Some nontrivial original
ity is also required; exact copies are not protectable.
distinguishing mark. A physical indication or feature
that identifies or delineates one person or thing from
another <the voting ballots contained distinguishing
marks so that they could not be counted>. See DISTINC
TIVENESS.
distracted, adj. 1. (Of a person) not concentrating. 2. (Of
a person) disordered.
distractio (di-strak-shee-oh), n. [Latin fro distrahere "to
draw apart"] Roman law. A separation or division into
parts; an alienation or sale, such as a creditor's sale of
a pledge.
distractio bonorum (di-strak-shee-oh b~-nor-~m). [Latin
"the sale of goods"] Roman law. A curator bonorum's
sale of the property in an insolvent estate to satisfy
creditors' claims.
distraction doctrine. (1999) The rule that a plaintiff may
not be guilty of contributory negligence if the plaintjff's
attention was diverted from a known danger by a suf
ficient cause. See contributory negligence under NEGLI
GENCE. [Cases; Negligence C--~S06(3), 1286(3).]
distractio pignoris (di-strak-shee-oh pig-nor-is). [Latin
"the sale of something pledged"] Roman law. A credi
tor's sale of something pledged or hypothecated to
obtain satisfaction on a debt.
distrahere (dis-tray-ha-ree), vb. [fro Latin dis "apart" +
trahere "to draw"] To draw apart; to sell; to dissolve,
as in a contract.
distrain, vb. (l3c) 1. To force (a person, usu. a tenant),
by the seizure and detention of personal property, to
perform an obligation (such as paying overdue rent).
[Cases; Landlord and Tenant (;:::;> 270.] 2. To seize
(goods) by distress, a legal remedy entitling the rightful
owner to recover property wrongfully taken. -Also
spelled distrein. -distraint, n.
distrainee. One who is, or whose property is, dis
trained.
distrainer. Someone who seizes property under a
distress. -Also spelled distrainor; distreinor.
distraint. See DISTRESS.
distrein, vb. See DISTRAIN.
distress, n. (13c) 1. The seizure of another's property to
secure the performance of a duty, such as the payment
of overdue rent. [Cases; Landlord and Tenant (:=,263 |
performance of a duty, such as the payment
of overdue rent. [Cases; Landlord and Tenant (:=,263
270.]2. The legal remedy authorizing such a seizure; the
procedure by which the seizure is carried out.
543
"Distress ... may be defined as the taking, either with legal
process, or extrajudicially subject to the performance of
some necessary condition precedent, by a private individ
ual or by an officer of the court, of a personal chattel, out
of the possession of a wrongdoer or defaulter and into the
custody of the law to be impounded as a pledge in order
to bring pressure to bear upon the owner of the chattel to
redress an injury, to perform a duty, or to satisfy a lawful
demand, subject, however, to the right of the owner to
have the chattel returned to him [up]on the injury being
redressed, or the duty performed, or the demand satisfied
or [up]on security being given so to do." EA. Enever, History
of the Law of Distress 7-8 (1931).
"The word distress is derived from distringere, meaning to
put into a strait or pound. In early English custumals the
word used is nam, which is of Scandinavian derivation and
indicates a taking. In the latin legal documents of early
medieval times pignorare is used as well as distringere to
denote the act of distraining, but whereas distringere is
used in relation to distress for rent and services, pignorare
is applied to distress for debts." F.A. Enever, History ofthe
Law of Distress 3 (1931).
distress damage feasant. The right to seize animals or
inanimate chattels that are damaging or encumber
ing land and to keep them as security until the owner
pays compensation. [Cases: Animals C:::>95.)
distress infinite. A distress that the sheriff can repeat
from time to time to enforce the performance of
something, as in summoning a juror or compel
ling a party to appear in court. The goods must be
returned after the delinquent person performs his or
her duty.
"[Flor the most part it is provided that distresses be reason
able and moderate; but, in the case of distress for fealty or
suit of court, no distress can be unreasonable, immoder
ate, or too large: for this is the only remedy to which the
party aggrieved is entitled, and therefore it ought to be
such as is sufficiently compulsory; and, be it of what value
it will, there is no harm done, especially as it cannot be sold
or made away with, but must be restored immediately on
satisfaction made. A distress of this nature, that has no
bounds with regard to its quantity, and may be repeated
from time to time until the stubbornness of the party is
conquered, is called a distress infinite." 3 William Black
stone, Commentaries on the Laws ofEngland 231 (1768).
grand distress. Hist. In a quare impedit action in which
the defendant has failed to appear, a distress of the
defendant's goods and lands to compel the defen
dant's appearance.
second distress. A supplementary distress allowed
when goods seized under the first distress are insuf
ficient to satisfy the claim.
3. The property seized. -Also termed distraint.
distressed debt. See DEBT.
distressed goods. See GOODS.
distressed property. See PROPERTY.
distress sale. See SALE.
distress warrant. See WARRANT (1).
distributable net income. See INCOME.
distribute (di-strib-yoot), vb. 1. To apportion; to divide
among several. 2. To arrange by class or order. 3. To
deliver. 4. To spread out; to disperse. distribution
distributed denial-of-service attack. See DENIAL-OF
SERVICE ATTACK.
distributee (di-strib-yoo-tee), n. (1870) 1. A beneficiary
entitled to payment. 2. An heir, esp. one who obtains
personal property from the estate of an intestate
decedent.
expectant distributee. A prospective heir whose
interest depends on a contingency; an expectant
heir. -Also termed expectant beneficiary. See pro
spective heir under HEIR.
legal distributee. A person whom the law would entitle
to take property under a will.
distribution, n. (l4c) 1. The passing of personal property
to an intestate decedent's heirs; specie, the process of
dividing an estate after realizing its movable assets and
paying out of them its debts and other claims against
the estate. Cf. DESCENT (1). [Cases: Descent and Distri
bution Executors and Administrators C:::>288
318.] 2. The act or process of apportioning or giving
out. distribute, vb.
controlled-securities-offering distribution. See secu
rities-offering distribution (1).
corporate distribution. A corporation's direct or
indirect transfer ofmoney or other property, or incur
ring ofindebtedness to or for the benefit ofits share
holders, such as a dividend payment out ofcurrent or
past earnings. [Cases: Corporations (;:;:> 155(1).)
liquidating distribution. A distribution of trade or
business assets by a dissolving corporation or part
nership. Also termed distribution in liquidation.
[Cases: Corporations C:::>629.]
nonliquidating distribution. A distribution of assets
by a corporation or partnership that is not going out
ofbusiness, such as a distribution ofexcess capital not
necessary for current operations.
partnership distribution. A partnership's payment of
cash or property to a partner out ofearnings or as an
advance against future earnings, or a payment of the
partners' capital in partial or complete liquidation of
the partner's interest. [Cases: Partnership C:::>305.]
probate distribution. The judicially supervised appor
tionment and division -usu. after the payment of
debts and charges -of assets of an estate among
those legally entitled to share. [Cases: Executors and
Administrators C:::>288-318.)
secondary distribution. 1. The public sale of a large
block ofpreviously issued stock. -Also termed sec
ondary offering. See OFFERING. 2. The sale of a large
block ofstock after the close ofthe exchange.
securities-offering distribution. 1. An issuer's public
offering of securities through a formal underwriting
agreement with a broker-dealer. -Also termed con
trolled-securities-offering distribution. 2. An issuer's
public offering of securities on an informal basis, with
or without brokers. Also termed (in both senses)
uncontrolled-securities-offering distribution.
trust distribution. The cash or other property paid
or credited to a trust beneficiary. [Cases: Trusts C=c
270-288.]
uncontrolled-securities-offering distribution. See
securities-offering distribution (2).
distribution channel. One of several routes through
which a manufacturer's or distributor's goods are
marketed. _ In trademark law, identical or similar
marks that are used in the same channel may lead to
consumer confusion. Also termed channel oftrade;
channel ofdistribution. [Cases: Trademarks Cr-=~1110.]
distribution cost. See COST (1).
distribution in kind. (1819) A transfer ofproperty in its
original state, such as a distribution ofland instead of
the proceeds ofits sale.
distribution in liquidation. See liquidating distribution
under DISTRIBUTION.
distribution license. See LICENSE.
distribution right. (1936) Copyright. A copyright
holder's exclusive right to sell, lease, or otherwise
transfer copies ofthe protected work to the public. Cf.
FIRST-SALE DOCTRINE. [Cases: Copyrights and Intel
lectual Property (;::c36.]
distributive (di-strib-ya-tiv), adj. Ofor relating to appor
tioning, dividing, and assigning in separate items or
shares; of or relating to distributing.
distributive clause. (1821) A will or trust provision gov
erning the distribution ofincome and gifts.
distributive deviation. A trustee's authorized or unau
thorized departure from the express distributional
terms of a trust. A trustee must apply to the court
for authoritv to deviate from the terms of a trust.
In America~ law, courts rarely authorize deviation
unless all the beneficiaries consent and there is no
material purpose of the settlor yet to be served. Some
state statutes provide that deviation is permitted if the
court finds that deviation would effectuate the settlor's
intention, though the modification is not expressly
authorized by the trust's provisions. The Pulitzer trust
illustrates the possibility that extraordinary circum
stances not anticipated by the settlor may justify devia
tion, despite an express prohibition within the trust.
Joseph Pulitzer set up a testamentary trust with shares
of World newspaper stock; his will directed that the sale
of these shares was not authorized under any circum
stances. Nonetheless, the court later approved the stock
sale when given evidence that because of hemorrhaging
losses, the trust's continuation was jeopardized. In re
Pulitzer's Estate, 249 N.Y.S. 87 (Sur. Ct. 1931).
distributive finding. A jury's decision partly in favor of
one party and partly in favor of another.
distributive justice. See JUSTICE (1).
distributive share. (18c) 1. The share that an heir or ben
eficiary receives from the legal distribution of an estate.
[Cases: Descent and Distribution C=c20-51; Wills C=c
521-535.]2. The portion (as determined in the partner
ship agreement) ofa partnership's income, gain, loss, or deduction that is passed through to a partner and
reported on the partner's tax return. [Cases: Internal
Revenue (;::c3921; Taxation <:::::>3487.] 3. The share of
assets or liabilities that a partner or partner's estate
acqUires after the partnership has been dissolved.
[Cases: Partnership C=c86, 305.]
distributor. (1884) A wholesaler, jobber, or other manu
facturer or supplier that sells chiefly to retailers and
commercial users.
distributorship. A franchise held by a person or company
who sells merchandise, usu. in a specific area to indi
vidual customers <a car distributorship>. [Cases: Con
tracts C=>202(1).]
dual distributorship. A business structure in which
one party operates a branch or dealership on the same
market level as one or more ofits customers.
district. (17c) 1. A territorial area into which a country,
state, county, municipality, or other political subdi
vision is divided for judicial, political, electoral, or
administrative purposes. 2. A territorial area in which
similar local businesses or entities are concentrated,
such as a theater district or an arts district. Abbr.
D.
assessment district. Tax. A usu. municipal subdivision
in which separate assessments oftaxable property are
made. [Cases: Municipal Corporations C=c450.]
congressional district. (1804) A geographical unit of
a state from which one member of the U.S. House of
Representatives is elected. [Cases: United States
10.]
consolidated school district. See SCHOOL DISTRICT.
election district. A subdivision ofa state, county, or city
that is established to facilitate an election or to elect
governmental representatives for that subdivision.
[Cases: Elections C=c48.]
floterial district (floh-teer-ee-al). A legislative district
that includes several separate districts or political
subdivisions that independently would not be entitled
to additional representation, but whose conglomerate
population entitles the district to another seat in the
legislative body being apportioned. [Cases: Constitu
tional Law C=c3658(8); States C=c27(7).]
influence district. A voting district in which a racial or
ethnic minority group does not constitute a majority
of the voters, but does make up a sufficient propor
tion of the voters to constitute an influential minority,
thus being able to elect its preferred candidate with
a reasonable number of crossover votes from other
groups. Cf. majority-minority district. [Cases: Elec
tions C=c 12(6).]
land district. A federally created state or territorial
division containing a U.S. land office that manages
the disposition of the district's public lands. [Cases:
Public Lands
legislative district. (1840) A geographical subdivision
ofa state for the purpose ofelecting legislative repre
sentatives. [Cases: States
levee district. A local or regional political subdivision
organized to construct and maintain levees within its
territory at public expense. [Cases: Levees and Flood
Control C::::>4.]
majority-minority district. A voting district in which
a racial or ethnic minority group makes up a majority
ofthe voting citizens. [Cases: Elections ~12(6).]
metropolitan district. A special district, embracing
parts ofor entire cities and towns in a metropolitan
area, created by a state to provide unified administra
tion of one or more common services, such as water
supply or public transportation. [Cases: Municipal
Corporations
mineral district. (1812) A particular region of the
country where valuable minerals are typically found
and mined.
municipal utility district. (1921) A publicly owned
corporation, or a political subdivision, that provides
the public with a service or services, such as water,
electricity, gas, transportation, or telecommunica
tions. Abbr. MUD. -Also termed public utility
district (PUD). [Cases: ElectricityC:;:' 1.5.]
school district. See SCHOOL DISTRICT.
special district. A political subdivision that is created
to bypass normal borrowing limitations, to insulate
certain activities from traditional political influence,
to allocate functions to entities reflecting particular
expertise, and to provide a single service within a
specified area |
political influence,
to allocate functions to entities reflecting particular
expertise, and to provide a single service within a
specified area <a transit authority is a special district>.
[Cases: Municipal Corporations C::::>2.]
stock-law district. A district in which cattle or other
stock are prohibited from running free. [Cases:
Animals C::::>50.]
taxing district. A district -constituting the whole
state, a county, a city, or other smaller unit through
out which a particular tax or assessment is ratably
apportioned and levied on the district's inhabitants.
[Cases: Taxation 02017,2077.]
water district. A geographical subdivision created
by a state or local government entity to provide the
public with a water supply. [Cases: Waters and Water
Courses 183.5.]
district attorney. (18c) A public official appointed or
elected to represent the state in criminal cases in a
particular judicial district; PROSECC"TOR (1). Abbr.
D.A. -Also termed public prosecutor; state's attorney;
prosecuting attorney. Cf. UNITED STATES ATTORNEY.
[Cases: District and Prosecuting Attorneys
district clerk. See CLERK (2).
district court. See COURT.
district-court magistrate. See MAGISTRATE.
districting. 'fhe act of drawing lines or establishing
boundaries between geographic areas to create voting
districts. See APPORTIONMENT (3); GERRYMANDERING.
[Cases: Elections <;::)12(6).] districtio (di-strik-shee-oh), n. [Law Latin "distraint"]
Hist. 1. A distress; a distraint. 2. The right of distress.
3. Something (such as a good or animal) that can be
distrained. 4. A territory within which distraint can
be exercised. 5. Any compulsory proceeding.
district judge. See JUDGE.
District ofColumbia. The seat of the U.S. government,
situated on the Potomac River between Maryland and
Virginia. _ Neither a state nor a territory, it is con
stitutionally subject to the exclusive jurisdiction of
Congress. Abbr. D.C. (Cases: District of Columbia
~1-36.]
district parish. See PARISH.
district school. See SCHOOL.
distringas (di-string-gas), n. [Law Latin "you are to
distrain"] 1. A writ ordering a sheriff to distrain a defen
dant's property to compel the defendant to perform an
obligation, such as appearing in court or giving up a
chattel to a plaintiff awarded judgment in a detinue
action. 2. A writ ordering the sheriff to seize jurors'
goods to compel them to appear for juryservice. 3. An
equitable process of execution against a corporation
that has refused to obey a summons. [Cases: Execu
tion 4. Hist. An order, issued initially from the
Court of Exchequer, then the Court of Chancery, and
finally the High Court ofJustice, for someone inter
ested in purchasing Bank ofEngland stock, temporar
ily restraining the bank officers from transferring the
stock or paying a dividend on it. -This proceeding
was used to prevent fraudulent dealing by a trustee or
other stockholder. 'fhe relief was only temporary, and
if the bank received a request from the stockholder
to permit a stock deal, the bank had to warn the dis
tringing party to promptly obtain a restraining order
or a writ of injunction, or else the stock deal would go
through.
distringas juratores (di-string-gas joor-a-tor-eez), n.
[Law Latin "you are to distrain the jurors"] Hist. A writ
ordering the sheriff to distrain jurors or their property
to compel their appearance before the judges ofassize
and nisi prius for jury duty on an appointed day.
distringas nuper vicecomitem (di-string-gas n[y]oo-par
vI-see-kom-i-tam), n. (Law Latin "you are to distrain
the late sheriff"] Hist. 1. A writ ordering a sheriff's suc
cessor to distrain the former sheriff's property until the
former sheriffbrings in a defendant to answer the plain
tiff's charge, sells goods attached under afieri facias, or
performs some other obligation that the former sheriff
should have completed while still in office. 2. A writ
calling on an ex-sheriff to account for the proceeds
taken in execution.
distringas vice comitem (di-string-gas VI-see kom-i
tam), n. [Law Latin "you are to distrain the sheriff"]
Hist. A distringas writ ordering the coroner to distrain
the sheriff for not executing a writ ofvenditioni exponas.
See VENDITIONI EXPONAS.
distringere 546
distringere (di-strinj-<'l-ree), vb. [Latin] To distrain; to
coerce; to compel. The first-person form ofthe verb
was distringo ("I distrain").
disturbance, n. (l3e) 1. An act causing annoyance or
disquiet, or interfering with a person's pursuit of a
lawful occupation or the peace and order of a neigh
borhood, community, or meeting. [Cases: Disorderly
Conduct ~106.] 2. At common law, a wrong done to
an incorporeal hereditament by hindering the owner's
enjoyment ofit.
disturbance ofa public meeting. The unlawful interfer
ence with the proceedings ofa public assembly. [Cases:
Breach 0fthe Peace ~1(4).]
"Generally speaking, any conduct which, being contrary to
the usages of the particular sort of meeting and class of
persons assembled, interferes with its due progress and
services, or is annoying to the congregation in whole or
in part, is a disturbance; and a meeting may be said to be
'disturbed' when it is agitated, aroused from a state of
repose, molested, interrupted, hindered, perplexed, disqui
eted, or diverted from the object of the assembly." 27 c.j.S.
Disturbance of Public Meetings 1, at 817 (1959).
disturbance ofcommon. At common law, a wrongful
interference with, or impediment to, another's right to
commonable property, such as a wrongful fencing or
surcharge on the common.
''The disturbance of common comes next to be considered;
where any act is done, by which the right of another to his
common is incommoded or diminished. This may happen,
in the first place, where one who hath no right of common,
puts his cattle into the land; and thereby robs the cattle of
the commoners of their respective shares of the pasture.
Or if one, who hath a right of common, puts in cattle which
are not commonable, as hogs and goats; which amounts to
the same inconvenience" 3 William Blackstone, Commentar
ies on the Laws ofEng/and 237 (1768).
disturbance offranchise. At common law, a wrongful
interference with a liberty or privilege.
"Disturbance of franchises happens when a man has the
franchise of holding a courtleet, of keeping a fair or
market, of freewarren, of taking toll, of seizing waifs or
estrays, or (in short) any other species of franchise what
soever, and he is disturbed or incommoded in the lawful
exercise thereof." 3 William Blackstone, Commentaries on
the Laws ofEng/and 236 (1768).
disturbance ofpatronage. A wrongful obstruction ofa
patron from presenting a clerk to a benefice.
disturbance ofpublic worship. Any conduct that inter
feres with the peaceful, lawful assembly of people for
religious exercises. [Cases: Disturbance of Public
Assemblage ~1.]
disturbance of tenure. A stranger's ouster of a tenant
from a tenancy. The tenant's lord could recover
damages for the ouster.
disturbance ofthe peace. See BREACH OF THE PEACE.
disturbance ofways. An impediment to a person's lawful
right-oi-way, as by an obstruction.
disturber. See IMPEDITOR.
disturbing the peace. See BREACH OF THE PEACE.
dittay (dit-ay), n. Scots law. 1. The grounds for an indict
ment. 2. An indictment. divadiatus. See DEVADIATUS.
diverse, adj. 1. Of or relating to different types <the
attorney handles diverse cases ranging from probate
matters to criminal law>. 2. (Of a person or entity)
having a different citizenship from the party or parties
on the other side ofthe lawsuit <the parties are diverse
because the plaintiffs are citizens of Illinois and the
defendant is a New York citizen>. See diversity juris
diction under JURISDICTION. [Cases: Federal Courts
~281.] 3. (Of a group of people) including people of
different races, sexes, nationalities, and cultural back
grounds <the school has a diverse student body>.
diversification, n. 1. A company's movement into a
broader range of products, usu. by buying firms already
serving the market or by expanding existing opera
tions <the soft-drink company's diversification into
the potato-chip market has increased its profits>. 2.
The act of investing in a wide range of companies to
reduce the risk ifone sector ofthe market suffers losses
<the prudent investor's diversification ofthe portfolio
among 12 companies>. -diversify, vb.
diversified holding company. See COMPANY.
diversified investment company. See COMPANY.
diversion, n. (17c) 1. A deviation or alteration from
the natural course of things; esp., the unauthorized
alteration of a watercourse to the detriment ofa lower
riparian owner, or the unauthorized use offunds. 2. A
distraction or pastime. -divert, vb.
diversion program. (1972) 1. Criminal law. A program
that refers certain criminal defendants before trial to
community programs on job training, education, and
the like, which if successfully completed may lead to
the dismissal of the charges. -Also termed pretrial
diversion; pretrial intervention. Cf. deferred judgment
under JUDGMENT. [Cases: Sentencing and Punishment
~2051-2054.] 2. A community-based program or
set of services designed to prevent the need for court
intervention in matters ofchild neglect, minor juvenile
delinquency, truancy, or incorrigibility . Sustained by
government funding, the program provides services
quickly and in a nonadversarial manner so that there
is no need for a formal court trial.
Diversite des courts (di-v<'lr-si-tay d<'l koort). [Law
French] A treatise on courts written in French, sup
posedly by Fitzherbert during the reign ofEdward III.
It was printed initially in 1525 and again in 1534.
Also spelled Diversite des courtes.
"[Flor in the ancient treatise, entitled diversite de courtes ...
we have a catalogue of the matters of conscience then cog
nizable by subpoena in chancery, which fall within a very
narrow compass." 3 William Blackstone, Commentaries on
the Laws of Eng/and 53 (1768).
diversity, n. 1. DIVERSITY OF CITIZENSHIP. 2. Ethnic,
socioeconomic, and gender heterogeneity within a
group; the combination within a population ofpeople
with different backgrounds . The Supreme Court has
found diversity in education to be a compelling govern
ment interest that can support a narrowly tailored affir
mative-action plan. Grutter v. Bollinger, 123 S.Ct. 2325
547
(2003). 3. Hist. A plea that a prisoner to be executed is
not the one that was accused and found guilty, at which
point a jury is immediately impaneled to try the issue
ofthe prisoner's identity.
diversity, adj. Of, relating to, or involving diversity juris
diction <a diversity case>.
diversity jurisdiction. See JURISDICTION.
diversity ofcitizenship. (1876) A basis for federal-court
jurisdiction that exists when (1) a case is between
citizens of different states, or between a citizen of a
state and an alien, and (2) the matter in controversy
exceeds a specific value (now $75,000).28 USCA 1332.
For purposes ofdiversity jurisdiction, a corporation
is considered a citizen of both the state of incorpora
tion and the state orits principal place ofbusiness. An
unincorporated association, such as a partnership, is
considered a citizen of each state where at least one of
its members is a citizen. Often shortened to diversity.
See diversity jurisdiction under JURISDICTION. [Cases:
Federal Courts (;:::>281-360.]
complete diversity. (1925) In a multiparty case, diver
sity between both sides to the lawsuit so that all plain
tiffs have different citizenship from all defendants .
Complete diversity must exist for a federal court to
have diversity jurisdiction over the matter. The rule of
complete diversity was first laid down by Chie[Justice
Marshall in Strawbridge v. Curtiss, 7 U.S. (3 Cranch)
267 (1806). [Cases: Federal Courts C=286.]
manufactured diversity. (1968) Improper or collu
Sively created diversity of citizenship for the sole or
primary purpose of creating federal jurisdiction .
Manufactured diversity is prohibited by 28 USCA
1359. [Cases: Federal Courts (;:=303.]
divertee. A defendant who participates in a diversion
program. See DIVERSION PROGRAM.
dives costs (dI-veez), n. Ordinary court costs granted to
a successful party, as distinguished from limited costs
(such as out-of-pocket costs) allowed to a successful
pauper who sued or defended in forma pauperis . The
term derives from the name of Dives, the supposed
name of the rich man in the parable of the rich man
and Lazarus ( |
derives from the name of Dives, the supposed
name of the rich man in the parable of the rich man
and Lazarus (Luke 16:19-31). Dives is a Latin word
meaning "rich."
divestitive fact. See FACT.
divestitive publication. See PUBLICATION.
divestiture (di-ves-ta-char or dI-), n.(l7c) l. The loss or
surrender of an asset or interest. 2. A court order to a
party to dispose of assets or property. 3. Antitrust. A
court order to a defendant to rid itselfof property, secu
rities, or other assets to prevent a monopoly or restraint
of trade. divest, vb.
divestment, n. (1844) 1. Property. The cutting short ofan
interest in property before its normal termination. 2.
The complete or partial loss of an interest in an asset,
such as land or stock. 3. DISINVESTMENT (2). -divest,
vb. dividend
divide-and-pay-over rule. (1916) Wills & estates. The
principle that ifthe only provisions in a testamentary
disposition are words ordering that payment be made at
some time after the testator's death, time will be of the
essence and the interest is future and contingent rather
than vested and immediate. [Cases: Wills (::.-;'630(6).]
divided court. (18c) An appellate court whose opinion
or decision in a particular case is not unanimous, esp.
when the majority is slim, as in a 5-to-4 decision of
the U.S. Supreme Court. [Cases: Appeal and Error
1123; Courts C-~102(2); Federal Courts 928.]
divided custody. See CUSTODY (2).
divided-damages rule. Maritime law. The obsolete prin
ciple that when two parties are jointly liable to a third
party for a tort, each party is liable for only half the
damages. The courts now apply a comparative-neg
ligence standard. [Cases: Collision C=143.]
"For over a hundred years admiralty law embraced the
rule of 'divided damages' in collision cases .... In 1975,
in United States v. Reliable Transfer Co., 421 U.S. 397, 95
5.0. 1708,44 L.Ed.2d 251 (1975), the Supreme Court
jettisoned that inequitable and illogical rule in favor of
proportionate allocation of fault among jointtortfeasors
in collision cases. Each vessel now is liable to the other
offending vessel in contribution for that part of the total
damages proportionate to its fault, and is liable for its per
capita (Virile) share only when the respective faults of the
vessels are equal, or when proportionate fault can not be
ascertained." Frank L. Maraist, Admiralty in a Nutshell 165
(2d ed. 1988).
dividend. (17c) A portion of a company's earnings or
profits distributed pro rata to its shareholders, usu. in
the form of cash or additional shares. Corpora
tions C=155(1).]
accumulated dividend. A dividend that has been
declared but not yet paid. Also termed accrued
dividend. [Cases: Corporations 151.]
accumulative dividend. See cumulative dividend.
asset dividend. A dividend paid in the form of property,
usu. the company's product, rather than in cash or
stock. -Also termed property dividend.
bond dividend. A dividend in which a shareholder
receives a bond instead of scrip, property, or money.
capital-gain dividend. A taxable payment to a mutual
fund shareholder . The payment is the shareholder's
proportional share ofthe net capital gains realized by
securities sales from the mutual fund's portfolio.
Also termed capital-gain distribution.
cash dividend. A dividend paid to shareholders in the
form of money. [Cases: Corporations C= 152.]
consent dividend. A dividend that is not actually paid
to the shareholders, but is taxed to the shareholders
and increases the basis in their stock investment . A
corporation declares a consent dividend to avoid or
reduce an accumulated-earnings or personal-hold
ing-company penalty tax.
constructive dividend. A taxable benefit derived by a
shareholder from the corporation even though the
benefit was not designated a dividend . Examples
dividenda 548
include excessive compensation, bargain purchases
of corporate property, or shareholder use of corpo
rate property for personal reasons. [Cases: Internal
Revenue G'::::' 3750-3768.J
cumulative dividend. A dividend that grows from
year to year when not paid . A cumulative dividend
is usu. on preferred shares, and it must be paid in
full before common shareholders may receive any
dividend. Ifthe corporation does not pay 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 accumulative dividend. Cf. noncumulative
dividend. [Cases: Corporations (;:::>68,156.1
deferred dividend. A dividend that is declared, but is
payable at a future date.
deficiency dividend. A dividend paid to reduce or avoid
personal-holding-company tax in a prior year.
disguised dividend. See informal dividend.
extraordinary dividend. A dividend paid in addition
to a regular dividend, usu. because of exceptional
corporate profits during the dividend period. -Also
termed extra dividend; nonrecurring diVidend; special
dividend. [Cases: Corporations (;:::;, 155(1).J
fixed-return dividend. A dividend that is constant
throughout the investment's life.
informal dividend. A payment ofsalary, rent, interest,
or the like to or for a shareholder as a substitute for a
dividend. Also termed disguised dividend.
liability dividend. See scrip dividend.
liquidation dividend. A dividend paid to a dissolving
corporation's shareholders, usu. from the capital of
the corporation, upon the decision to suspend all or
part of its business operations. -Also termed liqui
dating dividend. [Cases: Corporations (;:::;,629.1
nimble dividend. A dividend paid out of current
earnings when there is a deficit in the account from
which dividends may be paid . Some state statutes
prohibit nimble dividends.
noncumulative dividend. A dividend that does not
accrue for the benefit of a preferred shareholder if
there is a passed dividend in a particular year or
period. Cf. cumulative dividend. [Cases; Corpora
tions
nonrecurring dividend. See extraordinary dividend.
passed dividend. A dividend that is not paid when due
by a company that has a history of paying regular
dividends.
preferred dividend. A dividend paid to preferred share
holders, who are generally paid a fixed amount and
take priority over common shareholders. [Cases: Cor
porations (;:::;, 151, 156.1
property dividend. See asset dividend.
reinvested dividend. A dividend that is used to purchase
additional shares in the corporation, instead ofbeing taken in cash by the shareholder. See DIVIDEND- REIN
VESTMENT PLAN.
scrip dividend. A dividend paid in certificates entitling
the holder to ownership of capital stock to be issued
in the future . This type ofdividend may signal that
the corporation's cash flow is poor. -Also termed
liability dividend.
special dividend. See extraordinary dividend.
stock dividend. A dividend paid in stock expressed as
a percentage ofthe number of shares already held by
a shareholder. [Cases: Corporations (;:::;, 157.J
unpaid dividend. A declared but unpaid dividend.
year-end dividend. An extra dividend paid at the end
of the fiscal year depending on the amount of the
profits.
dividenda (div-i-den-d<l), n. [fr. Latin dividere "to
divide"] Hist. Something to be divided; an indenture.
dividend addition. An amount added to the face value
of a life-insurance policy and purchased by using a
dividend as a single premium payment. [Cases: Insur
ance
dividend-credit rule. The principle that a corporate
reserve fund amassed from unpaid dividends on
preferred stock must be used to pay subsequent div
idends on preferred stock before dividend payments
on common stock. Also termed cast-iron-pipe
doctrine.
dividend date. The date on which a corporation distrib
utes dividends to record owners of stock shares. See
record date under DATE. Cf. EX-DIVIDEND DATE.
dividend income. See INCOME.
dividend-payout ratio. A profitability ratio computed
by diViding annual dividends per share by earnings
per share.
dividend preference. The right of a holder of preferred
shares to receive a dividend before the company pays
dividends to holders of common shares. See preferred
stock under STOCK. Corporations (;:::;, 156.1
dividend-received deduction. (1957) A deduction
allowed to a corporate shareholder for dividends
received from a domestic corporation. IRC (26 GSCA)
243-247. Internal Revenue (;:;;)3777.]
dividend-reinvestment plan. (1969) A stock-purchase
program that allows investors to reinvest their divi
dends, and perhaps convert additional voluntary
payments, into shares of the entity's common stock,
usu. with no sales charge, and sometimes at a discount
from the stock's market price . Although the investor
never receives the cash, it is still treated as income to
the investor. An investor may be allowed to make
optional cash purchases of additional stock. -Abbr.
DRIP; DRP.
brokerage-run dividend-reinvestment plan. A formal
or informal program managed by a brokerage and
allowing shareholders to reinvest dividends in a port
549
folio, often at no cost. _ Brokerage-run plans are usu.
limited to dividend reinvestment.
company-run dividend~reinvestment plan. A program
operated by a corporation for its own shareholders.
-Company-run plans may offer additional features
such as IRAs.
transfer-agent-run dividend-reinvestment plan. A
program administered by a financial institution for
several companies. -An investor can participate in
more than one DRIP program Simultaneously and
also make additional cash investments in multiple
companies.
dividend yil;ld. The current annual dividend divided by
the market price per share.
divide the assembly. Parliamentary law. To order that
votes in a meeting be counted. -Also termed challenge
the vote; divide the house; doubt the vote. See counted
vote under VOTE (4).
divide the house. See DIVIDE THE ASSEMBLY.
divide the question. Parliamentary law. To break a long
or complex motion, usu. one covering more than one
subject, into shorter motions that the assembly consid
ers independently.
divinare (div-i-nair-ee), vb. [Latin] To foretell or divine
(something).
divinatio (div-i-nay-shee-oh), n. [Latin] Roman law. A
preliminary process for deciding which oftwo or more
applicants had the best claim to conduct a criminal
prosecution against an accused_
divine law. Law that emanates from a supernatural
source, such as a deity. Cf. NATURAL LAW.
divine right ofkings. The political theory that the sover
eign is a direct representative ofGod and has the right
to rule absolutely by virtue ofroyal birth.
"Divine Right of Kings ... originated in the mediaeval
concept of God's award of temporal power to civil rulers
and spiritual power to the Church. It was claimed by the
earlier Stuart kings in England, and explains many of their
attitudes in the struggle which developed between them
and Parliament for political sovereignty .... The principle
of divine right was submerged during the Commonwealth
but re-emerged under James II, but disappeared with his
flight and abdication:' David M. Walker, The Oxford Com
panion to Law 366 (1980).
divine service. 1. Hist. A feudal tenure in which the
tenants were obligated to perform special divine func
tions, such as singing at a certain number ofmasses or
distributing a specified amount in alms. 2. A public
worship service.
divisa (di-VI-Z;:l), n. lfr. French diviser "to divide"] 1. A
division, as ofgoods by a will; a devise. 2. A boundary of
neighboring lands. 3. A court held on such a boundary
to settle the tenants' disputes.
divisible contract. See severable contract under
CONTRACT.
divisible divorce. See DIVORCE.
divisible obligation. See OBLIGATION. divorce
divisible offense. See OFFENSE (1).
divisible promises. See PROMISE.
divisim (di-vI-z"m). [Law Latin] Hist. Severally; sepa
rately.
division. 1. Parliamentary law. A counted vote. See
counted vote under VOTE (4); DIVIDE THE ASSEMBLY.
Also termed division ofthe assembly; division of the
house; division vote. 2. Parliamentary law. The separa
tion of a long or complex motion, usu. one covering
more than one subject, into shorter motions that the
assembly considers independently_ Also termed
division ofthe question. See DIVIDE THE QUESTION.
standing division. See standing vote under VOTE (4).
3. RESTRICTION (4).
divisional application. See PATENT APPLICATION.
divisional bond. See BOND (3).
divisional court. See COURT.
divisional security. See SECURITY.
division offees. See FEE-SPLITTING.
division of powers. (I8c) The allocation of power
between the national government and the states.
Under the Tenth Amendment, powers not delegated to
the federal government are reserved to |
between the national government and the states.
Under the Tenth Amendment, powers not delegated to
the federal government are reserved to the states or to
the people. But today the Tenth Amendment provides
only a limited check on Congress's power to regulate
the states. Cf. SEPARATION OF POWERS. [Cases: States
C=>4.16.]
division ofproperty. See PROPERTY SETTLEMENT (1).
division ofthe assembly. See DIVISION (1).
division ofthe house. See DIVISION (1).
division ofthe question. See DIVISION (2).
division order. Oil & gas. A contract for the sale of oil
or gas, specifying how the payments are to be distrib
uted. _ Royalty owners enter into division orders to sell
minerals and to instruct how payments are to be made
under a mineral lease. Working-interest owners also
commonly sign division orders to instruct purchasers
how payments are to be divided. [Cases: Mines and
Minerals (..,.'-::>79.1(3).]
division vote. See DIVISION (1)_
divisum imperium (di-vI-z"m im-peer-ee-"m), n_ [Latin
"a divided empire"] Divided jurisdiction; alternate
jurisdiction, as ofcourts.
"This main sea begins at the low-water-mark. But between
the high-water-mark and the low-water-mark, where the
sea ebbs and flows, the common law and admiralty have
divisum imperium, an alternate jurisdiction; one upon the
water, when it is full sea; the other upon the land, when it
is an ebb." 1 William Blackstone, Commentaries on the Laws
ofEngland 107 (l765).
divorce. (14c) The legal dissolution of a marriage by a
court. Also termed marital dissolution; dissolution
ofmarriage. Cf. ANNULMENT. [Cases: Divorce C=>1.]
divorce, vb.
"When used Without qualification, the term [divorce]
imports a dissolution of the marriage relation between
550 divorce
husband and wife, that is, a complete severance of the tie
by which the parties were united. However, in its common
and wider use, the term includes the dissolution of a valid
marriage, a formal separation of married persons, and the
annulment of a marriage void from the beginning.
"So, while the term 'divorce' has sometimes been broadly
defined or applied to include both decrees of nullity and
decrees of dissolution of marriage, especially where the
marriage was not void but only VOidable at the option of
the injured party, this has been declared to be not in accord
with modern usage, and generally, the term denotes only
dissolution or suspension of a marital relation, and does
not include annulment of an invalid marriage." 27A CJS
Divorce 2, at 31-32 (1986).
absolu~e divorce. See divorce a vinculo matrimonii.
bifurcated divorce. See divisible divorce.
collaborative divorce. A divorce negotiated in a non
adversarial forum, usu. between spouses who, with or
without a lawyer, are assisted as needed by a team of
experts in law, mental health, and financial matters
(such as taxes and real estate).
conditional divorce. See conversion divorce.
contested divorce. 1. A divorce that one spouse opposes
in court. 2. A divorce in which the spouses litigate.
In this sense, although both spouses may want the
divorce, they disagree on the terms of the divorce
decree. Cf. uncontested divorce.
conversion divorce. A divorce granted after (1) a legal
separation has been granted or the parties have signed
a separation agreement, and (2) the parties have lived
separately for a statutorily prescribed period. Also
termed convertible divorce; conditional divorce. [Cases:
Divorce
divisible divorce. (I943) A divorce whereby the
marriage itself is dissolved but the issues incident to
the divorce, such as alimony, child custody, and visi
tation, are reserved until a later proceeding. _ This
type of divorce can be granted when the court has
subject-matter jurisdiction but lacks personal juris
diction over the defendant-spouse. The doctrine of
divisible divorce was recognized by the Supreme
Court in Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213
(1948), and Vanderbilt v. Vanderbilt, 354 U.S. 416, 77
S.Ct. 1360 Also termed bifurcated divorce.
146.]
divorce a mensa et thoro (ay men-Sd et thor-oh). [Latin
"(divorce) from board and hearth"] (18c) Hist. A
partial or qualified divorce by which the parties were
separated and allowed or ordered to live apart, but
remained technically married . This type ofdivorce,
abolished in England in 1857, was the forerunner of
modern judicial separation. -Also termed separa
tion a mensa et thoro; separation from bed and board;
limited divorce; legal separation; judicial separation.
[Cases: Divorce \;=> 155.]
"[The Ecclesiastical Courts] grant also what is called a
divorce a mensa et thoro, or rather what we should call a
judicial separation, i.e. they release the parties from the
duty of living together on grounds of cruelty or miscon
duct ...." William Geldart, Introduction to English Law 38
(D.C.M. Yardley ed., 9th ed. 1984). divorce a vinculo matrimonii (ay ving-kYd-loh ma-trd
moh-nee-I). [Latin "(divorce) from the chains of
marriage"] (17c) A total divorce of husband and wife,
dissolving the marriage tie and releaSing the parties
wholly from their matrimonial obligations. At
common law, but not always in canon law, this type of
divorce bastardized any children from the marriage
and was granted on grounds that existed before the
marriage. In England, the Matrimonial Causes Act
of 1857 introduced statutory divorce a vinculo mat
rimonii. Usu. shortened to divorce. Also termed
absolute divorce. Cf. limited divorce. [Cases: Divorce
Dominican divorce. See Mexican divorce.
ex parte divorce (eks pahr-tee). (1870) A divorce pro
ceeding in which only one spouse participates or
appears in court. [Cases: Divorce C::) 146.]
fault divorce. A divorce granted to one spouse on
the basis of some proven wrongful act (grounds for
divorce) by the other spouse. Although all states
now have some form ofno-fault divorce, some juris
dictions still consider a spouse's fault in precipitating
the divorce, esp. when dividing marital property or
when awarding alimony. Traditionally, the common
grounds for a fault divorce were adultery, abandon
ment, imprisonment, and physical or mental cruelty;
the defenses to alleged fault in a petition for divorce
were condonation, connivance, collusion, recrimi
nation, and insanity. Section 303(e) of the Uniform
Marriage and Divorce Act has abolished the defenses
to divorce. Cf. noJault divorce.
foreign divorce. (I83l) A divorce obtained outside the
state or country in which one spouse resides. [Cases:
Divorce \;=>351-420.]
Haitian divorce. See Mexican divorce.
hotel divorce. Slang. A form of collusive divorce
occurring before widespread passage of no-fault
divorce laws in which the spouses agree to fake an
adultery scene to create "fault." Cf. noJault divorce.
"Clearly a lawyer may not originate or participate in a
scheme to make it appear to the court that a ground for
divorce has occurred when this is not the fact. Such is the
case in the so-called 'hotel divorces,' prevalent in jurisdic
tions where adultery is the only ground for divorce, and
based on the principle that intercourse will be presumed
from apparently uninhibited opportunity." Henry S. Drinker,
Legal Ethics 123-24 (1953).
legislative divorce. Hist. The legal termination of a par
ticular marriage, through a statute enacted by the leg
islature rather than by a court's decree. -In the 18th
century, Colonial American legislatures granted these
special statutes. In 1816, the House of Burgesses of
Virginia granted a divorce to Rachel Robards Jackson,
the wife of then President Andrew Jackson, from a
former spouse. Mrs. Jackson's untimely death was
attributed to her reaction to the scandal that she had
married Jackson before the divorce was procured.
Now only state courts have authority to grant decrees
of divorce. -Also termed parliamentary divorce.
[Cases: Divorce
limited divorce. (1831) 1. A divorce that ends the legal
relationship of marriage by court order but does not
address financial support, property distribution, or
care and custody of children. In the days before
no-fault divorce, a spouse might seek a quick divorce
in a state with a short reSidency requirement (such
as Nevada). Then courts in the home state would
give full faith and credit only to the dissolution of
the marital res, while maintaining sale jurisdiction
over property-division, support, and custody issues.
[Cases: Divorce 2. Loosely, a legal separa
tion. 3. See divorce a mensa et thoro. Cf. divorce a
vinculo matrimonii.
mail-order divorce. (1922) Slang. A divorce obtained
by parties who are not physically present or domiciled
in the jurisdiction purporting to grant the divorce .
Such a divorce is not recognized in the United States
because of the absence of the usual bases for juris
diction.
Mexican divorce. A divorce obtained in Mexico by mail
order or by the appearance of one spouse who does
not have a Mexican domicile . Neither type is rec
ognized in the United States. Also termed Domini
can divorce (if granted in the Dominican Republic);
Haitian divorce (if granted in Haiti).
migratory divorce. (1911) A divorce obtained in a
jurisdiction other than the marital domicile; esp., a
divorce obtained by a spouse who moves to, or tem
porarily resides in, another state or country to get
the divorce.
no-fault divorce. (1969) A divorce in which the parties
are not required to prove fault or grounds beyond
a showing of the irretrievable breakdown of the
marriage or irreconcilable differences . The system
ofno-fault divorce has been adopted throughout the
United States. By 1974,45 states had adopted no-fault
divorce; by 1985, every state but New York had
adopted some form of it. In New York -one ofthe
last bastions offault grounds for divorce -the closest
equivalent is a conversion divorce one year after legal
separation or a legal-separation agreement. Cf. fault
divorce; hotel divorce. [Cases: Divorce C=' 12.)
parliamentary divorce. See legislative divorce.
pro-con divorce. Slang. An uncontested divorce
granted after only the plaintiff appears at the pro
ceeding (since the defendant contests nothing).
quickie div()rce. Slang. A fast divorce granted with
minimal paperwork. Also termed quick divorce.
rabbinical divorce. A divorce granted under the
authority of a rabbi. This type of divorce affects
the relationship of the parties under the tenets of
Judaism. It affects particularly a Jewish woman's
ability to remarry in accordance with Judaic law. In
the United States, it is not generally a divorce recog
nized in civil courts. Also termed get.
uncontested divorce. A divorce that is unopposed
by the spouse who did not initiate it. Cf. contested
divorce. divorce agreement. A contractual agreement that sets
out divorcing spouses' rights and responsibilities
regarding property, alimony, custody, visitation, and
child support. The divorce agreement usu. becomes
incorporated by court order as a part of the divorce
decree and thus is enforceable by contempt, among
other remedies. -Also termed agreement incident to
divorce; marital settlement agreement; separation agree
ment. Cf. PROPERTY SETTLEMENT. [Cases: Husband and
Wife C=,277.)
divorce decree. See DECREE.
divorce proctor. A person (such as a guardian) who is
appointed to protect the interest of the state or children
in a divorce action. Sometimes shortened to proctor.
[Cases: Infants (>76.)
divortium (di-vor-shee-;>m), n. [Latin) 1. Roman law.
Divorce; a severance of the marriage tie . In classical
law, no grounds were required. Cf. REPUDIUM. 2. Eccles.
law. A decree allowing spouses to separate or declaring
their marriage invalid.
"Owing to the fact that the church had but slowly made
up her mind know to know no such thing as a divorce in
our acceptation of that term (i.e., the dissolution of a valid
marriage) the term divortium is currently used to signify
two very different things, namely (1) the divortium quoad
roYum, which is the equivalent of our 'judicial separation,'
and (2) what is very often called the divortium quoad
vinculum but is really a declaration of nullity. The persis
tence of the word divoytium in the latter case is a trace of an
older state of affairs, but in medieval practice the decree of
nullity often served the purpose of a true divorce; spouses
who had quarrelled began to investigate their pedigrees
and were unlucky if they could discover no impedimentum
dirimens." 2 Frederick Pollock & Frederic William Maitland,
History ofEnglish Law Before the Time ofEdward 1393 n.5
(2d ed. 1899; repro 1959).
D.J. See district judge under Jt:DGE.
DJIA. abbr. DOW JONES INDU |
D.J. See district judge under Jt:DGE.
DJIA. abbr. DOW JONES INDUSTRIAL AVERAGE.
DLA. abbr. DEFENSE LOGISTICS AGENCY.
DLiC. See documentary letter ofcredit under LETTER OF
CREDIT.
DLOP. abbr. Dismissal for lack of prosecution. See dis
missal for want ofprosecution under DISMISSAL (1).
DLOP docket. See DWOP docket under DOCKET (z).
DLSA. abbr. DEFENSE LEGAL SERVICES AGENCY.
DMCA. abbr. DIGITAL MILLENNIUM COPYRIGHT ACT.
DNA. abbr. Deoxyribonucleic acid; the double-helix
structure in cell nuclei that carries the genetic infor
mation of most living organisms.
DNA identification. (1987) A method ofscientific iden
tification based on a person's unique genetic makeup;
sped., the comparison ofa person's deoxyribonucleic
acid (DNA) a patterned chemical structure of genetic
information with the DNA in a biological specimen
(such as blood, tissue, or hair) to determine whether the
person is the source of the specimen . DNA evidence
is used in criminal cases for purposes such as identify
ing a victim's remains, linking a suspect to a crime, and
exonerating an innocent suspect. Also termed DNA
fingerprinting; genetic fingerprinting: DNA profiling;
DNA typing. Cf. HUMAN-LEUKOCYTE ANTIGEN TEST.
[Cases: Criminal Law C=>388.2; Evidence 150.]
DNR order. abbr. DO-NOT-RESUSCITATE ORDER.
do (doh). [Latin] Rist. I give. -This term was considered
the oldest and aptest for a feoffment and gift.
DOC. abbr. DEPARTMENT OF COMMERCE.
dock, n. 1. A structure that encloses water. often between
two piers, in which ships are received for loading,
unloading, safekeeping, or repair. [Cases: Wharves
C=>4.] 2. 'The part of a warehouse or other building
(usu. elevated with oversized doors) at which trucks
are received for loading and unloading. 3. English
law. In a criminal court, the enclosure in which the
prisoner is placed during trial <it was through his own
deliberate choice that Mr. Bourne found himself in
the dock at the Old Bailey, charged with a felony>. See
BAIL DOCK.
dockage. A charge for the use of a dock, esp. while a
vessel is undergoing repairs.
docket, n. (15c) 1. A formal record in which a judge or
court clerk briefly notes all the proceedings and filings
in a court case <review the docket to determine the
filing date>. -Also termed judicial record: bench
docket: docket sheet. [Cases: Appeal and Error
493-543; Criminal LawC~1086.1-1088.20.]
appearance docket. (I8c) A list of the parties and
lawyers participating in an action, together with a
brief abstract of the successive steps in the action.
[Cases: Appearance Federal Civil Procedure
C=>561.j
judgment docket. (1826) A book that a court clerk keeps
for the entry or recordation of judgments, giving
official notice ofexisting judgment liens to interested
parties. Also termed judgment book; judgment file;
judgment record; judgment roll. [Cases: )udgment C=>
277, 284.]
2. A schedule of pending cases <the case is third on
Monday's trial docket>. Also termed court calendar;
cause list; trial calendar. [Cases: Criminal Law
632(2); Federal Civil Procedure 1991; Trial (;::::>
9(1).]
DWOP docket. A list ofcases that the court has set for
possible dismissal for want of prosecution. Also
termed doowop docket; DLOP docket. See dismissal
for want ofprosecution under DISMISSAL (1).
preferred docket. (1993) A list of cases set for trial,
arranged in order of priority. -Criminal cases are,
for example, generally given precedence over civil
cases on the preferred docket because of the consti
tutional right to a speedy trial. lCases: Criminal Law
C::::c632(2); Trial (;=:> 13.]
3. DOCKET CALL <the agreed judgment was Signed at
the court's uncontested docket call on May 24>. 4. Par
liamentary law. A list ofeach motion, report, election,
and other business that awaits a deliberative assembly's
consideration, from which a board or officer prepares and circulates an agenda for each meeting or for a series
of upcoming meetings <in planning the meeting, the
chair worked from an exhaustive docket>. See AGENDA.
S. A written abstract that provides specific information
(usu. about something attached); esp., a label <check
the docket to determine the goods' destination and
value>. 6. Rist. A notary's attestation at the end of a
deed or other instrument; esp., the attestation at the
end ofan instrument ofseisin. -Also spelled docquet.
See MANU ALIENA.
docket, vb. (17c) 1. To make a brief entry in the docket of
the proceedings and filings in a court case <to docket
the filing date>. 2. To abstract and enter in a book <to
docket a judgment>. 3. To schedule (a case) for trial
or some other event <the case was docketed for a May
trial>.
docket call. (1899) A court session in which attornevs
(and sometimes parties) appear in court to report the
status oftheir cases. -For example, they may announce
readiness for trial or report the suit's settlement.
Often shortened to docket.
docket entry. A note made in the court's formal record
of proceedings and filings. See DOCKET (1).
docket fee. See FEE (1).
docket number. (1866) A number that the court clerk
assigns to a case on the court's docket.
docket order. See ORDER (2).
docket sheet. See DOCKET (1).
dockmaster. English law. An officer who directs the
mooring and removal of ships to avoid the obstruc
tion ofcommerce.
dock receipt. Maritime law. An interim document issued
by a maritime carrier to evidence the delivery ofgoods
at the dock. -Generally, a dock receipt entitles the
designated person to receive a bill oflading, waybill,
or other transport document. -Also termed dock
warrant. See DOCUMENT OF TITLE. [Cases: Shipping
C=> 106(6).]
dock sale. See SALE.
dock warrant. See DOCK RECEIPT.
doctor. 1. Rist. In Roman Catholic canon law, an
honorary title for a scholar. 2. A title ofa person who
has acquired an advanced degree in academics, or has
achieved an honorable distinction. 3. A physician. -
Abbr. Dr. [Cases; HealthC~llO.l
Doctor of Juridical Science. A graduate law degree,
beyond the J.D. and the LL.M. Abbr. S.).D.; J.S.D.
Also termed Doctor ofJudicial Science; Doctor ofthe
Science ofJurisprudence; Doctor ofthe Science ofLaw.
Doctor ofJurisprudence. See JURIS DOCTOR.
Doctor ofLaw. See JURIS DOCTOR.
Doctor of Laws. An honorary degree bestowed on one
who has achieved great distinction. -Abbr. LL.D. Cf.
JURIS DOCTOR; MASTER OF LAWS.
553 doctrine of equivalents
Doctor ofthe Science ofJurisprudence. See DOCTOR OF
JURIDICAL SCIENCE.
Doctor of the Science of Law. See DOCTOR OF JURIDI
CAL SCIENCE.
doctor-patient privilege. See PRIVILEGE (3).
doctor-patient relationship. See RELATIONSHIP.
Doctors' Commons. Hist. Informal. The College ofAdvo
cates and Doctors of Law, which trained specialists in
admiralty and ecclesiastical law and housed admiralty
and ecclesiastical courts from the 16th century to the
19th. The College was dissolved in the 1860s after its
functions were absorbed by the High Court. -Some
times written Doctors' Common.
doctrine. (14c) L A principle, esp. a legal principle, that
is Widely adhered to. 2. Archaic. HOLDING (1).
doctrine of acquired rights. See ACQUIRED-RIGHTS
DOCTRINE.
doctrine ofadverse domination. See ADVERSE-DOMI
NATION DOCTRINE.
doctrine of approximation. (1845) A doctrine that
authorizes a court to vary the details ofa trust's admin
istration to preserve the trust and to carry out the
donor's intentions. Also termed equitable doctrine
ofapproximation. Cf. CY PRES.
doctrine ofcapture. See RULE OF CAPTURE.
doctrine ofclaim differentiation. See CLAIM DIFFER
ENTIATION.
doctrine ofcoercion. See COERCION (3).
doctrine ofcompleteness. See RULE OF OPTIONAL COM
pLETENEss.
doctrine of constructive service. 1. See constructive
service under SERVICE (2). 2. Employment law. The prin
ciple that a person who contracts to work for a definite
period and is wrongfully discharged after beginning
work may wait until the contract period expires and
then sue on the contract for the wages that the person
would have earned between the time of the discharge
and the expiration ofthe contract. -In a jurisdiction
that has adopted this principle, it is an exception to the
mitigation-of-damages doctrine. Often shortened
to constructive service. Cf. MITIGATION-OF-DAMAGES
DOCTRINE. [Cases: Labor and Employment (';:::> 171,
239.]
doctrine ofcontagion. See CONTAGION.
doctrine ofcontinuity. See CONTINUITY (2).
doctrine ofcontra non valentem (kon-tra non va-len
tam). (1938) The rule that a limitations or prescriptive
period does not begin to run against a plaintiff who is
unable to act, usu. because ofthe defendant's culpable
act, such as concealing material information that would
give rise to the plaintiffs claim. Often shortened
to contra non valentem. [Cases: Limitation ofActions
(,;:::>43, 95.]
doctrine ofcontra proferentem. See CONTRA PROFER
ENTEM. doctrine of curative admissibility. A rule allowing a
party to introduce otherwise inadmissible evidence to
remove the prejudice caused by the improper admis
sion ofevidence that was offered by the opposing party.
-The doctrine applies when a motion to strike cannot
cure the prejudice created by the adverse party.
Also termed curative-admissibility doctrine. [Cases:
Criminal Law C::::O396; Evidence (';:::> 155.]
doctrine ofdiscovered peril. See LAST-CLEAR-CHANCE
DOCTRINE.
doctrine ofelection (l8c). A doctrine holding that when
a person has contracted with an agent without knowing
of the agency and later learns the principal's identity,
the person may enforce the contract against either the
agent or the principal, but not both. See ELECTION (1);
ELECTION OF REMEDIES.
doctrine ofentireties (en-tI-<lr-teez). In customs law, the
rule that when an entry consists ofparts that assemble
to form an article different from any of the parts, the
proper classification will be ofthe whole article, rather
than the individual components . Por example, an
unassembled product consisting of an empty decora
tive glass, powdered wax in a cellophane bag, wicks,
and fragrance, boxed together and sold as one product
may be properly classified as a candle.
doctrine of equitable indemnity. See equitable indem
nity under INDEMNITY.
doctrine of equivalents. (1856) Patents. A judicially
created theory for finding patent infringement when
the accused process or product falls outside the literal
scope of the patent claims . The doctrine evolved
to prevent parties from evading liability for patent
infringement by making trivial changes to avoid the
literal language of the patent claims. Graver Tank
& Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 70
S.Ct. 854 (1950). In determining whether infringe
ment exists under the doctrine, the court must first
determine whether "the accused product or process
contain[s} an element identical or equivalent to each
claimed element ofthe patented invention." Warner
Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17,
39-40,117 S.Ct. 1040, 1054 (1997).lfit does, it infringes
on the patent if the differing element performs sub
stantially the same function in substantially the same
way to get the same result as the patented product or
process. Prosecution-history estoppel is not an absolute
bar to a patentee who seeks to invoke the doctrine of
equivalents to prove infringement on a claim that was
voluntarily amended. Festo v. Shoketsu Kinzoku Kogyo
Kabushiki Co., 535 U.S. 722, 122 S.Ct. 1831 (2002).
Also termed eqUivalents doctrine; doctrine ofequiva
lence; doctrine ofequivalency; doctrine ofsubstantial
eqUivalents; nonliteral infringement. Cf. literal infringe
ment under INFRINGEMENT. [Cases: Patents (';:::>237.}
reverse doctrine ofequivalents. The doctrine prevent
ing infringement liability when the invention is sub
stantially described by the claims ofanother's patent
but performs the same or a similar function in a sub
stantially different way.
|
the claims ofanother's patent
but performs the same or a similar function in a sub
stantially different way.
554 doctrine of estates
doctrine of estates. Hist. The rule that a person cannot
own land, but can merely own an estate in it, autho
rizing the person to hold it for some period of time.
This doctrine answers the question of the duration of
an estate. Cf. DOCTRINE OF TENURES.
doctrine offinality. See FINALITY DOCTRINE.
doctrine of general average. Maritime law. A rule
allOWing a carrier to require cargo owners and the ship
owner to contribute pro rata to the cost of protecting
the ship and its cargo. [Cases: Shipping 186.J
doctrine of identification. Hist. English law. lhe rule
that if,! person traveling in a conveyance is injured in
an accident that occurs because ofsomeone else's neg
ligence, and the driver of the conveyance is contribu
torily negligent, the passenger cannot claim damages
against the tortfeasor since the passenger is "identified"
with the contributorily negligent driver . The leading
authority for this doctrine was 7horogood v. Bryan, 8
CB. 115 (1849), but the Court of Appeal repudiated
the doctrine as unsound in The Bernina [I887], 13 App.
Cas. 1 (1888).
doctrine ofillusory coverage. A rule requiring an insur
ance policy to be interpreted so that it is not merely
a delusion to the insured . Courts avoid interpret
ing insurance policies in such a way that an insured's
coverage is never triggered and the insurer bears no
risk. [Cases: Insurance C=~2090.]
doctrine of incontrovertible physical facts. See PHYS
ICAL-FACTS RULE.
doctrine of ineffective revocation. See DEPENDENT
RELATIVE REVOCATION.
doctrine ofinherency. See INHERENCY DOCTRINE.
doctrine of intervening rights. See INTERVENING
RIGHTS.
doctrine of legal unities. See LEGAL-UNITIES
DOCTRINE.
doctrine of marital privacy. See MARITAL-PRIVACY
DOCTRINE.
doctrine of necessaries. (1870) 1. The rule holding a
parent or spouse liable to anyone who sells goods or
provides medical services to that person's child or
spouse if the goods or services are required for suste
nance, support, or healthcare. 2. Archaic. The common
law rule holding a husband or father liable to anyone
who sells goods to his wife or child if the goods are
required for sustenance or support. See NECESSARIES.
[Cases: Husband and Wife ~19.]
doctrine of notice. See NOTICE DOCTRINE.
doctrine of obligation. English law. The rule that if a
foreign court of competent jurisdiction has adjudicated
a certain sum to be due from one person to another,
the liability to pay that sum becomes a legal obliga
tion enforceable domestically by a debt action . Once
the plaintiff proves the judgment, the burden shifts
to the defendant to show why the obligation should
not be performed. The doctrine was established by Baron Parke in Russell v. Smyth, 9 M. & W. 810, 819
(1842). -Often shortened to obligation.
doctrine of optional completeness. See RUU OF
OPTIONAL COMPLETENESS.
doctrine ofparens patriae. See PARENS PATRIAE (2).
doctrine ofpractical location. See AGREED-BOUNDARY
DOCTRINE.
doctrine ofprecedent. (18c) 1. The rule that precedents
not only have persuasive authority but also must be
followed when similar circumstances arise . This
rule developed in the 19th century and prevails today.
See STARE DECISIS. [Cases: Courts (~88.1 2. A rule
that precedents are reported, may be cited, and will
probably be followed by courts. This is the rule that
prevailed in England until the 19th century.
doctrine ofpreclusion of inconsistent positions. See
judicial estoppel under ESTOPPEL.
doctrine ofrelation back. See RELATION BACK.
doctrine of res judicata. See RES Jt:DICATA.
doctrine of revestment. A rule by which a court regains
jurisdiction after the entry offinal judgment when the
former opposing parties have actively participated in
proceedings inconsistent with the court's judgment.
[Cases: Courts ~30.]
doctrine of scrivener's error. (1992) A rule permitting
a typographical error in a document to be reformed
by parol evidence, if the evidence is precise, clear, and
convincing. See clerical error under ERROR (2). [Cases:
Reformation ofInstruments Cr~17(2).]
doctrine of separate spheres. See SEPARATE-SPHERES
DOCTRINE.
doctrine of specialty. Int'llaw. The principle, included
as a provision in most extradition treaties, under which
a person who is extradited to a country to stand trial
for certain criminal offenses may be tried only for
those offenses and not for any other pre-extradition
offenses. Also termed specialty doctrine. See EXTRA ~
DITION. [Cases: Extradition and Detainers ~19.]
doctrine ofspousal unity. See SPOUSAL-UNITY DOCTRINE
(1).
doctrine of subsequent negligence. See LAST-CLEAR
CHANCE DOCTRINE.
doctrine of substantial equivalents. See DOCTRINE OF
EQt:IVALENTS.
doctrine of substituted judgment. See SUBSTITUTED
JUDGMENT DOCTRINE.
doctrine ofsuperior equities. Insurance. A rule by which
an insurer is unable to recover from anyone whose
equities are equal or superior to the insurer's; esp., a
rule that a right ofsubrogation may be invoked against
another party only if that party's guilty conduct renders
the party's equity inferior to that ofthe insured. Also
termed risk-stops-here rule. [Cases: Insurance
3513(3),3517; Subrogation ~1.]
doctrine of tenures. Hist. The rule that all land is held
of the Crown, either directly or indirectly, on some
type of tenure. This doctrine answers the question
of the manner in which an estate is held. -Also termed
doctrine oftenure. Cf. DOCTRINE OF ESTATES.
doctrine of the conclusiveness of the judgment. See
judicial estoppel under ESTOPPEL.
doctrine of the last antecedent. See RULE OF THE LAST
ANTECEDENT.
doctrine ofthe last preceding antecedent. RULE OF THE
LAST ANTECEDENT.
doctrine of ultimate negligence. See LAST-CLEAR
CHANCE DOCTRINE.
doctrine of unconstitutional conditions. See UNCON
STITUTIONAL-CONDITIONS DOCTRINE.
doctrine of vested rights. See VESTED-RIGHTS
DOCTRINE.
doctrine of worthier title. See WORTHIER-TITLE
DOCTRINE.
document, n. (15c) 1. Something tangible on which
words, symbols, or marks are recorded. See Fed. R.
Civ. P. 34(a). 2. (pl.) The deeds, agreements, title papers,
letters, receipts, and other written instruments used to
prove a fact.
ancient document. (1846) Evidence. A document that
is presumed to be authentic because its physical con
dition strongly suggests authenticity, it has existed
for 20 or more years, and it has been maintained in
proper custody (as by coming from a place where it is
reasonably expected to be found). Fed. R. Evid. 901(b)
(8). -Also termed ancient writing. [Cases: Evidence
(::::::>372.)
document ofauthority. See governing document.
foreign document. (1816) A document that originated
in, or was prepared or executed in, a foreign state or
country.
governing document. Parliamentary law. A document
that defines or organizes an organization, or grants or
establishes its authority and governance . An organi
zation's governing documents may include a charter,
articles of incorporation or association, a constitu
tion, bylaws, and rules. A charter or articles ofincor
poration or association, if they have been granted
or adopted, are an organization's most authorita
tive governing document, followed by the constitu
tion, bylaws, and rules, in that order. -Also termed
document ofauthority. See CHARTER (4), (5); ARTICLES
OF INCORPORATION; ARTICLES OF ASSOCIATION (2);
CONSTITUTION (4); BYLAW (1); SUBORDINATION (2).
hot document. (1995) A document that directly
supports a litigant's allegation.
public document. (17c) A document ofpublic interest
issued or published by a political body or otherwise
connected with public business. Cf. public record
under RECORD. [Cases: Evidence (::::::>325-337.) 3. Evidence. Under the best-evidence rule, a physical
embodiment of information or ideas, such as a letter,
contract, receipt, account book, blueprint, or X-ray
plate; esp., the original of such an embodiment. See
Fed. R. Evid. 1001 et seq. [Cases: Criminal Law (::::::>
400; Evidence (::::::>157-187.)
document, vb. (18c) 1. To support with records, instru
ments, or other evidentiary authorities <document
the chain ofcustody>. 2. To record; to create a written
record of <document a file>.
documentary credit. 1. Credit extended on a document
of title or any other legal document. 2. A financing
arrangement in which a financial institution authorizes
or makes a payment to a third party (usu. an exporter)
at a customer's request. This financing method
facilitates international transactions by providing the
importer with necessary credit and the exporter with
an expedited cash payment.
documentary draft. See DRAFT.
documentary evidence. See EVIDENCE.
documentary instruction. A written agreement between
an importer and exporter covering the relegation of
various documents relating to the shipment and dis
position of goods.
documentary letter ofcredit. See LETTER OF CREDIT.
documentary-originals rule. See BEST-EVIDENCE
RULE.
documentary sale. See SALE.
documentary stamp. A stamp required to be affixed to a
deed or other instrument before it is recorded.
documentary-stamp transfer tax. See stamp tax under
TAX.
document of title. (18c) A written description, iden
tification, or declaration of goods authorizing the
holder (usu. a bailee) to receive, hold, and dispose of
the document and the goods it covers . Documents
oftitle, such as bills oflading, warehouse receipts, and
delivery orders, are generally governed by Article 7 of
the Ucc. See BAILMENT (1)-(3). [Cases: Carriers (::::::>
51; Warehousemen (::::::> 11.)
negotiable document of title. A document of title
that actually stands for the goods it covers, so that
any transfer ofthe goods requires a surrender ofthe
document. UCC 7-104(1). [Cases: Bills and Notes
(::::::> 151; Warehousemen (::::::> 15.)
nonnegotiable document oftitle. A document oftitle
that merely serves as evidence ofthe goods it covers.
UCC 7-104(2). [Cases: Warehousemen (::::::> 15.)
document request. See REQUEST FOR PRODUCTION.
documentum (dok-Y<l-men-t<lm), n. [Latin) Roman law.
1. Proof. 2. A document . This term appeared in post-
classical imperial constitutions.
DOD. abbr. Department of Defense. See DEFENSE
DEPARTMENT.
DoDDS 556
DoDDS. abbr. DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS.
do, dieD, addieo (doh, dI-koh, d-dI-koh ordik-oh, d-dik
oh). [Latin] I give, I say, I adjudge. -These formal words
were spoken by the Roman praetor in the exercise of
his jurisdiction on certain days, such as dies fasti. They
could not be officially spoken on dies nefasti. Do refers
to the granting of actions, exceptions, and the appoint
ment of judges; dico refers to the pronouncement of
judgments; and addico refers to the adjudication of
controverted property.
DOE. abbr. l. DEPARTMENT OF EDUCATION. 2. DEPART
MENT OF ENERGY.
Doe, Jane. See JANE DOE.
Doe, John. See JOHN DOE.
D'Oench Duhme doctrine (dench doom). The rule that
estops a borrower from asserting a claim or defense
against a federal successor to a failed financial insti
tution -if the claim or defense is based on a side or
secret agreement or representation -unless the agree
ments or representations have been (l) put into writing,
(2) executed by the financial institution and borrower
when the loan was issued, (3) approved by the financial
institution's board of directors or loan committee, and
(4) made a permanent part ofthe financial institution's
records. D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447,
62 S.Ct. 676 (1942) (now partially codified at 12 USCA
1823(e), and otherwise of questionable standing in
light of O'Melveny & Myers v. FDIC, 512 U.S. 79, 114
S.Ct. 2048 (1994. [Cases: Banks and Banking
505.]
do equity. (Of one who seeks an equitable remedy) to
treat or offer to treat the other party as fairly as is nec
essary, short of abandoning one's own legal rights, to
bring about a fair result. -The phrase derives from the
maxim, uOne who seeks equity |
own legal rights, to
bring about a fair result. -The phrase derives from the
maxim, uOne who seeks equity must do equity." See
UNCLEAN-HANDS DOCTRINE. [Cases: Equity (::::)66.]
d'office (daw-fees). [Law French] Of office; officially. _
This is similar to the Latin phrase ex officio.
dog. Slang. 1. Something undesirable, esp. a lawsuit
<the cases assigned to the new lawyer were all dogs>.
2. Securities. A stock or other investment that suffers
public disdain and repeated price declines or poor per
formance.
dog-draw. Hist. 'The apprehension ofsomeone chaSing a
deer in a forest with a dog.
"Dog'draw is an apparent deprehension of an offender
against venison in the forest. There are four kinds of them
observed by Manwood, part. 2, cap. 18, num. 9, of his
Forest Laws, that is, dogdraw, stable-stand, backbear, and
bloody-hand. Dogdraw is, when one is found drawing after
a deer by the scent of a hound led in his hand." Termes de
fa Ley 181 (1 st Am. ed. 1812).
dogma (dawg-mCl ordahg-), n. A philosophy, opinion, or
tenet that is strongly held, is believed to be authorita
tive, and is followed steadfastly, usu. to the exclusion of
other approaches to the same subject matter; a formally stated and proclaimed doctrine of faith. PL dogmas,
dogmata (-md-tCl).
DOHSA (doh-shd). abbr. DEATH ON THE HIGH SEAS
ACT.
doing business. Ihe act of engaging in business activi
ties; specif., the carrying out of a series of similar
acts for the purpose of realizing a pecuniary benefit,
or otherwise accomplishing a goal, or doing a single
act with the intention of starting a series ofsuch acts;
esp., a nonresident's participation in sufficient business
activities in a foreign state to allow the state's courts
to exercise personal jurisdiction over the nonresident.
See BUSINESS (1); D/B/AI; DOING-BUSINESS STATUTE;
LONG-ARM STATUTE; MINIMUM CONTACTS. [Cases: Cor
porations <::=642, 665(1); Courts C=12(2.15).]
doing-business statute. A state law defining the acts
that constitute undertaking business there, usu. for
the purpose of establishing the circumstances under
which the state's courts may exercise personal juris
diction over a nonresident. See MINIMUM CONTACTS;
LONG-ARM STATUTE. [Cases: Courts C=12(2.15).]
DOT. abbr. DEPARTMENT OF JUSTICE.
DOL. abbr. DEPARTMENT OF LABOR.
dol (dohl or dol), n. [French "deceit; fraud"] Civil law.
Fraud committed in inducing another to enter into a
contract. See fraud in the inducement under FRAUD.
Cf. FRAUDE.
dole, n. 1. A share of something that is jointly owned
but divisible. 2. Slang. Welfare benefits received from
a governmental agency. 3. Scots law. Criminal intent;
the equivalent of mens rea.
do, lego (doh, lee-goh). [Latin] Hist. I give and bequeath.
-In Roman law, this was the phrase used to make a
bequest.
dole-land. Hist. Jointly owned land in which each
owner or user has an assigned portion with distinct
landmarks. -The share may be allotted annually on
a rotating basis or permanently. Also termed dole
meadow; dole-moor.
dole-meadow. See DOLE-LAND.
dole-moor. See DOLE-LAND.
Dole test. A four-part test used to determine the consti
tutionality of a condition attached by Congress under
its Spending Clause power to the receipt of federal
money. The spending must be in pursuit of the
general welfare, and the condition must be unambigu
ous, related to some federal interest, and not barred by
any other provision ofthe Constitution. South Dakota
v. Dole, 483 U.S. 203, 107 S.Ct. 2793 (1987). [Cases:
United States ':::;::::>82(2).]
doli capax (doh-h kay-paks), adj. [Latin "capable of
wrong"] Roman law. Capable ofcommitting a crime or
tort; esp., old enough to determine right from wrong.
Also termed capax doli. Cf. DOLI INCAPAX.
"In criminal cases, an infant of the age of fourteen years
may be capitally punished for any capital offence: but under
the age of seven he cannot. The period between seven
557 domestic
and fourteen is subject to much incertainty: for the infant
shall, generally speaking, be judged prima facie innocent;
yet if he was doli capax, and could discern between good
and evil at the time of the offence committed, he may be
convicted and undergo judgment and execution of death,
though he hath not attained to years of puberty or discre
tion. 1 William Blackstone, Commentaries on the Laws of
England 452-53 (1765).
doli incapax (doh-h in-kay-paks), adj. [Latin "incapa
ble of wrong"] Roman law. Incapable of committing
a crime or tort. -Also termed incapax doli. Cf. DOLI
CAPAX.
dollar-cost averaging, n. The investment practice ofpur
chasing a fixed dollar amount of a type of security at
regular intervals.
dolo (doh-Ioh), n. [Spanish] Spanish law. Fraud or deceit;
bad or mischievous design,
dolo circumventus (doh-loh sar-kam-ven-tas). [Latin]
Hist. Overreached by fraud.
dolose (da-Iohs or doh-Iohs). [Latin] Hist. Fraudulent;
deceitful; malicious.
dolus (doh-las). [Latin "device; artifice"] Roman & civil
law. 1. Fraud or deceit; conduct intended to deceive
someone; bad faith, Although there may be dolus
without fraud, fraud alwavs includes dolus. Cf, CASUS
(1); CULPA (1). 2. Intention~l aggression; willful injury,
esp. to another's property. -Also termed dolus malus;
fraus.
"In the twelfth century the resuscitated Roman law intro
duced some new ideas. Men began to contrast, as Glanvill
does, civil with criminal causes, to speak of dolus and culpa
and casus, and to lay stress on the psychical element in
crime." 2 Frederick Pollock & FrederiC W. Maitland, History
of English Law Before the Time of Edward I 477 (2d ed.
lB99).
"Although the word malitia is not unknown to the Roman
lawyers, the usual and technical name for wrongful intent
is dolus, or more specifically dolus malus. Dolus and culpa
are two forms of mens rea. In a narrower sense, however,
dolus includes merely that particular variety of wrongful
intent which we term fraud ~that is to say, the intent
to deceive. From this limited sense it was extended to
cover all forms of wilful wrongdoing. The English term
fraud has never received an equally wide extension." John
Salmond, Jurisprudence 385 (Glanville L. Williams ed., 10th
ed. 1947).
dolus bonus (doh-IdS boh-nas). [Latin "good deceit"]
Shrewdness or justifiable deceit, as when a person lies
to an attacker to prevent an assault. Dolus bonus
does not produce any legal consequences.
dolus dans locum contractui (doh-las danz loh-kam
kan-trak-choo-I). [Latin] Fraud (or deceit) giving rise
to the contract; specif., a fraudulent misrepresenta
tion that, having been made by one of the parties to
the contract and relied on by the other, was actually
instrumental in inducing the latter to enter into the
contract.
dolus incidens (doh-l<)s in-si-denz). [Law Latin] Hist.
Fraud incidental; fraud that does not affect the essen
tial terms of an agreement. dolus malus (doh-las mal-as). [Latin "bad or evil
deceit"] Evil or fraudulent design or intent; an unjus
tifiable deceit.
DOMA. abbr. DEFENSE OF MARRIAGE ACT.
domain (doh-mayn), n. (I5c) 1. The territory over which
sovereignty is exercised <the 19th-century domains of
the British Empire>. 2. An estate in land <the family
domain is more than 6,000 acres>. 3. The complete and
absolute ownership ofland <his domain over this land
has now been settled>. See EMINENT DOMAIN; PUBLIC
DOMAIN.
domain name. 'Ihe words and characters that website
owners designate for their registered Internet addresses.
All domain names have at least two levels. The first
level domain name identifies the registrant's category
as, e.g., a commercial site (.com), a governmental insti
tution (.gov), an educational institution (.edu), a non
profit group (.org), or a discussion group (.net). The
second-level domain name is the unique identifier for
the user in a particular category <rhapsangel.com>
<rhapsangel.org>. A second-level domain name may be
protected under trademark law but first-level domain
names are not. In some circumstances, the entire
domain name may be validly registered as a trademark.
But trademark rights are not automatically created by
registering a domain name. See INTERNET-PROTOCOL
ADDRESS. [Cases: Telecommunications <:::=> 1330.]
domain-name infringement. See INFRINGEMENT.
domboc. See DOOMBOOK.
Dombrowski doctrine. (1965) A short-lived rule that
entitled a person to seek a federal-court injunction to
prevent prosecution under a broad or vague state statute
that affects rights guaranteed by the First Amendment.
Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116 (1965).
The doctrine was greatly cut back six years after it was
announced, when the Supreme Court ruled that a spec
ulative First Amendment chilling effect does not Justify
federal-court intervention in state affairs. Younger v.
Harris, 401 U.S. 37, 91 S.Ct. 746 (1971). [Cases: Courts
<:::=>508.]
domebook. See DOOMBOOK.
Domesday Book (doomz-day). The census or survey,
ordered by William the Conqueror and substantially
completed in 1086, of England's landholdings, build
ings, people, and livestock. -Abbr. D.B. -Also
spelled Doomsday Book.
"Domesday Book had several variant names ~ Uber de
Wintonia, Rotulus Wintoniae, Scriptura Thesauri Regis. Libel'
RegiS, Libel' judiciarius, Censualis Angliae, Angliae Notitia
et Lustratio, Rotulus RegiS, Libel' de Thesauro, Exchequer
Domesday . .. , Domesday Book had as its main object a
fiscal one, and a limited fiscal one at that. Beyond that it
does not profess to go, and if we get any further informa
tion from it as to contemporary law and society, we get it
as an indirect consequence." Percy H. Winfield, The Chief
Sources ofEnglish Legal History 11 0-11 (1925).
domestic, adj. (15c) 1. Of or relating to one's own
country <domestic affairs>. 2. Of or relating to one's
own jurisdiction <in Alaska, a domestic corporation is
558 domestic abuse
an Alaskan one>. 3. Ofor relating to the family or the
household <a domestic dispute>.
domestic abuse. See domestic violence under VIOLENCE.
domestic animal. See ANIMAL.
domestic asset-protection trust. See asset-protection
trust under TRUST (3).
domesticated animal. See ANIMAL.
domestic authority. (1833) 1. The legal power to use
nondeadly force when reasonably necessary to protect
a person for whom one is responsible. 2. A defense
allOWing a person responsible for another (such as a
parent responsible for a child) to use nondeadly force
when reasonably necessary to protect the person being
cared for. [Cases: Assault and Battery(;=:> 14,68.]
domestic bill. See BILL (6).
domestic corporation. See CORPORATION.
domestic court. See COURT.
domestic creditor. See CREDITOR.
domestic dispute. (1890) A disturbance, usu. at a resi
dence and usu. within a family, involving violence and
often resulting in a call to a law-enforcement agency.
Also termed domestic disturbance;family disturbance.
See domestic violence under VIOLENCE. [Cases: Protec
tion of Endangered Persons (;=:>45.J
domestic disturbance. See DOMESTIC DISP'GTE.
domestic export. See EXPORT (1).
domestic fixture. See FIXTURE.
domestic guardian. See GUARDIAN.
Domestic International Sales Corporation. A U.S. cor
poration, esp. a subsidiary whose income is primar
ily attributable to exports . Income tax on part of a
DISC's income is usu. deferred, resulting in a lower
overall corporate tax for the parent than it would other
wise incur. IRC (26 USCA) 991-997. Abbr. DISC.
[Cases: Internal RevenueC=AlI8.]
domestic judgment. See JUDGMENT.
domestic partnership. l. A nonmarital relationship
between two persons of the same or opposite sex who
live together as a couple for a significant period of
time. 2. A relationship that an employer or govern
mental entity recognizes as equivalent to marriage for
the purpose of extending employee-partner benefits
other |
relationship that an employer or govern
mental entity recognizes as equivalent to marriage for
the purpose of extending employee-partner benefits
otherwise reserved for the spouses of employees. Cf.
CIVIL UNION; same-sex marriage under MARRIAGE
(1). [Cases: Marriage 13,17.5,22,54.] domestic
partner, n.
domestic-partnership law. A legislative enactment,
often a municipal ordinance, that grants unmarried
adults living in economically or emotionally based rela
tionships, regardless of their sexual preference, some
of the rights of a civil marriage without attempting to
change the traditional definition of marriage. [Cases: ending when the partners stop sharing a primary resi
dence. See DOMESTIC PARTNERSHIP.
domestic-partnership property. See PROPERTY.
Domestic Policy Council. See OFFICE OF POLICY DEVEL
OPMENT.
domestic relations. See FAMILY LAW (1).
domestic-relations court. See family court under
COURT.
domestic-relations exception. Ihe exclusion of suits
regarding the granting ofdivorce, alimony, and child
custody from federal diverSity jurisdiction . The
domestic-relations exemption to federal diverSity juris
diction originated as dictum in Barber v. Barber, 62 U.S.
(21 How.) 582 (1858). Federal courts do not have juris
diction to grant divorces, award alimony, or determine
child custody. In general, matters ofdomestic relations
are left to the states. But the federal courts may hear
other diversity matters involving family members,
such as tort claims or suits seeking to enforce alimony
orders. Ankenbrandt v. Richards, 504 U.S. 689, 112 S.Ct.
2206 (1992). [Cases: Federal Courts
domestic-relations law. See FAMILY LAW (1).
domestic servant. A household servant. Often short
ened to domestic.
domestic terrorism. See TERRORISM.
domestic tort. See marital tort under TORT,
domesticus (da-mes-ti-kas), n. [Latin] Hist. Steward;
judge's assistant; assessor.
domestic violence. See VIOLENCE.
domicellus (dom-a-sel-as), n. [Law Latin] Hist. 1. A king's
natural son in France. 2. A young lord.
"Domicellus, Is an old obsolete ... Word, anciently given
as an Appellation or Addition to the King's natural Sons
in France, and sometimes to the eldest Sons of Noblemen
there; from whence we borrowed these Additions: As
several natural Children of John of Gaunt, Duke of Lan
caster, are stiled Domicelli by the Charter of Legitima
tion.... But according to Thorn, the Domicelli were only
the better Sort of Servants in Monasteries." Giles Jacob, A
New Law-Dictionary (8th ed. 1762).
domicile (dom-a-sIl), n. (15c) 1. The place at which a
person has been phYSically present and that the person
regards as home; a person's true, fixed, principal, and
permanent home, to which that person intends to
return and remain even though currently reSiding
elsewhere. A person has a settled connection with
his or her domicile for legal purposes, either because
that place is home or because the law has so deSignated
that place. Also termed permanent abode; habitancy.
[Cases: Domicile Federal Courts C-::;282.]
"By domicile we mean home, the permanent home; and if
you do not understand your permanent home, I am afraid
that no illustration drawn from foreign writers or foreign
languages will very much help you to it." Whicker v. Hume
(1858) 7 H.L.e. 124, 160 (per Lord Cranworth).
"It is difficult to give a definition of domicil that will cover
at once domicil by operation of law and domicil by choice. domestic-partnership period. The period beginning The idea of domicil certainly includes the idea of place and
when domestic partners begin living together and the idea of settled connection with the place. Domicil of Marriage
559
choice is so closely connected with the idea of home that
it seems desirable to include that idea in any definition,
and yet the idea is not applicable to many kinds of domicil
by operation of law. It has therefore seemed best to state
this element in the alternative. If a home is in the place,
that is sufficient. If there is no home, or if the party is not
sui juris, then the place is assigned by law without his will."
1 Joseph H. Beale, A Treatise on the Conflict of Laws 9.1,
at 89-90 (1935).
"A person's domicile is the place with which that person
is most closely associated his or her 'home' with all the
connotations of that word. A person can be domiciled in
a nation, a state of the United States, a city, or a house
within a city. He or she can have a domicile within a broader
geographical designation without having a domicile in a
narrower geographical designation. For example, a person
may be domiciled in a state without being domiciled within
any particular city within the state. For interstate choiceof
law purposes, it is the state in which a person is domiciled
that is significant." Russell J. Weintraub, Commentary on
the Conflict of Laws 2.2, at 14 (4th ed. 2001).
2. The residence of a person or corporation for legal
purposes. -Also termed (in sense 2) legal residence;
domicile by operation oflaw. Cf. RESIDENCE; PLACE OF
BUSINESS. Also spelled (in BrE) domicil.
"Tax statutes frequently speak in terms of residence,
intending it to be the equivalent of domicile. For example,
the New York estate tax speaks in terms of residence and
non-residence. Similarly ... , the United States imposes an
estate tax on any resident or citizen of the U.S. Although
both statutes use the term 'reSidence,' its usage has been
construed to mean 'domicile.'" Robert C. Lawrence III,
International Tax and Estate Planning 1.03(a)(4), at 8-9
(1989).
after-acquired domicile. (l858) A domicile established
after the facts relevant to an issue arose . An after
acquired domicile cannot be used to establish juris
diction or choice oflaw.
commercial domicile. (1839) 1. A domicile acquired by
a nonresident corporation conducting enough activi
ties to permit taxation of the corporation's property
or activities located outside the bounds ofthe taxing
state. 2. A domicile acquired by a person or company
freely residing or carrying on business in enemy ter
ritory or enemy-occupied territory. -Also termed
quasi-domicile.
corporate domicile. (1890) The place considered by law
as the center of corporate affairs, where the corpora
tion's functions are discharged; the legal home of a
corporation, usu. its state of incorporation or the state
in which it maintains its principal place of business .
For purposes ofdetermining whether diversity juris
diction exists in federal court, a corporation is consid
ered a citizen of both its state of incorporation and the
state ofits principal place ofbusiness. See DIVERSITY
OF CITIZENSHIP. [Cases: Corporations C=>52, 503(1);
Federal Courts C=>296; Taxation C=>2562, 3486.]
domicile ofbirth. See domicile oforigin.
domicile ofchoice. (1878) 1. A domicile established by
physical presence within a state or territory, coupled
with the intention to make it home. [Cases: Domicile
2. The domicile that a person chooses after
reaching majority or being emancipated. domiciliary administration
domicile oforigin. (1831) The domicile of a person at
birth, derived from the custodial parent or imposed
by law. -Also termed natural domicile; domicile of
birth; original domicile. See necessary domicile. [Cases:
Domicile (;=3.)
"Domicil is sometimes divided into domicil of birth, that
by operation of law, and that of choice. Domicil of origin
in modern times is domicil in the place where his parents
at his birth were domiciled." Theodore D. Woolsey, Intro
duction to the Study of International Law 71, at 105 n.2
(5th ed. 1878).
"Domicile of origin is the domicile the law assigns to each
person at birth, usually the domicile of the father in the
case of a legitimate child and of the mother in the case of
an illegitimate child. Domicile of origin has particular sig
nificance in English law. If one abandons one's domiCile of
choice without attaining a new one, the domicile of origin
'revives' until a new domicile of choice is attained_ In
contrast, U.s. jurisdictions generally will not find a domicile
abandoned until a new one has been adopted." Robert C.
lawrence III, International Tax and Estate Planning 1.03(a)
(1), at 4 (1989).
domicile ofsuccession. (1874) The domicile that deter
mines the succession ofa person's estate.
domicile oftrustee. lhe domicile where a trustee is
appointed. [Cases: Trusts
elected domicile. A contractually agreed domicile
between parties for purposes ofthe contract.
foreign domicile. A domicile established by a citizen
or subject of one sovereignty within the territory of
another.
matrimonial domicile. A domicile that a husband and
Wife, as a married couple, have established as their
home. - Also termed marital domicile; matrimonial
home. [Cases: Divorce (;=62; Husband and Wife
3(1).]
municipal domicile. A person's residence in a county
or municipality, as distinguished from the person's
state or national domicile.
national domicile. A domicile considered in terms of
a particular nation rather than a locality or subdivi
sion ofa nation.
natural domicile. See domicile oforigin.
necessary domicile, A domicile lcgallyfixed and inde
pendent of choice, as in the domicile oforigin. See
domicile oforigin.
original domicile, See domicile oforigin.
quasi-domicile. See commercial domicile.
quasi-national domicile. A person's state of residence,
as distinguished from the person's national or local
domicile.
domiciliary (dom-;}-sil-ee-er-ee), adj. (I8c) Ofor relating
to domicile <domiciliary jurisdiction>.
domiciliary (dom-;}-sil-ee-er-ee), n. (1845) A person
who resides in a particular place with the intention of
making it a principal place of abode; one who is domi
ciled in a particular jurisdiction. Cf. RESIDENT; CITIZEN
(1).
domiciliary administration. See ADMINISTRATION.
560 domiciliary administrator
domiciliary administrator. See ADMINISTRATOR (2).
domiciliary letters testamentary. See LETTERS TESTA
MECIITARY.
domiciliary parent. See PARENT.
domiciliate (dom-a-sil-ee-ayt), vb. To establish a
domicile; to fix a place ofresidence.
domiciliation (dom-i-sil-ee-ay-sh.m), n. The act ofestab
lishing a domicile.
domicilium (dom-;l-sil-ee-;lm), n. [Law Latin] Roman
law. DOMICILE.
domiger~um (dom-;l-jeer-ee-am), n. [Law Latin] Hist. 1.
Power over someone. 2. Danger.
domina (dom-d-nd), n. [Law Latin]!. A lady. 2. A peeress.
Cf. DAME (1), (2).
dominant estate. See ESTATE (4).
dominant-jurisdiction principle. (1995) The rule that
the court in which a case is first filed maintains the suit,
to the exclusion ofall other courts that would also have
jurisdiction. [Cases: Courts <~)475, 493, 514; Federal
Courts 1145.]
dominant property. See dominant estate under ESTATE
(4).
dominant tenant. See TENANT.
dominant tenement. See dominant estate under ESTATE
(4).
dominate, vb. (17c) L To master (someone or something);
to control (someone or something). 2. Predominate.
dominating patent. See fencing patent under PATENT
(3).
dominatio (dom-d-nay-shee-oh), n. [Latin] Hist.
Lordship; rule.
domination. Patents. The effect that an earlier patent
(usu. a basic one) has on a later patent (esp. one for
improvements on the patented device) because the
earlier patent's claims are so broad or generic that the
later patent's invention will always read on the earlier
patent's claims, resulting in infringement. Because
the patent system is based on exclusion of others from
an invention's subject matter, the earlier, basic patent's
claims "dominate" the later-invented improvement. If
the improvement is patented and worked, it infringes
the basic patent. But the basic patent's owner cannot
practice the improvement without infringing on the
improvement's patent. This stand-off effect encourages
improvement and basic-patentees to seek licenses or
cross-licenses with each other. See BLOCKING PATENT.
dominical (d<l-min-<l-k<lI), adj. Ofor relating to a Sunday;
ofor relating to the Lord's day.
Dominican divorce. See Mexican divorce under
DIVORCE.
dominidde (d;l-min-d-sId), n. [fr. Latin dominus
"master" + caedo "to kill"] Hist. 1. The crime ofkilling
one's master. 2. A person who kills his or her master. dominicum (d<l-min-<I-k;lm), n. [Latin "domain"]!. Hist.
Domain; lordship. 2. Hist. Land ownership, esp. that
retained by a lord for his own possession, as distin
guished from the rights given to a |
Hist. Land ownership, esp. that
retained by a lord for his own possession, as distin
guished from the rights given to a tenant. 3. Eccles. law.
A church or other religiOUS building.
dominicum antiquum (d;l-min-;l-bm an-tl-kw<lm), n.
[Law Latin] Hist. Ancient domain.
dominion. (l4c) 1. Control; possession <dominion over
the car>. 2. Sovereignty <dominion over the nation>.
3. FOREIGN DOMINION.
dominium (d;l-min-ee-<Im), n. [fro Latin dominus "lord"]
1. Roman & civil law. Absolute ownership including
the right to possession and use; a right ofcontrol over
property that the holder might retain or transfer at
pleasure. Dominium was subject to any servitudes,
planning restrictions, etc. This term gradually came
to also mean merely ownership of property, as distin
gUished from the right to possession or use.
"Dominium is the Roman term for the rights of an owner
against all the world: and the contrast of dominium and
obligatio is the nearest approach that can be made, in clas
sical Roman language, to the distinction marked by the
modern terms in rem and in personam." Frederick Pollock,
A First Book ofJurisprudence 83 (1896).
'The one word dominium has to assume so many shades
of meaning. The tenant qui tenet terram in dominio, is
dominus rei and has dominium rei; but then he has above
him one who is his dominus, and for the rights of this lord
over him and over his land there is no other name than
dominium." 2 Frederick Pollock & Frederic W. Maitland, The
History of English Law Before the Time of Edward 14 (2d
ed.1899).
dominium directum (dd-min-ee-<lm di-rek-t<lm), n.
[Law Latin]l. Civil law. Legal, not equitable, owner
ship. 2. Feudal law. The right of the superior ofland
over a tenant.
dominium directum et utile (d<l-min-ee-<lm di-rek
t<lm et yoo-t<l-lee), n. [Law Latin] Civil law. Complete
ownership ofproperty, including both title and exclu
sive use.
dominium eminens (d<l-min-ee-dm em-d-nenz), n.
[Law Latin] Civil law. Eminent domain. See EMINENT
DOMAIN.
dominium ex jure quiritium (d<l-min-ee-dm eks
joor-ee kWI-rish-ee-<lm). Roman law. Ownership
exercised by Roman citizens in the most complete
manner (pleno jure), the property being domestic (not
foreign) and having been acquired according to all the
forms oflaw. -Also termed dominium quiritarium;
dominium legitimum.
dominium legitimum (ld-jit-i-mdm). See dominium ex
jure quiritium.
dominium plenum (dd-min-ee-<lm plee-ndm), n. [Law
Latin] Civil law. Full ownership combining dominium
directum and dominium utile. -Also termed plenum
dominium.
dominium quiritarium (kwI-rJ-tair-ee-<lm). See
dominium ex jure quiritium.
dominium utile (d<J-min-ee-<Jm yoo-t<J-lee), n. [Law
Latin) Civil law. Equitable ownership; a beneficial
right to use property; the right of a tenant to use the
soil and its profits.
"The special characteristic of Feudal land was that owner
ship in it was split into two kinds, the dominium directum
of the superior (lord) and the dominium utile of the vassal.
The feudists correctly insisted that this was not a form of
joint ownership, not yet of ownership burdened with an
easement or a 'usufruct,' but that two kinds of ownership
were present, and that each of these persons, the lord
and the vassal, was properly called 'owner' or dominus.
The lord's dominium directum gave him a reversion in the
case of forfeiture of failure of issue and the enjoyment of
whatevef the naturalia and accidentalia were. The vassal's
dominium utile gave him the immediate enjoyment of the
land itself." Max Radin, Handbook ofAnglo-American Legal
History 148 (1936).
nudum dominium (dd-min-ee-,Hn n[y)oo-ddm). [Latin
"bare ownership"] Roman Law. Ownership divorced
from present possession or use.
plenum dominium. See dominium plenum.
2. Hist. Lordship; sovereignty.
'The Latin word for ownership, dominium, is particularly
confusing, since in medieval times it is also the word
for lordship." J,H. Baker, An Introduction to English Legal
History 255 (3d ed, 1990).
domino volente (dom-d-noh vd-len-tee). [Law Latin "the
owner being willing"] With the owner's consent.
dominus (dom-d-n<Js), n. [Latin "lord"]!. Roman law.
An owner of a thing or inheritance. 2. Roman law.
The title of the emperor in the later empire. 3. Hist. A
lord; a feudal superior, as in dominus rex ("the lord of
the king"), dominus capitalis ("a chieflord"), dominus
medius ("an intermediate lord"), and dominus ligius
("a liege lord"). 4. Hist. Eccles. law. Lord; sir, -This is a
title ofdistinction usu. given to a knight, a clergyman,
a lord of a manor, or another gentleman of quality. 5.
Civil law. Someone who possesses something by right.
PI. domini.
dominus directus (dom-<J-n<Js di-rek-t<Js). [Law Latin]
Hist. The immediate feudal superior.
dominus litis (dom-d-n<Js h-tis), n. [Latin) 1. Civil law.
The party who makes the decisions in a lawsuit, usu.
as distinguished from the attorney. 2. Maritime law.
A third person who represents an absent party in a
case. Also termed litis dominium.
dominus navis (dom-<l-n<ls nay-vis), n. [Latin] Civil law.
The absolute owner ofa shipping vessel.
dominus omnium bonorum (dom-<J-n<Js ahm-nee-<'lm
ba-nor-<Jm). [Law Latin] Hist. Proprietor ofall movable
goods. -The phrase formerly described a husband who
owned goods in common with his wife.
domitae naturae (dom-a-tee n<J-tyoor-ee). [Latin] Hist.
Of a tame nature; not wild. _ This term usu. refers to
long-domesticated animals, such as sheep or cattle,
in which a person has absolute property rights. But it
can also refer to naturally wild animals that have been
tamed. dommage survenu (daw-mazh suur-vd-noo). [French)
Damage sustained. -This is from article 17 of the
Warsaw Convention providing for compensatory
damages, rather than awards for loss of society or
punitive damages, for bodily injury that a passenger
suffers while on board an aircraft, or while boarding or
disembarking. [Cases: Carriers 319.]
domo reparanda (doh-moh rep-<J-ran-da), 11. [Latin "to
repair a house"] Hist. A writ available to a person to
force a neighbor who owns a decrepit house to repair it
because the person is worried that the neighbor's house
will fall and cause injury.
Dom. Proc. abbr. DOMUS PROCERUM.
domus (doh-m<Js), n. [Latin] A house; an abode.
domus conversorum (doh-mds kon-vdr-sor-<Jm), n.
[Law Latin "house of the converts"] Hist. An institu
tion, established by Henry III for converted Jews, that
continued until Edward III expelled Jews from the
kingdom and converted the institution to a chancery
record office.
domus Dei (doh-m<Js dee-I), n. [Law Latin] House of
God. -This term was applied to various hospitals and
religiOUS houses, such as the Hospital of St. Julian in
Southampton.
Domus Procerum (doh-mas pros-<J-r;Jm), n. [Latin
"house of nobles") The House of Lords. Abbr. Dam.
Proc.;D.P.
donatarius (doh-nd-tair-ee-<Js), 11. [Latin] A donee; a gift
recipient.
donate, vb. (ISc) To give (property or money) without
receiving consideration for the transfer. donation,
n. donative (doh-n<'l-tiv), adj.
donated stock. See STOCK.
donated surplus. See SURPLUS.
donatio (doh-nay-shee-oh). [Latin) A gift.
donatio causa mortis (doh-nay-shee-oh kaw-z<J mor
tis), n. See gift causa mortis under GIFT. PI. donationes
causa mortis.
donatio inofficiosa (doh-nay-shee-oh in-<J-fish-ee
oh-sJ). [Latin "inofficious gift") A gift so large that it
diminishes an heir's birthright portion of the donor's
property.
donatio inter virum et uxorem (doh-nay-shee-oh in-tdr
VI-r<lm et ak-sor-am). [Latin] Roman law. Donation
between husband and wife. -With a few exceptions
(such as suitable anniversary gifts), a donation between
spouses was invalid, but might be confirmed if the
donor died without revoking it.
donatio inter vivos (doh-nay-shee-oh in-t<Jr vI-vohs).
See il1ter vivos gift under GIFT.
donatio mortis causa, n. See gift causa mortis under
GIFT. PI. donationes mortis causa.
donation. 1. A gift, esp. to a charity. [Cases: Gifts
I.J
562 donation act
donation purely gratuitous. Louisiana law. An uncon
ditional inter vivos gift. Cf. onerous donation. [Cases:
Gifts
onerous donation. Civil law. An inter vivos gift
burdened with a condition imposed by the donor .
There is no gift unless the gift's value is more than
twice as much as the condition's value to the donor.
La. Civ. Code arts. 1524, 1526. Cf. donation purely
gratuitous. [Cases: Gifts
remunerative donation. Civil law. An inter vivos gift
made to compensate a person for services rendered .
It is nqt a gift unless the value ofthe property given is
more than twice as much as the value ofthe services.
La. Civ. Code arts. 1525, 1526. [Cases: Gifts
2. Eccles. law. A method of acquiring a benefice by
deed of gift alone, without presentation, institution,
or induction.
donation act. Hist. Property. A statute granting public
lands to settlers who satisfy certain conditions or to
veterans as a reward for military service. See donation
land, bounty land under LAND. [Cases: Public Lands
~42.]
donation claim. See CLAIM (3).
donation deed. See DEED.
donation land. See LAND.
donatio propter nuptias (doh-nay-shee-oh prahp-tdr
nap-shee-ds). [Latin "a gift on account of marriage"]
Roman law. A gift from a husband to his wife equiva
lent to her dowry and subject to similar conditions.
It was formerly called donatio ante nuptias ("gift
before marriage") because it was not allowed after the
marriage celebration. Justinian later changed the law
and the name. See DOS.
donatio velata (doh-nay-shee-oh vi-Jay-t.:l). [Latin] Hist.
A veiled gift; a concealed gift.
donative (don-d-tiv ordoh-nd-tiv), adj. 1. Of, relating to,
or characterized by a donation <a donative transter>. 2.
Subject to a donation <an advowson donative>.
donative advowson. See advowson donative under
ADVOWSON.
donative intent. See INTENT (1).
donative trust. See TRUST.
donator (doh-nay-t.:lf ordoh-nay-t.:lr also -tor), n. [Latin]
A donor; a person who makes a gift.
donatory (don-.:l-tor-ee or doh-nrl-tor-ee), n. Scots law. A
recipient ofa gift; specif., a donee ofthe Crown.
"A donatory is the donee or receiver of a gift or donation.
In practice, the term is applied exciusively to the person
to whom the Crown makes a gift. as of escheat, ultimus
haeres, or the like." William Bell, Bell's Dictionary and Digest
of the Law ofScotland 299 (George Watson ed., 1882).
donee (doh-nek). (Latin] Hist. As long as; while; until;
within a certain time . This term was used in old con
veyances. donee probetur in eontrarium (doh-nek proh-bee-t.:lr
in k.:ln-trair-ee-dm). [Latin] Until prooCis given to the
contrary.
donee (doh-nee). (16c) L One to whom a gift is made;
the recipient of a gift. 2. The person in whose favor a
power ofappointment is created or reserved. See DONEE
OF POWER.
donee beneficiary. See BENEFICIARY.
donee of power. (18c) A person who has been given a
power of appointment, i.e., the power to dispose of
someone else's property. Often shortened to donee.
See DONEE (2). Cf. DONOR (3).
donor. (15c) 1. One who gives something without receiv
ing consideration for the transfer. 2. SETTLOR (1). 3. The
person who creates or reserves a power ofappointment.
Cf. DONEE |
TLOR (1). 3. The
person who creates or reserves a power ofappointment.
Cf. DONEE OF POWER.
donor-advised fund. See donor-advised trust under
TRUST (3).
donor-advised trust. See TRUST (3).
do-not-resuscitate order. A document, executed by a
competent person, directing that if the person's heart
beat and breathing both cease while in a hospital,
nursing home, or similar facility, no attempts to restore
heartbeat or breathing should be made. -Abbr. DNR
order. -Also termed advance directive. [Cases: Health
~915.]
out-of-hospital do-not-resuscitate order. A do-not
resuscitate order, executed by a person who has been
diagnosed by a physician as having a terminal condi
tion, directing healthcare professionals to withhold
certain life-sustaining treatments when acting outside
a hospital or similar facility. -Abbr. OOH-DNR
order.
donum (doh-ndm), n. [Latin "a gift"] Roman law. A gift.
donum gratuitum. See gratuitous gift under GIFT.
doom, n. Hist. 1. A statute or law. 2. A judgment; esp., a
sentence in a criminal matter. 3. Justice; fairness. 4. A
trial; the process ofadjudicating.
"The word 'doom' is, perhaps, best translated as 'judgment.'
It survived in occasional use until the fourteenth century.
Wyclif's translation of the Bible, rendering the verse, 'For
with what judgment ye judge, ye shall be judged: as 'For
in what dome ye demen, ye schuln be demed.' The distinc
tion which we make to-day between the legislator, who
makes the law, and the judge, who interprets, declares
and applies it, was not known to our Anglo-Saxon ances
tors. The dooms were judgments in the sense that they
were declarations of the law of the people." W.J.V. Windeyer,
Lectures on Legal History 1 (2d ed. 1949).
doombook, n. [fro Saxon dombec] Hist. A code, compiled
under Alfred, containing maxims of common law,
judicial forms, and criminal penalties. -The code
existed until the reign of Edward IV, when it was
lost. -Also termed domebook (doom buuk); domboc;
liber judicialis ofAlfred.
Doomsday book. See DOMESDAY BOOK.
door-dosing statute. (1960) A state law closing or
denying access to local courts unless a plaintiff meets
563 double-breasted operation
specified conditions; esp., a statute requiring a foreign
corporation to "qualify" before doing business in the
state, including registering with the secretary of state,
paying a fee or tax, and appointing an agent to receive
service of process. [Cases: Corporations C:::>661(2), (6);
Courts C:::>6, 14.)
doorkeeper. Parliamentary law. An officer charged with
regulating access to the chamber or hall where a delib
erative assembly meets. Also termed guard.
doorstep loan. See LOAN.
doowop docket. Slang. See DWOP docket under DOCKET
(2).
dope. 1. A thick liquid used esp. for medicinal purposes.
2. Slang. A drug, esp. a narcotic. [Cases: Controlled
Substances C:::>9.]
dormant (dor-mimt), adj. (ISc) Inactive; suspended;
latent <a dormant judgment>. -dormancy, n.
dormant claim. (18c) A claim that is in abeyance.
Dormant Commerce Clause. See COMMERCE CLAUSE.
dormant corporation. See CORPORATION.
dormant execution. See EXECUTION.
dormant judgment. See JUDGMENT.
dormant legislative intent. See LEGISLATIVE INTENT.
dormant partner. See silent partner under PARTNER.
dormant title. See TITLE (2).
dorsum (dor-s<"lm). [Latin) Hist. The back . This term
usu. appeared as part of the phrase in dorso to indicate
that an instrument had been signed on the back. In
dorso recordi, for example, meant "on the back of the
record."
"In the first place then the payee, or person to whom or
whose order such bill of exchange or promissory note
is payable, may by endorsement, or writing his name in
dorso or on the back of it, assign over his whole property
to the bearer, or else to another person by name ...." 2
William Blackstone, Commentaries on the Laws ofEngland
468 (1766).
dos (dos), n. [Latin) 1. Roman law. Dowry.
"Dos was a gift made to the husband on the part of the
wife as her contribution towards the expenses of the joint
establishment. It was made by the wife or by another
person on her behalf, usually before marriage and condi
tionally on the marriage taking place; but it might also be
made or increased after marriage." RW. Lee, The Elements
of Roman Law 150 (4th ed. 1956).
dos adventitia (dos ad-ven-tish-ee-d). [Latin) Roman
law. A dowry brought by a bride to her husband when
furnished by someone other than the bride or her
father.
dos profectitia (doB proh-fek-tish-ee-d). [Latin] Roman
law. A dowry brought by a bride to her husband when
furnished by the bride's father or the bride herself.
dos receptitia (dos ree-sep-tish-ee-d). [Latin] Roman
law. A dowry (whether adventitia or proJectitia) that
is specially stipulated to be returnable to the giver
when the marriage ends.
2. Hist. Dower. DoS attack. See DENIAL-OF-SERVICE ATTACK.
dos rationabilis. See dower by the common law under
DOWER.
dossier (dos-ee-ay), n. [French] A file or brief; a bundle
of papers pertaining to a particular matter.
DOT. abbr. DEPARTMENT OF TRANSPORTATION.
dot (dot or dawt), n. [French fro Latin dos] Civil law.
Dowry; the property that a woman brings to the
marriage to help with marriage expenses . The income
is usu. controlled by the husband, while the principal
remains the wife's separate property.
dotage (doh-tij). 1. Senility; feebleness of a person's mind
in old age. 2. Foolish affection; excessive fondness.
dotal (doht-dl), adj. Of or relating to dowry. See
DOWRY.
dotalitium (doh-td-lish-ee-<"lm), n. [Law Latin) Hist.
Dower.
"[S]ome have ascribed the introduction of dower to the
Normans, as a branch of their local tenures; though we
cannot expect any feodal reason for its invention, since it
was not a part of the pure, primitive, simple law of feuds,
but was first of all introduced into that system (wherein
it was called ... dotalitium) by the emperor Frederick the
second; who was contemporary with our king Henry III. It
is possible therefore that it might be with us the relic of a
Danish custom: since, according to the historians of that
country, dower was introduced into Denmark by Swein,
the father of our Canute the great, out of gratitude to the
Danish ladies, who sold all their jewels to ransom him when
taken prisoner by the Vandals." 2 William Blackstone, Com
mentaries on the Laws ofEngland 129-30 (1766).
dotal property. See PROPERTY.
dotation (doh-tay-sh;m), n. 1. The act of giving a dowry.
2. An endowment, esp. offunds for a charitable institu
tion such as a hospital.
dote (doht), vb.!. 1b be silly due to old age. 2. To bestow
excessive fondness.
dote assignanda (doh-tee as-ig-nan-dd). See DE DOTE
ASSIGNANDA.
dote unde nil habet (doh-tee om-dee nil hay-bet). See DE
DOTE UNDE NIL HABET,
dotis administratio (doh-tis ad-min-d-stray-shee-oh).
See DE ADMENSURATIONE DOTIS.
dotissa (doh-tis-d), n. [Law Latin) A dowager.
double agent. See dual agent under AGENT (2).
double adultery. See ADULTERY.
double assessment. See ASSESSMENT.
double audit. See AUDIT.
double-bill, vb. To charge two different clients or cus
tomers the same charge; to charge two different cus
tomers for services rendered to each customer at the
same time.
double-breasted operation. An arrangement in which
a business owner operates both a union business and a
similar nonunion business, to compete for both types
ofbusiness contracts. -Also termed open-shop-c1osed
shop operation.
564 double-breasting
double-breasting. Labor law. The practice by a
common owner of dividing its employees between
two companies, one that is unionized and is party
to a collective-bargaining agreement, and one that is
nonunion. Also termed dual-shop operation. [Cases:
Labor and Employment G~1289.]
double commission. See COMMISSION (5).
double complaint. See DUPLEX QUERELA.
double creditor. See CREDITOR.
double criminality. Int'llaw. The punishability of a
crime in both the country where a suspect is being
held an~a country asking for the suspect to be handed
over to stand trial. Double criminality is a require
ment for extradition. [Cases: Extradition and Detain
ers C=:o5.]
double damages. See DAMAGES.
double-declining depredation method. See DEPRECIA
TION METHOD.
double-dipping, n. (1975) An act of seeking or accept
ing essentially the same benefit twice, either from the
same source or from two different sources, as in simul
taneously accepting retirement and unemployment
benefits. [Cases: Unemployment Compensation
575.] double-dipper, n.
double-entry bookkeeping. See BOOKKEEPING.
double forgery. See FORGERY.
double-fraction problem. Oil & gas. A common ambi
guity that arises when the owner of a fractional interest
conveys or reserves a fractional interest. -For example,
if the owner of an undivided half interest in minerals
conveys "an undivided half interest in the minerals," it
is unclear whether the intention is to convey the owner's
entire half interest or half of the owner's half interest.
[Cases: Mines and Minerals C=:o55(5).J
double gibbet. See GIBBET.
double hearsay. See HEARSAY.
double indemnity. See INDEMNITY.
double insurance. See INSURANCE.
double jeopardy. (1847) The fact of being prosecuted
or sentenced twice for substantially the same offense .
Double jeopardy is prohibited by the Fifth Amend
ment. In 2005, the United Kingdom abolished the
rule for certain serious offenses, such as murder
and hijacking. A court may quash an acquittal and
order a retrial if new and compelling evidence of the
defendant's guilt is discovered, and the evidence was
not available before the acquittal. Only one retrial
is allowed. Cf. FORMER JEOPARDY. [Cases: Double
Jeopardy 132.1.]
Double Jeopardy Clause. (1928) The Fifth Amendment
provision stating, "nor shall any person be subject for
the same offence to be twice put in jeopardy of life or
limb." The clause, which was ratified in 1791, does
not prevent postacquittal appeals by the government if
those appeals could not result in the defendant's being
subjected to a second trial for substantially the same offense before a second fact-trier. See United States
v. Wilson, 420 U.S. 332, 95 S.Ct. 1013 (1975). [Cases:
Double Jeopardy
double patenting. 1. Obtaining two patents covering
the same invention. _ An inventor is not allowed to
receive more than one patent on one invention. 37 CPR
1.56. Also termed same-invention double patent
ing. [Cases: Patents 2. The issuance or obtain
ing of a patent for an invention that differs from an
already patented invention only in some unpatentable
detail. -Also termed obviousness double patenting.
[Cases: Patents C=:o 120.]
judicially created double patenting. Attempting to
patent an invention that is an obvious variation of
another invention by the same inventor when the
first invention has already been patented or has a
pending application. -Double patenting is grounds
for rejecting a patent application, limiting the term of
a patent through a terminal disclaimer, or invalidat
ing a patent. In re Longi, 225 U.S.P.Q. 645 (Fed. Cir.
1985). A double-patenting challenge can be overcome
by filing a terminal disclaimer. 37 CFR 1.321. -Also
termed obviousness-type double patenting. [Cases:
Patents C=:o 120.]
obviousness-type double patenting. 1. DOUBLE PAT
ENTING (2). 2. See judiCially created double patent
ing.
same-invention double patenting. See statutory double
patenting.
statutory double patenting. Attempting to patent an
invention that is the same subject matter as another
invention by the same inventor, when the first inven
tion has already been patented or has a pending patent
application. -Any double patenting is grounds for
invalidating a patent claim or rejecting a claim in a
patent application. 35 USCA lO1. -Also termed
same-invention double pat |
a claim in a
patent application. 35 USCA lO1. -Also termed
same-invention double patenting.
double plea. See PLEA (3).
double pleading. See DUPLICITY (2).
double possession. See POSSESSION.
double proof. See PROOF.
double-proxy marriage. See MARRIAGE (3).
double quarrel. See DlIPLEX QUERELA.
double recovery. See RECOVERY.
double rent. See RENT (1).
double standard. (1900) A set of principles permitting
greater opportunity or greater lenience for one class of
people than for another, usu. based on a difference such
as gender or race. See DISCRIMINATION. [Cases: Civil
Rights C=:o 1007, 1033(3).]
double taxation. See TAXATION.
double-taxation treaty. Int'llaw. An international agree
ment deSigned to ameliorate the legal and financial con
sequences to taxpayers who have income that is taxable
by two nations. [Cases: Internal Revenue C=:o4085.]
565 dower
double use. See USE (1).
double value. Twice the value of something; specif., a
penalty payable by a tenant to a landlord of twice the
yearly value oflands held by the tenant, who refused
to leave when the landlord provided written notice
of intent to possess the property. The penalty was
provided under the Landlord and Tenant Act (1730).
St. 4 Geo. 2. ch. 28, s. 1. [Cases: Landlord and Tenant
C=)216.]
double voucher. In a common-recovery suit, a voucher
first by the fictitious tenant to the real tenant, and then
by the real tenant to the common vouchee. -The use of
a fictitious tenant was necessary because ifthe recovery
had been obtained directly against the real tenant, it
would be effective only to the limited extent that the
real tenant actually possessed an interest in the estate.
But if recovery was obtained against another party, it
would be effective against any latent interest that the
real tenant might assert in the estate. See COMMON
RECOVERY.
"The recovery, here described, is with a single voucher only;
but sometimes it is with double. . or farther voucher,
as the exigency of the case may require. And indeed it is
now usual always to have a recovery with double voucher
at the least; by first conveying an estate of freehold to any
indifferent person, against whom the praecipe is brought;
and then he vouches the tenant in tail, who vouches over
the common vouchee. For, if a recovery be had immedi
ately against tenant in tail, it bars only such estate in the
premises of which he is then actually seised; whereas if the
recovery be had against another person, and the tenant in
tail be vouched, it bars every latent right and interest which
he may have in the lands recovered." 2 William Blackstone,
Commentaries on the Laws of England 359 (1766).
double waste. See WASTE (1).
double will. See mutual will under WILL.
doubt, reasonable. See REASONABLE DOUBT.
doubtful title. See TITLE (2).
.doubt the vote. See DIVIDE THE ASSEMBLY.
doulocracy. See DULOCRACY.
doun (doon or dohn), n. [Law French] A gift.
do ut des (doh at deez). [Latin "I give that you may give"]
Roman law. An innominate contract in which a party
gives something in exchange for something that the
other party is to give. See innominate contract under
CONTRACT.
do utfacias (doh at fay-shee-as). [Latin "I give that you
may do"] Roman law. An innominate contract in which
a person gives something to another person who is to
do or perform certain work. See innominate contract
and bilateral contract under CONTRACT.
dovetail seniority. The combination of seniority lists
from merging companies into one list that allows
employees to keep their premerger seniority.
Dow (dow). See DOW JONES INDUSTRIAL AVERAGE.
dowable (dow-a-bal), adj. 1. Capable of being endowed
<the widow received the dowable estate>. [Cases: Dower
and Curtesy C=>-1O.] 2. Capable ofreceiving dower <the woman was dowable ofthe estate>. [Cases: Dower and
Curtesy C=>21.]
dowager (dow-a-jar). A widow holding property or
title -esp. a life estate in real property received
from her deceased husband.
dowager-queen. The widow of the king of England.
Ifshe is also the mother of the reigning monarch, she
may also by known as the queen mother. Also written
dowager queen. -Also termed queen dowager; queen
mother.
"A queen dowager is the widow of the king, and as such
enjoys most of the privileges belonging to her as queen
consort. But it is not high treason to conspire her death;
or to violate her chastity ... because the succession to the
crown is not thereby endangered. Yet still, ... no man can
marry a queen dowager without special licence from the
king, on pain of forfeiting his lands and goods .... A queen
dowager, when married again to a subject, doth not lose
her regal dignity, as peeresses dowager do their peerage
when they marry commoners." 1 William Blackstone, Com
mentaries on the Laws ofEngland 217 (1765).
dower (dow-ar). (l4c) At common law, a wife's right,
upon her husband's death, to a life estate in one-third
ofthe land that he owned in fee. _ With few exceptions,
the wife could not be deprived ofdower by any transfer
made by her husband during his lifetime. Although
most states have abolished dower, many states retain
ing the concept have expanded the wife's share to a life
estate in all the land that her husband owned in fee.
Also termed dowment; maritagium. Cf. CURTESY.
[Cases: Dower and CurtesyC=>1-1l8.]
consummate dower (k<"ln-s;>m-it or kahn-s<}-mit). A
widow's interest in her deceased husband '$ estate until
that interest is legally assigned to her. -Also termed
dower consummate. [Cases: Dower and Curtesy
54.]
dower ad ostium ecclesiae (ad ahs-tee-<}m e-klee-z[h]
ee-ee), n. [Law Latin dower at the church door"] Rist.
An endowment ofdower made bv a man to his wife at
the church door or porch, usu. a;part ofthe marriage
ceremony.
"DOWER AD osnUM ECClESIAE This appears to have been the
original English dower .... It was formerly the most usual
species of dower, and, though latterly fallen into disuse,
was not abolished until the statute of 3 & 4 Will. IV. c. 105,
s. 13 .... The wife might be endowed of personalty or
goods as well as of lands, and a trace of this ancient kind
of dower is still distinctly preserved in the marriage ritual
of the church of England, in the expression 'with all my
worldly goods I thee endow." 1 Alexander M. Burrill. A Law
Dictionary and Glossary 520 (2d ed. 1867).
dower by custom. Rist. Dower that is determined by
custom rather than the general law. Also termed
dower by particular custom.
"Dower by ... custom; as that the wife shall have half the
husband's lands, or in some places the whole, and in some
only a quarter." 2 William Blackstone, Commentaries on the
Laws of England 132 (1766).
dower by particular custom. See dower by custom.
dower by the common law. The regular dower, con
sisting of a life interest in one-third of the lands
that the husband held in fee. -Also termed dos
doweress 566
rationabilis (dos rash-[eeJ-d-nab-d-lds). [Cases; Dower
and Curtesy C=> 10, 1L]
dower consummate. See consummate dower.
dower ex assensu patris (eks d-sen-s[y]oo pa-tris),
n. [Law Latin "dower bv the father's assent"] Hist.
A type of dower ad osti~m ecclesiae made while the
husband's father is alive and consents to the endow
ment to his son's wife.
dower inchoate. See inchoate dower.
election dower. (1883) A widow's right to take a stat
utorv share of her deceased husband's estate if she
cho~s~s to reject her share under a will. See RIGHT
OF ELECTION.
equitable dower. See equitable jointure under JOINTURE
(1).
inchoate dower (in-kob-it). A wife's interest in her hus
band's estate while both are living. -Also termed
dower inchoate. [Cases: Dower and Curtesy
29-53.]
doweress. See DOWRESS.
Dow Jones Industrial Average. A stock-market-perfor
mance indicator that consists of the price movements
in the stocks of 30 leading industrial companies in the
United States. Abbr. DJIA. Often shortened to
Dow. -Also termed Dow Jones Average.
dowle stones (dohl). Rocks used as land boundaries. See
CALL (5); LOCATIVE CALLS.
dowment. See DOWER.
down market. See bear market under MARKET.
down payment. See PAYMENT.
down reversal. Securities. A sudden market-price decline
after a rising trend. The term applies to the early
stage ofthe decline; ifthe decline continues for several
months, it is termed a bear market. Also termed cor
rection; market correction.
downright evidence. Rare. A preponderance of evi
dence.
downside. Securities. 1. A downward movement of stock
prices. 2. The potential of a downward movement in
stock prices. Cf. UPSIDE.
downside risk. Securities. A likely risk that stock prices
will drop.
downside trend. Securities. The portion of the market
cycle that shows declining stock prices. Also termed
down trend.
downsizing. (1975) RedUcing the number of employees,
usu. to decrease labor costs and to increase efficiency.
downstream guaranty. See GUARANTY.
downstream merger. See MERGER.
down trend. See DOWNSIDE TREND.
downward departure. See DEPARTlJRE.
dowress (dow-ris). Archaic. 1. A woman legally entitled to
dower. 2. A tenant in dower. -Also spelled doweress. dowry (dow-ree). Archaic. The money, goods, or property
that a woman brings to her husband in marriage.
Also termed marriage portion; maritagium (mair-d
tay-jee-dm); maritage (mair-i-tij).
dozen peers. Hist. During the reign of Henry III, 12 peers
assembled by the barons to be the King's advisers.
D.P. abbr. DOMUS PROCERUM.
DPPA. abbr. DEADBEAT PARENTS PUNISHMENT ACT.
DPW. abbr. DEPARTMENT OF PUBLIC SERVICES.
Dr. abbr. 1. DEBTOR. 2. DOCTOR.
DR. abbr. DISCIPLINARY RULE.
draconian (dray-or drd-koh-nee-in), adj. (18c)(Of a
law) harsh; severe . This term derives from Draco,
the name of the ancient Athenian lawgiver. -Also
termed draconic.
draff (draf). Refuse; dregs; sweepings ofdust and dirt.
In weighing commodities, it is excluded from the waste
allowance for goods sold by weight.
draft, n. (17c) 1. An unconditional written order Signed
by one person (the drawer) directing another person
(the drawee or payor) to pay a certain sum of money
on demand or at a definite time to a third person (the
payee) or to bearer . A check is the most common
example of a draft. Also termed bill of exchange;
letter of exchange. Cf. NOTE (1). [Cases: Banks and
Banking 137, 189; Bills and Notes
bank draft. (1835) A draft drawn by one financial insti
tution on another. [Cases: Banks and Banking
189.]
clean draft. A draft with no shipping documents
attached.
demand draft. See Sight draft.
documentary draft. (1922) A payment demand con
ditioned on the presentation of a document, such as
a document of titie, invoice, certificate, or notice of
default. [Cases: Banks and Banking ('~-;c 161(1).]
export draft. A draft drawn by a domestic seller on a
foreign buyer, directing the buyer to pay the trade
amount to the seller or the seller's bank.
foreign draft. A draft drawn in one country or state
but payable in another. Also termed foreign bill of
exchange; international bill ofexchange. [Cases: Bills
and Notes (;:::::> 13.]
inland draft. A draft drawn and payable in the same
state or country. [Cases: Bills and Notes 13.]
overdraft. See OVERDRAFT.
share draft. (1978) A demand that a member draws
against a credit-union share account, payable to a
third party. A share draft is similar to a check that
is written to draw funds out of a checking account
at a bank. [Cases: Building and Loan Associations
40.]
sight draft. (1842) A draft that is payable on the bearer's
demand or on proper presentment to the drawer.
567 dram-shop act
Also termed demand draft. [Cases: Bills and Notes
C=:' 129(3).]
time draft. A draft that contains a specified payment
date. UCC 3-108. -Also termed time bill.
trade draft. A draft that instructs a |
date. UCC 3-108. -Also termed time bill.
trade draft. A draft that instructs a commercial enter
prise or its agent to pay the amount specified.
2. The compulsory enlistment ofpersons into military
service <his illness disqualified him from the draft>.
Also termed conscription; military draft. [Cases: Armed
Services C=:'20.] 3. An initial or preliminary version
<the second draft of the contract>.
draft, vb. (18c) 1. To write or compose <to draft a
contract>. 2. To recruit or select (someone) <to draft
someone to run for political office> <to draft someone
into the armed services>.
draft board. A civilian board that registers and selects
persons for mandatory military service. See SELECTIVE
SERVICE SYSTEM. [Cases: Armed Services C=:'20.8.]
drafter. (1884) A person who draws or frames a legal
document, such as a will, contract, or legislative bill.
Also termed draftsman.
drafting. (1878) The practice, technique, or skill involved
in preparing legal documents -such as statutes, rules,
regulations, contracts, and wills -that set forth the
rights, duties, liabilities, and entitlements of persons
and legal entities. -Also termed legal drafting.
draftsman. See DRAFTER.
dragnet arrest. See ARREST.
dragnet clause. 1. See MOTHER HUBBARD CLAUSE (1). 2.
See CROSS-COLLATERAL CLAUSE.
dragnet lien. See LIEN.
Drago doctrine. The principle asserted by Luis Drago,
Minister of Foreign Affairs ofthe Argentine Republic,
in a December 29, 1902 letter to the Argentine Minister
in Washington, in which Drago, responding to the
forcible coercion of Venezuela's unpaid loans by Great
Britain and others, argued that no public debt should be
collected from a sovereign state by force or through the
occupation ofAmerican territory by a foreign power.
The subject was presented at the Hague Conference of
1907, when a modified version of the Drago doctrine
was adopted.
drain, n. 1. The act ofdrawing a liquid off gradually; the
act of emptying. 2. The act ofgradually exhausting. 3.
A conduit for draining liquid, as a ditch or a pipe.
drain, vb. 1. To draw (a liquid) off gradually <the
farmer drained water from the property>. 2. To
exhaust gradually <the facility has drained the area's
natural resources>. 3. To empty gradually <the water
drained>.
drainage district. A political subdivision authorized to
levy assessments for making drainage improvements
within its area. [Cases: Drains C=:' 12.]
"In the United States there are numerous special districts
that administer drainage projects. They are typically
formed under state law after a local election or petition showing consent of a majority of affected landowners. The
projects are usualiy publicly financed, and assessments
are made against all property benefited, whether or not
ali individual landowners have consented. Such projects
can increase the agricultural capacity of drained lands
and provide 'new' land for buildings and other improve
ments .... Special statutes governing drainage districts
generally exempt them from restraints .... But if private
property rights are taken or if others are damaged, com
pensation must be paid." David H. Getches, Water Law in
a Nutshell 301 (3d ed. 1997).
drainage rights. The interest that a property owner has
in the natural drainage and flow of water on the land.
[Cases: Waters and Water Courses C=:' 119.]
dram (dram). 1. An apothecary measurement of fluid
equal to an eighth of an ounce. [Cases: Weights and
Measures C=:' 3.] 2. A small amount of anything, esp.
liquor.
drama, n. 1. A presentation of a story portrayed by words
and actions or actions alone; a play. Cf. DRAMATIC
COMPOSITION.
''The term [drama] is applied to compositions which imitate
action by representing the personages introduced in them
as real and as employed in the action itself. The varieties of
the drama differ more or less widely, both as to the objects
imitated and as to the means used in the imitation. But they
ali agree as to the method or manner which is essential
to the dramatic art, viz., imitation in the way of action." 7
Encyclopaedia Britannica 338 (9th ed. 1907).
2. An event or series of events having conflicting and
exciting elements that capture people's attention.
drama-pricing. A seller's tactic ofdramatically dropping
the price of something, esp. real estate, to attract a
buyer. -Also termed trauma-pricing.
dramatic composition. Copyright. A literary work
setting forth a story, incident, or scene intended to be
performed by actors, often with a musical accompani
ment. Cf. DRAMA (1). [Cases: Copyrights and Intellec
tual Property C=:'7.]
dramatic work. See WORK (2).
dram shop. Archaic. A place where alcoholic beverages
are sold; a bar or saloon. -Also spelled dram-shop;
dramshop. -Also termed grog-shop; drinking shop.
dram-shop act. (1859) A statute allowing a plaintiff to
recover damages from a commercial seller ofalcoholic
beverages for the plaintiff's injuries caused by a cus
tomer's intoxication. -Also termed civil-liability act;
civil-damage law. [Cases: Intoxicating Liquors C=:'
282-324.]
"Largely at the behest of the temperance movement,
statutes (called 'dram shop acts') were enacted in many
states which imposed some form of civil liability on those
engaged in the business of selling such beverages in favor
of third persons injured thereby .... At one time, almost
halfthe states had such laws; today, that number seems to
be declining. , . , A growing minority of states have over
thrown the common law rule and have created a common
law dram shop action. In most of these jurisdictions, lia
bility is predicated on statutes which regulate the liquor
business and prohibit certain sales by liquor licensees (to
minors, intoxicated persons, etc.) thus, where the sale is
unlawful, it is negligence per se .. , ." Edward J. Kionka,
Torts in a Nutshell 293-94 (2d ed, 1992).
dram-shop liability. (1995) Civil liability of a commer
cial seller of alcoholic beverages for personal injury
caused by an intoxicated customer . Claims based on
a similar type ofliability have been brought against
private citizens for personal injury caused by an intox
icated social guest. [Cases: Intoxicating Liquors
282-324.]
draw, vb. (13c) 1. To create and sign (a draft) <draw
a check to purchase goods>. 2. To prepare or frame
(a legal document) <draw up a will>. 3. To take out
(money) from a bank, treasury, or depository <she drew
$6,000 from her account>. 4. To select (a jury) <the
lawyers began voir dire and had soon drawn a jury>.
drawback. A government allowance or refund on import
duties when the importer reexports imported products
rather than selling them domestically. 19 USCA 1313.
[Cases: Customs Duties (;::>100.)
drawee (draw-ee). (l8c) The person or entity that a draft
is directed to and that is requested to pay the amount
stated on it. _ The drawee is usu. a bank that is directed
to pay a sum of money on an instrument. -Also
termed payor. [Cases: Banks and Banking (;::> 137; Bills
and Notes C=24.J
drawee bank. See payor bank under BANK.
drawer. (17c) One who directs a person or entity, usu. a
bank, to pay a sum ofmoney stated in an instrument
for example, a person who writes a check; the maker of
a note or draft. See MAKER. [Cases: Banks and Banking
137; Bills and Notes
drawing. 1. Patents. A specially prepared figure included
with a patent application to explain and describe the
invention. A drawing is required when necessary
to understand the invention. 35 USCA 113. [Cases:
Patents 100.] 2. Trademarks. A graphic or textual
depiction of a trademark, filed as part of an applica
tion for the mark to be placed on the primary register.
_ The drawing serves as the element that is published
in the Official Gazette. It must include the applicant's
name and address, the type of goods or services it will
identify, and the date offirst use or a statement ofintent
to use it in commerce. [Cases: Trademarks (;::> 1282.]
formal drawing. A drawing that complies with the
formatting requirements of the U.S. Patent and
Trademark Office, as set forth in 37 CFR 1.84, and is
stamped "Approved" by the PTa Drafter. Cf. informal
drawing. [Cases: Patents (:::-~ 100.]
front-page drawing. A drawing submitted with the
patent application and selected by the examiner as the
application's representative drawing. -The draWing is
reproduced on the front page of the published appli
cation or patent. [Cases: Patents (;::> 100.]
informal drawing. A drawing that does not comply
with the formatting requirements of the U.S. Patent
and Trademark Office . A drawing may be submit
ted as informal by the patent applicant, or declared
informal by the PTa Drafter. Cf. formal drawing. original drawing. A drawing submitted with the
original application.
special-form drawing. A drawing of a trademark that
contains some graphical element, such as a logo, a
picture, or a special type style . A stylized or special
form draWing must be submitted in black-and-white,
with a description ofthe colors to be used on the final
mark. Also termed stylized drawing.
substitute drawing. A draWing submitted after the
original application has been filed. - A substitute
drawing is often a formal drawing filed to replace an
informal drawing. [Cases: Patents (;::>100.J
typed drawing. A drawing of a trademark that is
purely textual, with no graphical component . A
typed drawing consists solely of the words, letters,
and numbers that make up the mark, typed in all
capitals. -Also termed typed-form drawing.
drawing account. See ACCOUNT.
drawing lots. (l3c) An act ofselection or decision-mak
ing based on pure chance, with the result depending on
the particular lot drawn. -Jurors are usu. instructed
by the court not to base their verdict on drawing lots
or similar methods ofchance.
drawlatch. Hist. A thief; a robber who waits until homes
are empty, then draws the homes' door latches to steal
what is inside.
drayage. A charge for transporting property.
DRE. abbr. DRUG-RECOGNITION EXPERT.
dread-disease insurance. See INSURANCE.
dreit dreit. See DROIT-DROIT.
D reorganization. See REORGANIZATION (2).
drift ofthe forest. Hist. A periodic examination offorest
cattle by officers who drive them to an enclosed place to
determine their ownership or common status.
"Drift of the forest is nothing else but an exact view or
examination taken once, twice, or oftener in a year as
occasion shall require, what beasts there are in the
forest, to the end that the common in the forest be not
overcharged, that the beasts of foreigners that have no
common there be not permitted, and that beasts not com
monable may be put out." Termes de fa Ley 185-87 Ost
Am_ ed. 1812).
drift-stuff. Any material floating at random in water
without a discoverable source. -Drift -stuff is usu. the
property ofthe riparian owner.
drilling contract. Oil & gas. A well-drilling agreement
between a drilling contractor, who owns drilling rigs
and associated equipment, and the owner or lessor of
the mineral rights. _ Ihe contract spells out the rights
and duties of the parties. In general, the more control
the interest-owner retains over the contractor, the
more liability the owner is exposed to for damages the
drilling causes. See DAYWORK DRILLING CONTRACT;
FOOTAGE DRILUNG CONTRACT. [Cases: Mines and
Minerals 109.]
turnkey drilling contract. Oil &gas. A drilling contract
under which the drilling contractor promises to
569 droit d'aubaine
perform specified functions for an agreed price. -The
lease operator has little or no discretion to control
the drilling contractor, and so assumes little or no
liability for damages the drilling may cause. [Cases:
Mines and Minerals (;::=> 109, 120.]
drilling-delay rental clause. Oil & gas. A provision in an
oil-and-gas lease giving the lessee the right to maintain
the lease from period to period during the primary term
by paying delay rentals instead of starting dri a
tions. _ Lessees use drilling-delay rental dau se
courts have said that they obviate any implied covenant
to drill a test well on the premises. Ihey are accepted by
lessors bel=ause they provide for periodic income from
the lease. See "or" lease, "unless" lease under LEASE.
[Cases: Mines and Minerals (;::=>78.1(3).]
"The purpose of the lease drilling-delay rental clause is to
ensure that the lessee has no obligation to drill during the
primary term by negating any implied obligation to test
the premises. Before drilling-delay rental clauses became
common in oil and gas leases, many courts held that
lessees had an implied duty to drill a test well on the leased
premises within a reasonable time after grant of the lease.
The rationale for the implied covenant was that the |
ased
premises within a reasonable time after grant of the lease.
The rationale for the implied covenant was that the major
consideration for the grant of the lease by the lessor was
the expectation that the property would be tested within
a reasonable time. The courts' determination of what was
a reasonable time ranged from a few months to several
years, depending upon the circumstances. Lessees found
that they could not rely upon a long stated term alone to
preserve their rights." John S. Lowe, Oil and Cas Law in a
Nutshell 195-96 (3d ed. 1995).
drinking age. See AGE.
drinking shop. See DRAM SHOP.
DRIP. abbr. DIVIDEND-REINVESTMENT PLAN.
drip rights. A servitude allowing water dripping off a
person's roof to fall on a neighbor's land. Waters
and Water Courses 121.]
driver. 1. A person who steers and propels a vehicle. 2.
A person who herds animals; a drover.
driver's license. The state-issued certificate authorizing
a person to operate a motor vehicle. -It is also often
used as a form of identification. [Cases: Automobiles
driving, n. The act of directing the course of something,
such as an automobile or a herd ofanimals.
driving under the influence. (1924) The offense of
operating a motor vehicle in a phYSically or mentally
impaired condition, esp. after consuming alcohol or
drugs. _ Generally, this is a lesser offense than driving
while intoxicated. But in a few jurisdictions the two
are synonymous. -Abbr. DUr. Also termed driving
while ability-impaired (DWAI); driving under the influ
ence ofliquor (DUlL); driving while intoxicated (DWI);
operating under the influence (OUI); operating while
intoxicated (OWI); operating a motor vehicle while
intoxicated (OMVI); operating a motor vehicle under
Ole influence (OMVUI). Cf. DRIVING WHILE INTOXI
CATED. [Cases: Automobiles
driving while ability-impaired. See DRIVING UNDER
THE INFLUENCE. driving while intoxicated. (19l3) 1. The offense of
operating a motor vehicle in a phYSically or mentally
impaired condition after consuming enough alcohol
to raise one's blood alcohol content above the statutory
limit (.08% in many states), or after consuming drugs.
_ Penalties vary widely; for example, the maximum
penalty in Missouri and Louisiana is a $500 fine and six
months in jail, while the penalties in New York range
from $500 to $5,000 in fines and up to four years in jail.
2. DRIVING UNDER THE INFLUENCE. -Abbr. DWI.
Also termed drunk driving. Cf. DRIVING UNDER THE
INFLUENCE. [Cases: Automobiles <::=,332.]
DRL. abbr. BUREAU OF DEMOCRACY, HUMAK RIGHTS,
AND LABOR.
DRM. See direct-reduction mortgage under MORTGAGE.
drofland (drohf-IClnd). Rist. A socage tenure that
required the holder to drive the landlord's cattle to
fairs and markets.
droit (drwah or droyt). [French "right"] 1. A legal right
or claim. 2. The whole body oflaw.
droit-close (droyt klohz), n. [Law French] Rist. A writ
against a lord on behalf ofa tenant in ancient demesne
holding land by charter in fee simple, in fee-tail, for
life, or in dower.
droit common (drayt kom-;.:m), n. [Law French] The
common law. Also termed droit coutumier. See
COMMON LAW (2).
droit coutumier. See DROIT COMMON.
droit d'accession (drwah dak-ses-syawn), n. [French
"right ofaccession"] Civil law. The right of the owner
ofa thing to whatever is produced by it or is united with
it, either naturally or artificially. La. Civ. Code arts. 483,
490, 507. -The equivalent of the Roman specificatio, the
right includes, for example, the right of a landowner to
new land depOSited on a riverbank and the right ofan
orchard owner to the fruit of the trees in the orchard.
See ACCESSION (4).
"DROIT D'ACCESSION . The civil law rule is that if the thing can
be reduced to the former matter it belongs to the owner
of the matter, e.g. a statue made of gold; but if it cannot
so be reduced it belongs to the person who made it, e.g.
a statue made of marble." 1 John Bouvier, Bouvier's Law
Dictionary 941 (8th ed. 1914).
droit d'accroissement (drwah da-krwas-mawn), n.
[French] French law. A right ofsurvivorship by which
an heir's interest is combined with the interest of a
coheir who either has refused or is unable to accept
the interest.
droit d'aubaine (drwah doh-ben), n. [Law French "right
of alienage"] Rist. With certain exceptions, a sover
eign's right to a deceased alien's property, regardless of
whether the alien had a will. -This right was primar
ilv exercised in France where it was revived in some
f~rm by Napoleon after its initial abolishment in 1790.
It was ultimately abolished in 1819. -Also spelled
droit d'aubaigne; droit d'aubenage. Also termed jus
albanagii;jus albinatus.
droit d'auteur 570
"Under the French rule of law, known as the droit
d'aubaine ... the whole property of an alien dying in France
without leaving children born in that country escheated to
the crown. The royal right was not universally exacted, and
at a very early period special exceptions were introduced
in favour of certain classes. Thus Louis XI exempted mer
chants of Brabant, Flanders, Holland, and Zealand from the
operation of the law, and a similar privilege was extended
by Henri II to merchants of the Hanse towns, and from
Scotland." 1 R.H. Inglis Palgrave, Palgrave's Dictionary of
Political Economy 68 (Henry Higgs ed., 2d ed. 1925).
"In France by the fourteenth century it was accepted that
a stranger might acquire and possess but not inherit or
transmit by will or on intestacy. In 1386 the French king
assumed the seigneurial droit d'aubaine or right to inherit.
In treaties in the seventeenth and eighteenth centuries the
right was frequently renounced. Louis XVI in 1787 abol
ished the right as against subjects of Great Britain without
reciprocity. The constituent Assembly abolished the right
in 1790 and it was commonly abolished elsewhere in the
early nineteenth century." David M. Walker, The Oxford
Companion to Law 378 (1980).
droit d'auteur (drwah doh-t<lr), n. [French "author's
right"] The copyright system used in France and other
civil-law nations and differing from common-law copy
right by giving more protection to an author's moral
right. See AUTHOR'S RIGHT.
droit de bris (drwah d" bree), n. [Law French "right ofa
wreck"] Hist. A right claimed by lords ofthe coasts of
France to fragments ofshipwrecks, including persons or
property that had washed ashore. e1he right was exer
cised primarily in Bretagne but was abrogated by Henry
III as duke of Normandy, Aquitaine, and Guienne, in
a charter granted in A.D. 1226. -Also termed droit de
bris sur Ie naufrages. Cf. DROIT DE NAUFRAGE.
droit de detraction (drwab d" day-trak-syawn), n.
[French "the right ofwithdrawal"] Int'llaw. A tax on
property acquired by succession or by will and then
removed to another state or country.
droit de garde (drwah d" gahrd), n. [French "right of
ward"] Rist. French law. A king's right to wardship of
a noble vassal who has not reached majority.
droit de gite (drwah d" zheet), n. [French "right of
lodging"] Hist. French law. A duty of a commoner
holding land in the royal domain to provide lodging
and food to a royal party traveling on royal business.
droit de greffe (drwah d" gref), n. [French "a right con
cerning the clerk's office"] Hist. French law. The Crown's
privilege to sell offices connected with the custody of
judicial records or official acts.
droit de maitrise (drwah d" may-treez), n. [French
"a right of mastership"] Hist. French law. A required
payment to the Crown by an apprentice who has
become a master worker.
droit de naufrage (drwah d" noh-frazh), n. [French] Hist.
French law. The right ofa sovereign or a lord owning a
seashore to seize the wreckage of a shipwreck and kill
the crew or sell them as slaves. Cf. DROIT DE BRIS.
droit de prise (drwah dd preez), n. [French "a right of
prize"] Hist. French law. A commoner's duty to supply articles on credit to the royal household for domestic
consumption.
droit de quint (drwah dd kant), n. [French "the right of
a fifth"] Hist. French law. A required payment made by
a noble vassal to the king each time ownership of the
vassal's fief changed.
droit de suite (drwah d" sweet), n. [French "right to
follow"] 1. A creditor's right to recover a debtor's
property after it passes to a third party. 2. Copyright.
An artist's resale royalty; the right of a work's creator
to benefit from appreciation in the value ofthe work by
receiving a portion ofthe profit from its later resales.
A droit de suite is recognized in some European
nations.
'The droit de suite (literally translated as the right to follow
the work) enables artists to claim a portion of the price for
which a work is resold. The idea is that an artist may sell a
painting for a low price at a time when they are unknown
and have little bargaining power. In due course, as the
artist's reputation develops, the painting may be resold
for continually increasing sums .... The right is seen to be
justified not only because it encourages creation, but also
because the artist is conceived (through the authorial link)
as being responsible for the increase in value (economic
success of their works)." Lionel Bently & Brad Sherman,
Intellectual Property Law 281 (200l).
droit d'execution (drwah dek-say-kyoo-syawn), n.
[French "right of execution"] French law. 1. A stock
broker's right to sell the stock bought for a client who
later refuses it. 2. A stockbroker's right to sell depOSited
securities to secure the broker against a loss in buying
for a client.
droit-droit (drwah-drwah), n. [Law French "double
right"] Hist. The unification of the right of possession
with the right ofproperty. Also termed jus duplica
tum; dreit dreit.
"A complete title to lands, tenements, and hereditaments,
For it is an ancient maxim of the law, that no title is com
pletely good, unless the right of possession be joined with
the right of property; which right is then denominated a
double right, jus duplicatum, or droit droit. And when to
this double right the actual posseSSion is also united ...
then, and then only, is the title completely legal." 2 William
Blackstone, Commentaries on the Laws of Eng/and 199
(l766).
droit du seigneur (drwah d" sen-yuur). [French "right
of the lord"] Hist. 1. A supposed customary right ofa
feudal lord to have sexual intercourse with a tenant's
bride on her wedding night. 2. A supposed custom
requiring sexual abstinence by a couple on their
wedding night. Also spelled droit de seigneur. Also
termed jus primae noctis.
droit ecrit (drwaht ay-kree), n. [French "the written
law"] French law. The civil law; the corpus juris civilis.
droit international (drwaht an-tair-nah-syoh-nahl), n.
[French] International law.
droit maritime (drwah ma-ree-teem). [French] Maritime
law.
droit moral (drwah maw-ral). [French] The doctrine
ofmoral right, which entitles artists to prevent others
from altering their works. e The basic rights protected
571 drug
by this doctrine are (1) the right to create, (2) the right
to disclose or publish, (3) the right to withdraw from
publication, (4) the right to be identified with the work,
and (5) the right to ensure the integrity of the work,
including the right to object to any mutilation or dis
tortion of the work. These rights are sometimes called
moral rights. See MORAL RIGHT. [Cases: Copyrights and
Intellectual Property C=>6.]
droit naturel (drwah na-tuu-rel), n. [French] Natural
law.
droits civils (drwah see-veel), n. [French] French law.
Private rights not connected to a person's civil status.
Foreigners had certain rights that could be enforced
when there was reciprocity with the foreigner's home
country.
droits ofadmiralty (droyts), n. The Lord High Admiral's
rights in connection with the sea, such as the right to
recover proceeds from shipwrecks, enemy goods con
fiscated at the beginning ofhostilities, jetsam, flotsam,
treasure, deodand, fines, forfeitures, sturgeons, whales,
and other large fishes . The droit proceeds are paid to
the Exchequer's office for the public's use. See PRIZE
(2).
'' |
s are paid to
the Exchequer's office for the public's use. See PRIZE
(2).
''The crown had originally certain rights to property
found upon the sea, or stranded upon the shore. The
chief kinds of property to which the crown was thus
entitled were, great fish (such as whales or porpoises),
deodands, wreck of the sea, flotsam, jetsam, and lagan,
ships or goods of the enemy found in English ports or
captured by uncommissioned vessels, and goods taken
or retaken from pirates .... After the rise of the court of
Admiralty the Lord High Admiral became entitled to these
droits by royal grant .... The right to droits carried with
it a certain jurisdiction. Inquisitions were held into these
droits at the ports, or the ViceAdmirals or droit gatherers
reported them to the Admiral. The large terms of the Admi
ral's Patents incited them, or their grantees, to frequent
litigation with private persons or other grantees of the
crown .... The Admiralty droits ... are now transferred
to the consolidated fund." 1 William Holdsworth, A History
ofEnglish Law 559-61 (7th ed. 1956).
droitural (droy-ch;J-r;Jl), adj. [fr. Old French droiture
"right"] Of or relating to an interest in property, as
distinguished from actual possession.
droit voisins (drwah vwah-san), n. [French] NEIGHBOR
ING RIGHT.
dromones (dr;J-moh-neez), n. pI. Hist. 1. Large ships. 2.
War vessels ofrecognized navies, usu. prepared for hos
tilities. -Also termed dramas; dromunda.
Droop quota. In some proportional-representation elec
tions, the minimum number of votes needed to win a
legislative seat . The quota is determined by a formula
based on the reciprocal of the number of representa
tives plus one -or l!(n + 1), where "n" is the number
ofrepresentatives being elected. The term is named for
the developer ofthe election format, Henry Richmond
Droop (1831-1884).
drop. English law. A rule nisi that is not adopted because
the members ofa court are equally divided on the issue .
The rule is dropped rather than discharged or made
absolute. drop-dead date. The date by which performance is
required as a condition. Cf. TIME-IS-OF-THE-ESSENCE
CLAUSE.
drop-dead provision. Contracts. A clause in an agree
ment or order allowing a party to take action without
notice if the other party fails to perform certain acts.
drop-down clause. Insurance. An insurance-policy pro
vision requiring an excess insurer to provide coverage
to the insured even though the underlying coverage
has not been exhausted, usu. because the underlying
insurers are insolvent. [Cases: Insurance C=>2396.]
drop letter. A letter addressed to someone in the delivery
area of the post office where the letter was posted.
[Cases: Postal Service C=>23.]
drop-shipment delivery. A manufacturer's shipment of
goods directly to the consumer rather than initially to
a wholesaler. Ifthe wholesaler takes the order, it may
receive part of the profit from the sale.
drop shipper. A wholesaler who arranges to have goods
shipped directly from a manufacturer to a consumer.
See DROP-SHIPMENT DELIVERY.
dropsy testimony. See TESTIMONY.
drove, n. 1. A group of animals driven in a herd. 2. A
large group of people in motion.
drover's pass. A free pass issued by a railroad company
to the cattle's drover, who accompanies the cattle on
the train. [Cases: Carriers C=>237.1.]
DRP. abbr. DIVIDEND-REINVESTMENT PLAN.
drug, n. (14c) 1. A substance intended for use in the diag
nosis, cure, treatment, or prevention of disease. 2. A
natural or synthetic substance that alters one's percep
tion or consciousness. See CONTROLLED SUBSTANCE.
[Cases: Controlled Substances C=>9.]
addictive drug. A drug (such as heroin or nicotine)
that, usu. after repeated consumption, causes physical
dependence and results in well-defined phYSiologi
cal symptoms upon withdrawal. [Cases: Controlled
Substances C=>9.]
adulterated drug. A drug that does not have the
strength, quality, or purity represented or expected.
copycat drug. See generic drug.
dangerous drug. A drug that has potential for abuse or
injury, usu. requiring a label warning that it cannot be
dispensed without a prescription. [Cases: Controlled
Substances C=>9.]
designer drug. A chemical substance that is created to
duplicate the pharmacological effects of controlled
substances, often by using the same chemicals con
tained in controlled substances, but manipulating
their formulas. [Cases: Controlled Substances C=>
9,43.]
ethical drug. A drug that can be dispensed only with a
doctor's prescription. Cf. proprietary drug.
generic drug. A drug containing the active ingredients
but not necessarily the same excipient substances (such
as binders or capsules) as the pioneer drug marketed
under a brand name. -Also termed copycat drug. See
pioneer drug. [Cases: Health (~319.]
new drug. A drug that experts have not recognized as
safe and effective for use under the conditions pre
scribed. 21 USCA 321(p)(l), The Food and Drug
Administration must approve all new drugs before
they can be marketed. [Cases: Health C~317.]
orphan drug. A prescription drug developed to treat
diseases affecting fewer than 200,000 people in the
United States (such as a rare cancer) or whose devel
opmental costs are not reasonably expected to be
recovered from the drug's sales. 21 USCA 360bb.
[Cases: Health C'"::>319.]
pioneer drug. The first drug that contains a particular
active ingredient that is approved by the FDA for a
specified use.
precompounded prescription drug. A drug that is dis
tributed from the manufacturer, to the pharmacist,
and then to the consumer without a change in form.
proprietary drug. A drug that is prepared and packaged
for the public's immediate use . Proprietary drugs
may be sold over the counter. Cf. ethical drug.
drug abuse. The detrimental state produced by the
repeated consumption of a narcotic or other poten
tially dangerous drug, other than as prescribed by a
doctor to treat an illness or other medical condition.
[Cases: Chemical Dependents 1; Controlled Sub
stances (;:::>38.]
drug addict. See ADDICT.
drug-assistance program. 1. A governmental program
to ensure access to necessary prescription medicines
for needy people who are uninsured or underinsured
or who otherwise lack health coverage. 2. Rehabilita
tive counseling, and monitoring, usu. in a nonresiden
tial setting, for detecting and treating users of illegal
drugs.
drug court. See COURT.
drug dependence. The psychological or physiological
need for a drug. [Cases: Chemical Dependents (;:::> L]
drug-free zone. (1986) An area in which the possession
or distribution of a controlled substance results in an
increased penalty. Drug-free zones are often estab
lished, for example, around public schools. [Cases:
Controlled Substances 100.]
druggist. A person who mixes, compounds, dispenses,
or otherwise deals in drugs and medicines, usu. either
as a proprietor of a drugstore or as a pharmacist.
drug kingpin. An organizer, leader, manager, financier,
or supervisor of a drug conspiracy; a person who has
great authority in running an illegal drug operation,
drug paraphernalia. (1920) Criminal law. Any type
of equipment, product, or material that is primarily
deSigned or intended for the unlawful manufacture,
processing, or hiding of a controlled substance, or
for the introduction of a controlled substance into the human body, when possession of the substance is
unlawful. 21 USCA 863(d). [Cases: Controlled Sub
stances 89.]
Drug Price Competition and Patent Term Restoration
Actofl984. See HATCH-WAXMAN ACT.
drug-recognition expert. A person trained to identify
various types of drugs and alcohol, to understand the
effects that drugs and alcohol have on people, and to
recognize the signs and symptoms of drug and alcohol
intoxication. -Abbr. DRE.
drug trafficking. See TRAFFICKING.
drummer. 1. A commercial agent who travels around
taking orders for goods to be shipped from wholesale
merchants to retail dealers; a traveling sales represen
tative. 2. A traveling salesperson. [Cases: Licenses
15(6).]
drummer floater policy. See INSURANCE POLlCY.
drungarius (dr;}ng-gair-ee-;}s), n. [Law Latin] Hist. 1.
A commander of a band of soldiers. 2. A naval com
mander.
drungus (dr.mg-g;}s), n. [Law Latin] Hist. A band of
soldiers.
drunk, adj. Intoxicated; (of a person) under the influ
ence of intoxicating liquor to such a degree that the
normal capacity for rational thought and conduct is
impaired. drunk, n.
drunkard. 1. A person who consumes intoxicating
substances frequently and exceSSively; esp., one who is
habitually or often intoxicated. 2. An alcoholic . This
term may also be used to refer to a drug addict. Also
termed habitual drunkard. [Cases: Chemical Depen
dents Crj 1.]
drunk driving. See DRIVING WHILE INTOXICATED.
drunkenness. 1. A state ofintoxication; inebriation; the
condition resulting from a person's ingestion ofexces
sive amounts of intoxicating liquors sufficient to affect
the person's normal capacity for rational thought and
conduct. 2. A habitual state of intoxication. [Cases:
Chemical Dependents
excessive drunkenness. A state of drunkenness in
which a person is so far deprived of reason and under
standing that he or she is incapable of understanding
the character and consequences of an act.
drunkometer (dr;}ng-kom-;}-t;}r). See BREATHALYZER.
dry, adj. (bef. 12c) 1. Free from moisture; desiccated <dry
land>. 2. Unfruitful; destitute of profitable interest;
nominal <a dry trust>. 3. (Of a jurisdiction) prohibiting
the sale or use of alcoholic beverages <a dry county>.
[Cases: Intoxicating Liquors (;:::>24-43.]
dry check. See bad check under CHECK.
dry exchange. Something that pretends to pass on both
sides ofa transaction, but passes on only one side.
"Dry exchange, . , seems to be a subtil term invented to
disguise usury, in which something is pretended to pass
on both sides, whereas in truth nothing passes on the one
side." Termes de la Ley 185 (1 st Am. ed. 1812),
573 dual-sovereignty doctrine
"DRY EXCHANGE ... A euphemism applied to the 'coverture'
or 'colouring' of the stringent statutes passed during the
Tudor period against usury .... Usury, which was con
demned by religion and law alike during the middle ages,
was from the middle of the 16th century no longer to be
confounded with the legitimate employment of capital;
but the sentiment which inspired the above enactments
was that of governing classes associated with the landed
interest." 1 R.H. Inglis Palgrave, Palgrave's Dictionary of
Political Economy 643 (Henry Higgs ed., 2d ed. 1925).
dry hole. Oil & gas. An oil or gas well that is incapable of
producing enough minerals to justify the cost ofcom
pleting it and putting it into production.
dry-hole agreement. Oil & gas. A support agreement
in which 'the contributing party agrees to make a cash
contribution to the drilling party in exchange for geo
logical or drilling information if the well drilled is
unproductive. See SUPPORT AGREEMENT. [Cases: Mines
and Minerals (;:::> 109.]
dry-hole clause. Oil & gas. A provision in an oil-and
gas lease specifying what a lessee must do to maintain
the lease for the remainder of the primary term after
drilling an unproductive well. A dry-hole clause is
intended to make clear that the lessee may maintain
the lease by paying delay rentals for the remainder of
the primary term. [Cases: Mines and Minerals (;:::>
78.1(3).]
dry mortgage. See MORTGAGE.
dry presumption. See PRESUMPTION.
dry receivership. See RECEIVERSHIP.
dry rent. See RENT (1).
dry trust. See TRUST.
DS. abbr. BUREAU OF DIPLOMATIC SECURITY.
d.s.b. abbr. DEBET SINE BREVE.
DSCA. abbr. DEFENSE SECURITY COOPERATION
AGENCY.
DSS. abbr. 1. DEPARTMENT OF SOCIAL SERVICES. 2.
DEFENSE SECURITY SERVICE.
DTC. abbr. DEPOSITORY TRUST CORPORATION.
DTRA. abbr. DEFENSE THREAT REDUCTION AGENCY.
d.t.'s. abbr. DELIRIUM TREMENS.
dual agent. See AGENT (2).
dual-capacity doctrine. (1914) The principle that makes
an employer -who is normally shielded from tort lia
bility by workers'-compensation laws -liable in tort
to an employee if the employer and employee stand
in a secondary relationship that confers independent
obligations on the employer. -Also termed dual-per
|
er and employee stand
in a secondary relationship that confers independent
obligations on the employer. -Also termed dual-per
sona doctrine. Cf. DUAL-PURPOSE DOCTRINE. [Cases:
Workers' Compensation (;:::>2162.]
dual citizenship. 1. A person's status as a citizen oftwo
countries, as when the person is born in the United
States to parents who are citizens of another country,
or one country still recognizes a person as a citizen
even though that person has acquired citizenship in
another country. [Cases: Citizens (;:::> 18.] 2. The status of a person who is a citizen of both the United States
and the person's country of residence.
dual contract. See CONTRACT.
dual-criminality principle. The rule prohibiting the
international extradition of a fugitive unless the offense
involves conduct that is criminal in both countries.
[Cases: Extradition and Detainers (;:::>5.]
dual distributor. (1945) A firm that sells goods simulta
neously to buyers on two different levels of the distri
bution chain; esp., a manufacturer that sells directly to
both wholesalers and retailers.
dual distributorship. See DISTRIBUTORSHIP.
dual employment. See MOONLIGHTING.
dual fund. See MUTUAL FUND.
dual inheritance. See INHERITANCE.
duality ofart. Copyright. The twofold nature of applied
art as both functional and aesthetic . The United States
takes a duality-of-art approach to copyright, protecting
applied art only when the item could stand alone as an
identifiable work of art even if it did not perform the
function it was designed to do. -Also termed noncu
mulative approach. Cf. UNITY OF ART.
dual listing. See LISTING (2).
dual-persona doctrine (d[y]oo-JI pJr-soh-nJ). (1982)
See DUAL-CAPACITY DOCTRINE.
dual-priorities rule. The principle that partnership cred
itors have priority for partnership assets and that indi
vidual creditors have priority for a partner's personal
assets. This rule has been abandoned by the bank
ruptcy laws and the Revised Uniform Partnership Act.
The bankruptcy code now allows partnership creditors
access to all assets ofbankrupt partners, not just those
remaining after payment to individual creditors.
Also termed jingle rule.
dual-prosecution rule. (1981) The principle that the
federal government and a state government may both
prosecute a defendant for the same offense because
both governments are separate and distinct entities.
See DUAL-SOVEREIGNTY DOCTRINE. [Cases: Double
Jeopardy (;:::> 186.]
dual-purpose doctrine. (1953) The principle that an
employer is liable for an employee's injury that occurs
during a business trip even though the trip also serves
a personal purpose. Cf. DUAL-CAPACITY DOCTRINE.
[Cases: Labor and Employment (;:::>3046(2); Workers'
Compensation (;:::>715.]
dual-purpose fund. See dual fund under MUTUAL
FUND.
dual-residential parent. See PARENT.
dual-shop operation. See DOUBLE-BREASTING.
dual-sovereignty doctrine. (1957) The rule that the
federal and state governments may both prosecute
a person for a crime without violating the consti
tutional protection against double jeopardy, if the
person's act violated both jurisdictions' laws. See
duarchy 574
DUAL-PROSECUTION RULE. [Cases: Double Jeopardy
186.]
duarchy (d[y]oo-ahr-kee), n. [fro Greek duo "two" +
archia "rule"] See DIARCHY.
dubii juris (d[y]oo-bee-I joor-is). [Latin] Hist. Of
doubtful law. -The phrase appeared in reference to an
unsettled legal point.
dubitante (d[yJoo-bi-tan-tee). [Latin] Doubting. -This
term was usu. placed in a law report next to a judge's
name, indicating that the judge doubted a legal point
but was unwilling to state that it was wrong. -Also
termed dubitans.
"[E]xpressing the epitome of the common law spirit, there
is the opinion entered dubitante ~ the judge is unhappy
about some aspect of the decision rendered, but cannot
quite bring himselfto record an open dissent." Lon L. Fuller,
Anatomvofthe Law147 (1968).
dubitatur (d[y]oo-bi-tay-tdr). [Latin] It is doubted. -This
phrase indicates that a point oflaw is doubtful. -Also
termed dubitavit.
ducat (dak-it). A gold coin used as currency, primarily
in Europe and first appearing in Venice in the early
BOOs, with the motto sit Ubi, Christe, dato, quem tu
regis, iste Ducatus ("let this duchy which thou rulest
be dedicated to thee, 0 Christ"). -It survived into the
20th century in several countries, including Austria
and the Netherlands.
ducatus (d[y]d-kay-tds), n. [Law Latin] A duchy; a
dukedom.
duces tecum (d[y]oo-S<lS tee-bm also tay-bm). [Latin]
(17c) Bring with you. See subpoena duces tecum under
SUBPOENA.
duces tecum licet languidus (d[y]oo-sds tee-k<lm iI-set
lang-gwd-d<ls), n. [Law Latin "bring with you, although
sick"J Hist. A habeas corpus writ ordering a sheriff to
bring someone into court despite a return by the sheriff
noting that the person was too ill to come.
Duchy Court of Lancaster (d;)ch-ee kort <lV lang-kd
st<lr). Hist. English law. A court with special equity
jurisdiction, similar to the equity courts of chancery,
in which the Duchy ofLancaster's chancellor or deputy
presides over issues primarily relating to land held by
the Crown in right ofthe Duchy.
Duchy of Lancaster (d;)ch-ee <lV lang-k<l-st<lr). Land,
in the county of Lancaster, the Savoy in London, and
around Westminster, that originally belonged to the
Duke of Lancaster and later belonged to the Crown in
right of the Duchy.
ducking stool. See CASTIGATORY.
due, adj. (l4c) 1. Just, proper, regular, and reasonable
<due care> <due notice>. 2. Immediately enforceable
<payment is due on delivery>. 3. Owing or payable;
constituting a debt <the tax refund is due from the
IRS>.
due-bill. See IOU.
due care. See reasonable care under CARE. due compensation. See just compensation under COM
PENSATION.
due consideration. 1. The degree of attention properly
paid to something, as the circumstances merit. 2. See
sufficient consideration under CONSIDERATION (1).
due course, payment in. See PAYMENT IN DUE COURSE.
due-course holder. See HOLDER IN DUE COURSE.
due course oflaw. See DUE PROCESS.
due day. See BOON DAY.
due deference. The appropriate degree of respect with
which a reviewing authority must consider the decision
ofa primary decision-maker.
due diligence. See DILIGENCE.
due-diligence information. Securities.lnformation that
a broker-dealer is required to have on file and make
available to potential customers before submitting quo
tations for over-the-counter securities. -The informa
tional requirements are set out in SEC Rule 15c2-11 (17
CFR 240.15c2-11).
due influence. (17c) The sway that one person has over
another, esp. as a result of temperate persuasion,
argument, or appeal to the person's affections. Cf.
UNDUE INFLUENCE.
duel. (ISc) 1. TRIAL BY COMBAT. 2. A Single combat;
specif., a prearranged combat with deadly weapons
fought between two or more persons under prescribed
rules, uSU. in the presence of at least two witnesses,
to resolve a previous quarrel or avenge a deed. -In
England and the United States, death resulting from a
duel is treated as murder, and seconds may be liable as
accessories. -Also termed monomachy; single combat.
Cf. MUTUAL COMBAT. [Cases: Homicide ~S37.]
"[AJ duel which did not end in death was only a misde
meanour, till the passing of Lord Ellenborough's Act, 43
Geo. 3, C. 58, passed in 1803 .... A duel which did end
fatally might be either murder or manslaughter, according
to the following distinctions: ~If the duel was on a sudden
falling out, if the parties fought in hot blood and on the
spot and one was killed, the offence was only manslaugh
ter, however aggravated the case might be.... If a fatal
duel took place when the parties were in cool blood, it was
held to be murder, and of this there has never been any
doubt whatever in this country, though juries not unfre
quently acquitted in such cases if they sympathized with
the prisoner." 3James Fitzjames Stephen, A History ofthe
Criminal Law ofEngland 100 (1883).
"Dueling is distinguished from other offenses in that it has
none of the elements of sudden heat and paSSion, and is
usually carried out with some formality. A duel has been
distinguished from an 'affray' in that an affray occurs on a
sudden quarrel while a duel is always the result of design."
28A c.J.S. Dueling 2, at 154 (1996).
dueling. n. The common-law offense of fighting at an
appointed time and place after an earlier disagreement.
_ Ifone ofthe participants is killed, the other is guilty
ofmurder, and all who are present, abetting the crime,
are gUilty as principals in the second degree. [Cases:
Criminal Law (;::>4S.30.J
"Dueling is prearranged fighting with deadly weapons,
usually under certain agreed or prescribed rules .... It is a
misdemeanor at common law to fight a duel, even though
no death result, to challenge another to a duel, intention
ally to provoke such a challenge, or knowingly to be the
bearer of such a challenge." Rollin M. Perkins & Ronald N.
Boyce, Criminal Law 243 (3d ed. 1982).
duellum (q[y]oo-el-<lm), n. [fro Latin duo "two"] Hist. See
TRIAL BY COMBAT.
due negotiation. See NEGOTIATION.
due notice. See NOTICE.
due-on-encumbrance clause. (1971) A mortgage provi
sion giving the lender the option to accelerate the debt if
the borrower further mortgages the real estate without
the lender's consent . All state laws on the enforcement
of due-ori-sale clauses have been preempted, and the
subject is now governed exclusively by the Garn Act. 12
USCA 170Ij-3. [Cases: Mortgages (:::::J403.]
due-on-sale clause. (1967) A mortgage provision that
gives the lender the option to accelerate the debt if the
borrower transfers or conveys any part of the mort
gaged real estate without the lender's consent. [Cases:
Mortgages (;=c403.)
due posting. (1893) 1. The stamping and placing ofletters
or packages in the U.S. mail. [Cases: Postal Service
(:::::J 15.) 2. 'Ihe proper entry ofan item into a ledger. 3.
Proper publication; proper placement of an item (such
as an announcement) in a particular place, as on a par
ticular wall.
due process. (16c) The conduct of legal proceedings
according to established rules and principles for the
protection and enforcement of private rights, including
notice and the right to a fair hearing before a tribunal
with the power to decide the case. Also termed due
process oflaw; due course oflaw. See FUNDAMENTAL
FAIRNESS DOCTRINE. [Cases: Constitutional Law
3840-4841.]
"The words 'due process' have a precise technical import,
and are only applicable to the process and proceedings
of the courts of justice; they can never be referred to an
act of legislature." Alexander Hamilton, Remarks on an
Act for Regulating Elections, New York Assembly, 6 Feb.
1787, in 4 Papers ofAlexander Hamilton 34. 35 (Harold C.
Syrett ed., 1962).
'The words, 'due process of law,' were undoubtedly
intended to convey the same meaning as the words, 'by
the law of the land: in Magna Charta." Murray's Lessee v.
Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272,
276 (1856) (CurtiS, J.).
"Due process of law in each particular case means, such
an exertion of the powers of government as the settled
maxims of law sanction, and under such safeguards for the
protection of individual rights as those maxims prescribe
for the class of cases to which the one in question belongs."
Thomas M. Cooley, A Treatise on the Constitutional Limita
tions 356 (1868).
"An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality
is notice reasonably calculated, under all the circum
stances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present
their objections .... The notice must be of such nature as
reasonably to convey the required information." Mullane
V. Central Hanover Bank &Trust Co., 339 U.s. 306, 314, |
V. Central Hanover Bank &Trust Co., 339 U.s. 306, 314, 70
S.Ct. 652, 657 (1950) Uackson,J.). economic substantive due process. (1957) The doctrine
that certain social policies, such as the freedom of
contract or the right to enjoy property without inter
ference by government regulation, exist in the Due
Process Clause ofthe 14th Amendment, particularly
in the words "liberty" and "property."
procedural due process. (1934) The minimal require
ments ofnotice and a hearing guaranteed by the Due
Process Clauses of the 5th and 14th Amendments,
esp. if the deprivation of a significant life, liberty, or
property interest may occur . The Supreme Court
has ruled that the fundamental guarantees of due
process apply to children as well as to adults and that
they apply in situations in which a juvenile may be
deprived ofliberty even though the juvenile proceed
ings may be labeled civil rather than criminal. In re
Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967). In that case, the
Court held that an accused child was entitled to notice
of the charges, the privilege against self-incrimina
tion, the right to confront witnesses, and the right to
summon witnesses on his or her own behalf. Justice
Abe Fortas wrote the majority opinion in Gault, and
Chief Justice Earl Warren predicted that it would
come to be called the "Magna Carta for juveniles."
[Cases: Constitutional Law (:::::J386i.J
substantive due process. (1933) The doctrine that the
Due Process Clauses ofthe 5th and 14th Amendments
require legislation to be fair and reasonable in content
and to further a legitimate governmental objective.
[Cases: Constitutional Law (;=c3892.]
Due Process Clause. (1890) The constitutional provision
that prohibits the government from unfairly or arbi
trarily depriving a person of life, liberty, or property.
There are two Due Process Clauses in the U.S. Con
stitution, one in the 5th Amendment applying to the
federal government, and one in the 14th Amendment
applying to the states (although the 5th Amendment's
Due Process Clause also applies to the states under
the incorporation doctrine). Cf. EQUAL PROTECTION
CLAUSE. [Cases: Constitutional Law (;=c 3840-4841.]
due process oflaw. See DUE PROCESS.
due-process rights. (1930) The rights (as to life, liberty,
and property) so fundamentally important as to require
compliance with due-process standards offairness and
justice. See DUE PROCESS; DUE PROCESS CLAUSE; FUN
DAMENTAL-FAIRNESS DOCTRINE.
due proof. Sufficient and properly submitted evidence
to produce a result or support a conclusion, such as
an entitlement to benefits supported by an insur
ance policy . The evidence need not be the best proof
possible. Metropolitan Life Ins. Co. v. Frisch, 65 N.E. 2d
852,855 (Ind. App. 1946).
Duhig rule. Oil & gas. A rule of title interpretation devel
oped to deal with the common problem of overcon
veyance offractional interests by giving priority to the
granted interest over the reserved interest. Duhig v.
Peavy Moore Lumber Co., Inc., 144 S.W.2d 878 (Tex.
1940). The rule is not accepted in all states and is
DUI 576
generally limited to conveyances by warranty deed.
[Cases: Mines and Minerals C=:>55(4), 55(7).]
DUI. abbr. DRIVING UNDER THE INFLUENCE.
DUlL. abbr. Driving under the influence of liquor. See
DRIVING UNDER THE INFLUENCE.
duke. 1. A sovereign prince; a ruler of a duchy. 2. The
first order of nobility in Great Britain below the royal
family.
;'But after the Norman conquest, which changed the military
policy of the nation, the kings themselves continuing for
many generations dukes of Normandy, they would not
honour any subjects with that title, till the time of Edward
III; who, claiming to be the king of France, and thereby
losing the ducal in the royal dignity, in the eleventh year
of his reign created his son, Edward the black prince, duke
of Cornwall: and many, of the royal family espeCially, were
afterwards raised to the honour. However, in the reign of
queen Elizabeth, A.D. 1572, the whole order became utterly
extinct: but it was revived about fifty years afterwards by
her successor, who was remarkably prodigal of honours,
in the person of George Villiers duke of Buckingham." 1
William Blackstone, Commentaries on the Laws of England
385 (1765).
Duke ofExeter's Daughter. A torture rack in the Tower
ofLondon, named after the Duke ofExeter, Henry VI's
minister who assisted in introducing it to England.
Also termed brake.
"The rack ... to extort a confession from criminals, is a
practice of a different nature .... And the trial by rack is
utterly unknown to the law of England; though once when
the dukes of Exeter and Suffolk. , , had laid a design to
introduce the civil law into this kingdom as the rule of
government, for a beginning thereof they erected a rack for
torture; which was called in derision the duke of Exeter's
daughter, and still remains in the tower of london: where
it was occasionally used as an engine of state, not of law,
more than once in the reign of queen Elizabeth." 4 William
Blackstone, Commentaries on the Laws ofEngland 320-21
(1769).
Duke of York's Laws. A body oflaws compiled in 1665
by Governor Nicholls for the more orderly govern
ment of the New York colony . The laws were gradu
ally extended to the entire province.
dulocracy (d[y]oo-lok-r<l-see), n. [fro Greek doulos
"servant" + kratein "to rule"] A government in which
servants or slaves have so many privileges that they
essentially rule. -Also spelled doulocracy.
duly, adv. In a proper manner; in accordance with legal
requirements.
dum (d<lm). [Latin] While; provided that.
dumb bidding. An auction bidding process in which the
minimum acceptance price is placed under the object
for sale -unbeknownst to the bidders -and no bids
are accepted until they meet that price . Dumb bidding
was initially intended to avoid the taxes imposed on
auction sales by the statute of 1779, 19 Geo. 3, ch. 56,
5-6, but the courts determined that the practice was
fraudulent. [Cases: Auctions and Auctioneers C=:>7.J
dum fervet opus (d<lm f;lr-vet oh-p<ls). [Latin] While the
action is fresh; in the heat of action . This term usu.
referred to matters oftestimony. dumfuit infra aetatem (d<lm fyoo-it in-fra ee-tay-t<lm),
n. [Law Latin "while he was within age"] Hist. A writ
allowing a person of full age to recover lands feoffed
while the person was an infant. 'Ihe remedy was also
available to the person's heirs. It was later replaced by
the action of ejectment. See EJECTMENT.
dum fuit in prisona (dam fyoo-it in priz-<l-na), n. [Law
Latin "while he was in prison"] Hist. A writ restoring a
man to his estate after he transferred the estate under
duress of imprisonment. See DURESS OF IMPRISON
MENT.
dummodo (dilm-<l-doh). [Latin] So that; provided that.
This term was used as a limitation in conveyances,
as in dummodo so/verit talem redditum (dilm-<l-doh
sol-v<l-rit tay-Iem red-i-t<lm), meaning "provided he
shall pay such a rent."
dummodo constet de persona (dilm-<l-doh kon-stet dee
par-soh-n<l). [Latin] Hist. Provided it be evident who is
the person meant. See CONSTAT DE PERSONA.
dummodo vassalli conditio non sit deterior (d;lm-a
doh vas-<l-h k<ln-dish-ee-oh non sit di-teer-ee-or).
[Law Latin] Rist. Provided the vassal's condition be
not made worse . The phrase was used as a limitation
in a conveyance. See DUMMODO.
dummy. adj. (1846) Sham; make-believe; pretend
<dummy corporation>.
dummy, n. (1866) 1. A party who has no interest in a
transaction, but participates to help achieve a legal goal.
2. A party who purchases property and holds legal title
for another. Cf. STRAW MAN (3).
dummy corporation. See CORPORATION.
dummy director. See DIRECTOR.
dummy shareholder. See SHAREHOLDER.
dum non fuit compos mentis (dC)m non fyoo-it kom-p<ls
men-tis), n. [l.aw Latin "while he was of unsound
mind"] Hist. A writ allowing heirs to recover an estate
transferred by someone of unsound mind.
dump, vb. 1. To drop (something) down, esp. in a heap; to
unload. 2. To sell (products) at an extremely low price;
specif., to sell (products) in a foreign market at a lower
price than at home.
dumping. (1857) 1. The act ofselling a large quantity of
goods at less than fair value. 2. Selling goods abroad at
less than the market price at horne. See ANTIDUMPING
LAW. [Cases: Environmental Law C=:>353, 354.]
"Dumping involves selling abroad at a price that is less than
the price used to sell the same goods at home (the 'normal'
or 'fair' value). To be unlawful, dumping must threaten or
cause material injury to an industry in the export market,
the market where prices are lower. Dumping is recognized
by most of the trading world as an unfair practice (akin
to price discrimination as an antitrust offense)." Ralph H,
Folsom & Michael W. Gordon, International BUSiness Trans
actions 6.1 (1995).
3. The disposal ofwaste matter into the environment.
[Cases: Environmental Law C=:>341.]
Dumping Act. A federal antidumping law requir
ing the Secretary of the Treasury to notify the U.S.
International Trade Commission (USITC) whenever
the Secretary determines that goods are likely to be sold
abroad at less than their fair value, so that the USITC
can take appropriate action. 19 USCA 1673. [Cases:
Customs Duties ~21.5.]
dump-truck lawyer. Slang. A public defender who spends
little time or effort and exhibits little skill mounting
a defense on behalf of an indigent defendant. -This
derogatory term arises from criminal defendants'
common perception (typically a misperception) that
public defenders prefer to dump cases by making plea
bargains rather than spend time preparing for trial.
People v .. Clark, 833 P.2d 561, 590 (Cal. 1992); People
v. Huffman, 139 Cal. Rptr. 264, 267 n.2 (Cal. App.
1977).
dum se bene gesserit (d;,m see bee-nee jes-dr-it). [Latin
"while he behaves himself properly"jllist. During good
conduct. Cf. QUAMDIU BENE SE GESSERINT.
dum sola (d;!m soh-I;!). [Latin] While Single. _ This
phrase was used to limit conveyances, esp. to women,
as in dum sola fuerit ("while she remains single"), dum
sola et casta vixerit ("while she remains single and
chaste"), and dum sola et casta ("while she is unmar
ried and lives chastely").
dun (d;,n), vb. (17c) To demand payment from (a delin
quent debtor) <his creditors are dunning him daily>.
dun, n.
Dunaway hearing. (1983) Criminal law. A pretrial
hearing to determine whether evidence was obtained
in violation ofFourth Amendment protections against
unreasonable search and seizure. -The name derives
from Dunaway v. New York, 442 U.S. 200,99 S.Ct. 2249
(1979). [Cases: Criminal Law ~394.6(5),]
dungeon. 1. The bottom part of a fortress or tower, often
used as a prison. Also termed dungeon-keep. 2. A
dark underground prison.
duunage (d<ln-ij). Anything, esp. pieces of wood, that
are put underneath or between cargo on a vessel to
prevent the cargo from bruising or getting wet from
water leaking into the hold. [Cases: Shipping 110.J
duodecemvirale judicium (d[yJoo-oh-des-am-vd-ray-lee
joo-dish-ee-;,m). [Latin] A trial by 12 persons; a trial
by jury.
duodecima manus (d[yJoo-oh-des-;!-m;, man-;,s). [Latin]
Twelve men.
"The manner of waging and making law is this. He that
has waged, or given security, to make his law, brings with
him into court eleven of his neighbours: ... for by the
old Saxon constitution every man's credit in courts of law
depended upon the opinion which his neighbours had of
his veracity, The defendant then, standing at the end of the
bar, is admonished by the judges of the nature and danger
of a false oath .. , . And thereupon |
the
bar, is admonished by the judges of the nature and danger
of a false oath .. , . And thereupon his eleven neighbours
or compurgators shall avow upon their oaths that they
believe in their consciences that he saith the truth .... It is
held indeed by later authorities, .. that fewer than eleven
compurgators will do: but Sir Edward Coke is positive that
there must be this number ... for as wager of law is equiva
lent to a verdict in the defendant's favor, it ought to be
established by the same or equal testimony, namely, by
the oath of twelve men. And so indeed Glanvil expresses it, ... ,'jurabit duodecima manu' ... ."' 3 William Blackstone,
Commentaries on the Laws ofEngland 343 (1768).
duodena (d[y]oo-a-dee-na). [LatinJ 1. A jury of twelve.
2. A dozen of anything.
duopoly (d[y]oo-op-a-Iee). A market in which there are
only two sellers of a product,
duopsony (d[y]oo-op-s;!-nee). A market in which there
are only two buyers of a product.
duoviri (d[y]oo-oh-v;,-n or d[y]oo-oh VI-rI). See
DUUMVIRI.
duplex querela (q[yJoo-pleks kWd-ree-l;,). 1. Hist. Eccles.
law. An appeal by a clerk to the archbishop in response
to the bishop's delaying or wrongfully refusing to do
justice. 2. Eccles. law. An appeal to a person's immediate
superior, as when a bishop appeals to an archbishop.
Also termed double quarrel; double complaint.
duplex valor maritagii (d[y]oo-pleks val-dr mar-d-tay
jee-I), n. [Law Latin "double the value of a marriage"]
Hist. A ward's forfeiture of double the value of a
marriage made without the guardian's consent. -In
the quotation that follows, Blackstone uses the accu
sative form (duplicem valorem maritagii) because the
phrase follows the verb forfeited.
"For, while the infant was in ward, the guardian had the
power of tendering him or her a suitable match, without dis
paragement, or inequality: which if the infants refused, they
forfeited the value of the marriage. , . to their guardian;
that is, 50 much as ajury would assess, or anyone would
bona fide give to the guardian for such an alliance: ... and,
if the infants married themselves without the guardian's
consent, they forfeited double the value, dup/icem valorem
maritagii. This seems to have been one of the greatest
hardships of our ancient tenures."' 2 William Blackstone,
Commentaries on the Laws ofEngland 70 (1766).
duplicate (d[y]oo-pli-kit), n. (16c) 1. A reproduction of
an original document having the same particulars and
effect as the original. See Fed. R. Evid. 101(4).2. A new
original, made to replace an instrument that has been
lost or destroyed. Also termed (in sense 2) duplicate
original. [Cases: Criminal Law C='399; Evidence
173.] duplicate (d[y]oo-pli-kit), adj.
"A 'duplicate' is defined for purposes of the best evidence
rule as a counterpart produced by the same impression
as the original, or from the same matrix, or by means of
photography including enlargements and miniatures, by
mechanical or electronic recording, by chemical reproduc
tion, or by other equivalent techniques which accurately
reproduce the original; copies subsequently produced
manually, either handwritten or typed, are not within this
definition." 29A Am. Jur. 2d Evidence 1085 (1994).
duplicate (d[y]oo-pli-kayt), vb. 1. To copy exactly <he
duplicated the original document>. 2. To double; to
repeat <she duplicated the performance>.
duplicate-claiming rejection. See REJECTION.
duplicate taxation. See double taxation under
TAXATION,
duplicate will. See WILL.
duplicatio (d[y]oo-pli-kay-shee-oh), n. [fro Latin dupli
care "to double"] 1. Roman & civil law. A defen
dant's answer to the plaintiffs replication, similar to
578 duplicative
a rejoinder in common law. -Also termed (in Scots
law) duply. See REPLICATION. 2. The fourth in a series.
3. A duplication ofa transaction.
duplicative (doo-plik-~-tiv also doo-pli-kay-tiv), adj. 1.
Having or characterized by having overlapping content,
intentions, or effect <duplicative sources> <duplica
tive evidence> <duplicative regulations>. 2. Duplicate;
having or characterized by having identical content
<duplicative database> <duplicative backup>.
duplicatum jus (d[y]oo-pli-kay-t~m jas), n. (Law Latin
double right"] A double right, such as droit droit (both
the "right ofpossession and right of property").
duplicito~s (d[y]oo-plis-i-t~s), adj. 1. (Of a person)
deceitful; double-dealing. 2. (Of a pleading, esp. an
indictment) alleging two or more matters in one plea;
characterized by double pleading.
duplicitous appeal. See APPEAL.
duplicitous indictment. See INDICTMENT.
duplicitous information. See INFORMATION.
duplicity (d[y]oo-plis-i-tee), n. (15c) I. Deceitfulness;
double-dealing. 2. The charging of the same offense
in more than one count of an indictment. 3. The
pleading oftwo or more distinct grounds of complaint
or defense for the same issue . In criminal procedure,
this takes the form ofjoining two or more offenses in
the same count ofan indictment. -Also termed double
pleading. Cf. alternative pleading under PLEADING (2);
double plea under PLEA (3). (Cases: Federal Civil Pro
cedure C=>675; Indictment and Information
Pleading
duplum (d[y]oo-pl~m). [Latin] Roman & civil law. Double
the price of something; esp., a measure of damages
equal to double a thing's value . This measure was
used for certain delicts. Cf. SIMPLUM.
duply. See DUPLICATIO (1).
durable goods. See GOODS.
durable lease. See LEASE.
durable power ofattorney. See POWER OF ATTORNEY.
durables. See durable goods under GOODS.
durante (d[y]~-ran-tee). [Law Latin] While; during, as
in durante minore aetate ("durin minority"), durante
viduitate ("during widowho , durante virginitate
("during virginity"), and durante vita ("during life").
The term was often used in conveyancing.
durante absentia (d(y]~-ran-tee ab-sen-shee-<'l). [Law
Latin] During absence. This term referred to the
administration ofan estate while the executor was out
of the county or otherwise absent. During the execu
tor's absence, the administration sometimes contin
ued because a delay until the executor's return would
impair the estate settlement.
durante bene placito (d[y]<'l-ran-tee bee-nee plas-~-toh).
[Law Latin] During good pleasure . This phrase was
used in the royal writ granting tenure durante bene
placito to the king' judges. durante furore (d[y]<'l-ran-tee fyuu-ror-ee). [Law Latin]
Hist. While the insanity endures. _ The phrase appeared
in reference to the rule prohibiting the state from pros
ecuting an insane person. Ihe state could, however,
prosecute the person once the insanity ended.
duration. (14c) 1. The length of time something lasts
<the duration ofthe lawsuit>.
duration ofinterest. The length of time a property
interest lasts.
duration oftrust. The length of time a trust exists.
[Cases: Trusts C=>60.J
2. A length of time; a continuance in time <an hour's
duration>.
durational-residency requirement. (1970) 1he require
ment that one be a state resident for a certain time, such
as one year, as a precondition to the exercise ofa sped
fied right or privilege. -When applied to voting, this
requirement has been held to be an unconstitutional
denial of equal protection because it burdens voting
rights and impairs the fundamental personal right of
travel.
Duration Directive. See DIRECTIVE HARMONIZING THE
TERM OF COPYRIGHT AND CERTAIN RELATED RIGHTS.
Duren test. (1980) Constitutional law. A test to determine
whether a jury's composition violates the fair-cross
section requirement and a criminal defendant's Sixth
Amendment right to an impartial jury. Under the
test, a constitutional violation occurs if(1) a distinctive
group is not fairly and reasonably represented in the
jury pool in relation to its population in the community,
(2) the underrepresentation is the result of a systematic
exclusion ofthe group from the jury-selection process,
and (3) the government cannot reasonably justify the
discrepancy. Duren v. Missouri, 439 U.S. 357, 99 S.O.
664 (1979). See FAIR-CROSS-SECTION REQUIREMENT;
STATISTICAL-DECISION THEORY; ABSOLUTE DISPARITY;
COMPARATIVE DISPARITY. (Cases: JuryC=>33(1.1).J
duress (d[y]uu-res). (13c) 1. Strictly, the physical con
finement of a person or the detention of a contracting
party's property . In the field of torts, duress is con
sidered a species of fraud in which compulSion takes
the place of deceit in causing injury.
"Duress consists in actual or threatened violence or impris
onment; the subject of it must be the contracting party
himself, or his wife, parent, or child; and it must be inflicted
or threatened by the other party to the contract, or else
by one acting with his knowledge and for his advantage."
William R. Anson, PrinCiples of the Law ofContract 261-62
(Arthur l. Corbin ed., 3d Am. ed. 1919).
"Few areas of the law of contracts have undergone such
radical changes in the nineteenth and twentieth centuries
as has the law governing duress. In Blackstone's time relief
from an agreement on grounds of duress was a possibility
only if it was coerced by actual (not threatened) imprison
ment or fear of loss of life or limb. 'A fear of battery ... is no
duress; neither is the fear of having one's house burned, or
one's goods taken away or destroyed': he wrote, 'because
in these cases, should the threat be performed, a man may
have satisfaction by recovering equivalent damages: but
no SUitable atonement can be made for the loss of life, or
limb: Today the general rule is that any wrongful act or
579
threat which overcomes the free will of a party constitutes
duress. This simple statement of the law conceals a number
of questions, particularly as to the meaning of 'free will'
and 'wrongful.'" John D. Calamari &Joseph M. Perillo, The
Law ofContracts 9-2, at 337 (3d ed. 1987).
2. Broadly, a threat of harm made to compel a person
to do something against his or her will or judgment;
esp., a wrongful threat made by one person to compel
a manifestation of seeming assent by another person
to a transaction without real volition . A marriage
that is induced by duress is generally voidable. 3. The
use or threatened use of unlawful force -usu. that a
reasonable person cannot resist -to compel someone
to commh an unlawful act . Duress is a recognized
defense to a crime, contractual breach, or tort. See
Model Penal Code 2.09. See COERCION.
"[In most states,] the age-old rule of duress -that the
dOing of a prohibited act is not a crime if reasonably
believed to be necessary to save from death or great bodily
injury -together with the equally ancient exception in the
form of the 'inexcusable choice,' are as firm today as ever
except for the realization that they cover only part of the
field." Rollin M. Perkins & Ronald N. Boyce, Criminal Law
1064 (3d ed. 1982).
"Among defenses, necessity needs to be distinguished
from duress. Necessity is generally regarded as a justifi
cation, while duress is held to be an excuse. This means
that the person who acts under necessity chooses to act
in a way that the law Ultimately approves. The person who
acts under duress acts in a way that the law disapproves
and seeks to discourage, but he acts under circumstances
which make conviction and punishment inappropriate and
unfair. This is so because to act under duress is to act under
pressures that a person of reasonable firmness would not
be able to resist. Thus, both the theory of necessity and
the theory of duress refer to the pressure of exigent and
extraordinary situations, but they do so in different ways."
Thomas Morawetz, "Necessity," in 3 Encyclopedia ofCrime
and justice 957, 959 (Sanford H. Kadish ed., 1983).
duress ofcircumstances. See NECESSITY (1).
duress ofgoods. 1. The act ofseizing personal property
by force, or withholding it from an entitled party, and
then extorting something as the condition for its
release. 2. Demanding and taking personal property
under color oflegal authority that either is void or for
some other reason does not justify the demand.
duress ofimprisonment. The wrongful confining of a
person to force the person to do something.
duress of the person. Compulsion of a person by
imprisonment, by threat, or by a show of force that
cannot be resisted |
person. Compulsion of a person by
imprisonment, by threat, or by a show of force that
cannot be resisted.
duress per minas (par mI-nas). [Law Latin) Duress by
threat ofloss of life, loss of limb, mayhem, or other
harm to a person.
"Duress per minas is either for fear of loss of life, or else for
fear of mayhem, or loss of limb. And this fear must be upon
sufficient reason .... A fear of battery, or being beaten,
though never so well grounded, is no duress; neither is the
fear of having one's house burned, or one's goods taken
away and destroyed; because in these cases, should the
threat be performed, a man may have satisfaction by recov
ering equivalent damages: but no suitable atonement can
be made for the loss of life, or limb." 1 William Blackstone,
Commentaries on the Laws of England 127 (1765). Dutch-auction tender method
"Duress per minas is a very rare defence; so rare that Sir
James Stephen, in his long forensic experience, never saw
a case in which it was raised. It has, however, been thought
that threats of the immediate infliction of death, or even of
grievous bodily harm, will excuse some crimes that have
been committed under the influence of such threats." J.w.
Cecil Turner, Kenny's Outlines of Criminal Law 58 (16th
ed. 1952).
economic duress. (1929) An unlawful coercion to
perform by threatening financial injury at a time
when one cannot exercise free will. -Also termed
business compulsion.
"Courts have shown a willingness to recognize the concept
of 'economic duress.' For instance it has been held that
a defence on these grounds may be available to the pur
chaser of a ship from a shipbuilder, if the latter extracts a
promise of extra payment as a condition of delivery of the
ship." P.S. Atiyah, An Introduction to the Law of Contract
230 (3d ed. 1981).
moral duress. An unlawful coercion to perform by
unduly influencing or taking advantage of the weak
financial position ofanother. Moral duress focuses
on the inequities of a situation while economic duress
focuses on the lack of will or capacity of the person
being influenced.
Durham (dilr-am). One ofthe three remaining county
palatines in England, the others being Chester and Lan
caster. Its jurisdiction was vested in the Bishop of
Durham until the statute 6 & 7 WilL 4, ch. 19 vested it
as a separate franchise and royalty in the Crown. The
jurisdiction of the Durham Court of Pleas was trans
ferred to the Supreme Court of Judicature by the Judi
cature Act of 1873, but Durham continued to maintain
a Chancery Court according to the Palatine Court of
Durham Act of 1889. See COUNTY PALATINE.
Durham rule. Criminal law. A test for the insanity
defense, holding that a defendant is not criminally
responsible for an act that was the product of mental
disease or defect (Durham v. United States, 214 P.2d
862 (D.C. Cir. 1954). Formerly used in New Hamp
shire and the District of Columbia, the Durham rule
has been criticized as being too broad and is no longer
accepted in any American jurisdiction. Also termed
product test. See INSANITY DEFENSE. [Cases: Criminal
Law~48.l
Durrett rule. Bankruptcy. 1he principle that a transfer of
property in exchange for less than 70% of the property's
value should be invalidated as a preferential transfer.
Durrett v. Washington Nat'l Ins. Co., 621 F.2d 201 (5th
Cir. 1980); 11 USCA 548. This rule has been applied
most frequently to foreclosure sales. But it has essen
tially been overruled by the U.S. Supreme Court, which
has held that, at least for mortgage foreclosure sales,
the price received at a regularly conducted, noncol
lusive sale represents a reasonably equivalent value of
the property, and the transfer is presumed valid. BFP
v. Resolution Trust Corp., 511 U.S. 531, 114 S.Ct. 1757
(1994). [Cases: Bankruptcy C---::::> 2650.)
Dutch auction. See AUCTION.
Dutch-auction tender method. See Dutch auction (3)
under AUCTION.
580 Dutch lottery
Dutch lottery. See LOTTERY.
dutiable (d[y]oo-tee-Cl-bClI), adj. Subject to a duty
<dutiable goods>.
duty. (Be) 1. A legal obligation that is owed or due to
another and that needs to be satisfied; an obligation for
which somebody else has a corresponding right.
"There is a duty if the court says there is a duty; the law, like
the Constitution, is what we make it. Duty is only a word
with which we state our conclusion that there is or is not to
be liability: it necessarily begs the essential question ....
[M)any factors interplay: the hand of history, our ideas of
morals and justice, the convenience of administration of
the rule, and our social ideas as to where loss should fall."
William L. Prosser, Paisgraf Revisited, 52 Mich. L. Rev. 1,
15 (1953).
"A classic English definition [of duty] from the late nine
teenth century holds that, when circumstances place one
individual in such a position with regard to another that
thinking persons of ordinary sense would recognize the
danger of injury to the other if ordinary skill and care were
not used, a duty arises to use ordinary skill and care to
avoid the injury. A much quoted American judicial defi
nition of duty emphasizes its relational aspects, with a
focus on the foreseeability of risk to those 'Within the
range of apprehension.' At about the same time, one of
the most creative of American law teachers defined duty as
a complex of factors, including administrative, economic,
and moral ones, to be applied by judges in their analyses
of the legal strength of personal injury cases." Marshall S.
Shapo, The Duty to Actxi-xii (1977).
"While courts frequently say that establishing 'duty' is
the first prerequisite in an individual tort case, courts
commonly go on to say that there is a 'general duty' to
'exercise reasonable care,' to avoid subjecting others to
'an unreasonable risk of harm,' or to comply with the
'legal standard of reasonable conduct.' Though cast in
the language of duty, these formulations merely give the
expression to the point that negligence is the standard of
liability." Restatement (Third) of Torts 6 cmt. a (Discus
sion Draft 1999).
absolute duty. 1. A duty to which no corresponding
right attaches . According to John Austin's legal phi
losophy, there are four kinds of absolute duties: (1)
duties not regarding persons (such as those owed to
God and to lower animals), (2) duties owed to persons
indefinitely (Le., to the community as a whole), (3)
self-regarding duties (such as the duty not to commit
suicide), and (4) duties owed to the sovereign. 1 John
Austin, The Providence ofJurisprudence Determined
400 (Sarah Austin ed., 2d ed. 1861). 2. A duty as to
which nothing but lapse of time remains necessary
to make immediate performance by the promisor
obligatory.
active duty. See positive duty.
affirmative duty. A duty to take a positive step to do
something.
conditional duty. A duty that is conditioned on the
occurrence of an event other than the lapse oftime.
contractual duty. 1. A duty ariSing under a particular
contract. [Cases: Contracts C:>1.) 2. A duty imposed
by the law ofcontracts.
delegable duty. (1908) A duty that may be transferred
to another to perform. See ASSIGNMENT. duty to act. (17c) A duty to take some action to prevent
harm to another, and for the failure of which one may
be liable depending on the relationship ofthe parties
and the circumstances. [Cases: Negligence ~210.1
duty to defend. Insurance. The obligation ofan insurer
to provide an insured with a legal defense against
claims of liability, within the terms of the policy. _
The duty to defend applies if the terms of the policy
and the facts of the claim allow an ambiguity about
whether the insurer will have a duty to indemnify the
insured. It does not apply if no such ambiguity exists.
[Cases: Insurance ~2911.)
duty to indemnify. An obligation to compensate
another for the other's loss . The duty arises under
the terms of an agreement, which governs the extent
of the duty. An insurance policy is fundamentally
an indemnification agreement, but the duty is often
made a part of other contracts as well. [Cases: Indem
nity~25, 31-39; Insurance ~2092, 2268.]
duty to settle. Insurance. The obligation of an insurer
to negotiate and settle third-party claims against an
insured in good faith.
duty to speak. (16c) A requirement (not strictly a duty)
to say something to correct another's false impres
sion. For example, a duty to speak may arise when
a person has, during the course of negotiations, said
something that was true at the time but that has
ceased to be true before the contract is Signed. [Cases:
Fraud
equitable duty. A duty enforceable in a court of
chancery or in a court having the powers of a court
in chancery.
imperfect duty. 1. A duty that, though recognized by
law, is not enforceable against the person who owes
it. 2. A duty that is not fit for enforcement but should
be left to the discretion and conscience ofthe person
whose duty it is.
implied duty ofcooperation. A duty existing in every
contract, obligating each party to cooperate with, or
at least not to wrongfully hinder, the other party's
performance . Breach of this implied duty excuses
performance. [Cases: Contracts ~168.)
legal duty. (17c) A duty arising by contract or by opera
tion of law; an obligation the breach ofwhich would
give a legal remedy <the legal duty of parents to
support their children>.
moral duty. A duty the breach of which would be a
moral wrong. Also termed natural duty.
negative duty. A duty that forbids someone to do some
thing; a duty that requires someone to abstain from
something. -Also termed passive duty.
noncontractual duty. A duty that arises independently
of any contract.
nondelegable duty (non-del-;J-g;J-bCll). (1902) 1. Con
tracts. A duty that cannot be delegated by a contract
ing party to a third party. -Ifa contracting party
purports to delegate the duty, the other party can
rightfully refuse to accept performance by the third
party. [Cases: Assignments 19; Principal and
Agent C=>S4.]2. Torts. A duty that may be delegated to
an independent contractor by a principal, who retains
primary (as opposed to vicarious) responsibility if
the duty is not properly performed . For example, a
landlord's duty to maintain common areas, though
delegated to a service contractor, remains the land
lord's responsibility ifsomeone is injured by improper
maintenance. [Cases: Labor and Employment c=>
2848,3133; Landlord and Tenant C=>162; Negligence
C=> 1204(1).]
passive duty. See negative duty.
perfect duty. A duty that is not merely recognized by
the law but is actually enforceable.
positive duty. A duty that requires a person either to
do some definite action or to engage in a continued
course of action. Also termed active duty.
preexisting duty. (1823) A duty that one is already
legally bound to perform. See PREEXISTING-DUTY
RULE.
quasi-judicial duty. A discretionary judicial duty that
a nonjudicial officer may perform under some cir
cumstances.
2. Any action, performance, task, or observance owed
by a person in an official or fiduciary capacity.
discretionary duty. A duty that allows a person to
exercise judgment and choose to perform or not
perform. Cf. ministerial duty.
duty ofcandor (kan-d<lr). A duty to disclose material
facts; esp., a duty of a director seeking shareholder
approval of a transaction to disclose to the sharehold
ers all known material facts about the transaction.
[Cases: Corporations C=>307, 312(5).]
duty ofcandor andgood faith. Patents. A patent appJi
cant's responsibility to disclose to the U.S. Patent and
Trademark Office all known information relevant to
the invention's patentability, esp. prior art, novelty,
and embodiment. If an applicant fails to be candid
in disclosing all relevant information, the PTO may
reject the application. If the patent is issued and
undisclosed but relevant information is discovered
later, the patent may be invalidated, and the applicant
charged with fraud on the PTO, even if the undis
closed information might not have barred the patent's
issuance. 37 CFR 1.56. [Cases; Patents C=>97.]
duty offair representation. A labor union's duty to
represent its member employees fairly, honestly, and
in good faith. [Cases: Labor and Employment
l207.]
duty ofgood faith and fair dealing. A duty that is
implied in some contractual relationships, requir
ing the parties to deal with each other fairly, so that
neither prohibits the other from realizing the agree
ment's benefits. See GOOD FAITH; BAD FAITH. [Cases:
Contracts C'~:, 168.] duty ofloyalty. A person's duty not to engage in self
dealing or otherwise use his or her position to further
personal interests rather than those of the beneficiary.
For example, directors have a duty not to engage in
self-dealing to further |
rather than those of the beneficiary.
For example, directors have a duty not to engage in
self-dealing to further their own personal interests
rather than the interests of the corporation.
fiduciary duty (fi-d[y]oo-shee-er-ee). A duty of utmost
good faith, trust, confidence, and candor owed by a
fiduciary (such as a lawyer or corporate officer) to the
beneficiary (such as a lawyer's client or a shareholder);
a duty to act with the highest degree of honesty and
loyalty toward another person and in the best interests
ofthe other person (such as the duty that one partner
owes to another). See FIDUCIARy;fiduciary relation
ship under RELATIONSHIP. [Cases: Fraud C=>7.]
ministerial duty. A duty that requires neither the
exercise of official discretion nor judgment. Cf. dis
cretionary duty.
proprietary duty. A duty owed by a governmental
entity while engaged in a proprietary, rather than
governmental, activity. [Cases; Municipal Corpora
tions (;::~") 725.]
3. Torts. A legal relationship arising from a standard of
care, the violation ofwhich subjects the actor to liabil
ity. Also termed duty ofeare. [Cases: Negligence
210.] 4. A tax imposed on a commodity or transac
tion, esp. on imports; IMPOST. A duty in this sense is
imposed on things, not persons.
account duty. An inheritance tax payable by a dece
dent's beneficiary.
ad valorem duty. A tax calculated as a percentage ofan
imported product's value. Cf. compound duty; specific
duty.
antidumping duty. See antidumping tariff under
TARIFF (3).
compound duty. A tax based on a combination of
imported goods' weight, volume, or item count, plus a
percentage of their value. Cf ad valorem duty; specific
duty.
countervailing duty. A tax imposed on manufactur
ers of imported goods to protect domestic industry
by offsetting subsidies given by foreign governments
to those manufacturers. [Cases; Customs Duties
21.5.]
customs duty. A tax levied on an imported or exported
commodity; esp., the federal tax levied on goods
shipped into the United States.
death duty. An estate tax or inheritance tax. Also
termed estate duty.
duty ofdetraction. A tax on property acquired by suc
cession or will and then removed from one state to
another.
estate duty. Hist. English law. A tax imposed on the
principal value of all property that passed on death.
Estate duties were first imposed in 1889. A capital
transfer tax replaced it in 1975. Since 1986, an inher
itance tax has applied instead, with exceptions for
582 duty-bound
certain transactions entered into before then. See
death duty.
import duty. A tax on the importation ofa product.
Also termed duty on import.
legacy duty. See legacy tax under TAX.
probate duty. A tax assessed by the government either
on every will admitted to probate or on the gross
value of the decedent's personal property.
specific duty. A tax calculated on an import's weight,
volume, or item count. Cf. ad valorem duty; compound
duty.
succession duty. A tax payable by the successor to
real property, esp. when the successor has not pur
chased the property for value but has succeeded to
the property in some other way.
tonnage duty. A charge imposed on a commercial
vessel for entering, remaining in, or leaving a port.,
usu. assessed on the basis of the ship's weight .
U.S. Canst. art. I, 10, cl. 3 prohibits the states from
levying tonnage duties. -Also termed tonnage tax;
tonnage. [Cases: Commerce ~78;Shipping ~7.)
unascertained duty. A preliminary, estimated payment
to a customs collector of the duty that will be due
on final accounting . An importer pays this duty to
receive permission to land and sell the goods.
duty-bound, adj. Required by legal or moral obligation
to do something <Jones is duty-bound to deliver the
goods by Friday>.
duty-free, adj. Ofor relating to products offoreign origin
that are not subject to import or export taxes.
duty judge. See JUDGE.
duty ofcare. See DUTY (3).
duty of the flag. Hist. A maritime ceremony by which
a foreign vessel struck her flag and lowered her topsail
upon meeting the British flag . The ceremony was an
acknowledgment of British sovereignty over the British
seas.
duty of tonnage (t;m-ij). See tonnage duty under DUTY
(4).
duty ofwater. The amount ofwater necessary to irrigate
a given tract.
duty on import. See import duty under DUTY (4).
duty-to-defend clause. Insurance. A liability-insur
ance provision obligating the insurer to take over the
defense ofany lawsuit brought by a third party against
the insured on a claim that falls within the policy's
coverage. See duty to defend under DUTY (1). [Cases:
Insurance ~29ll.)
duty to mitigate (mit-i-gayt). (1891) A nonbreaching
party's or tort victim's duty to make reasonable efforts
to limit losses resulting from the other party's breach
or tort. Not doing so precludes the party from col
lecting damages that might have been avoided. See
MITIGATION-OF-DAMAGES DOCTRINE. [Cases: Damages
~62.) duumviri (d[y]oo-;Jm-v;J-n), n. pl. [fr. Latin due "two"
+ viri "men") 1. Roman law. Magistrates elected
or appointed in pairs to hold an office or perform a
function.
duumviri municipales (d[y]oo-;Jm-v;J-n myoo-nis-;J
pay-leez). [Latin) Two judicial magistrates annually
elected in towns and colonies.
duumviri navales (d[y]oo-;Jm-v;J-n n;J-vay-leez).
[Latin] Two officers appointed to man, equip, and
refit the navy.
2. Two peers in authority. -Also termed duoviri.
dux (d;Jks), n. [fr. Latin ducere "to lead"] 1. Roman
law. An army commander. 2. Roman law. A military
governor ofa province . This term was eventually used
also as a title of distinction. 3. Hist. Duke; a title of
nobility. See DUKE.
DWAI. abbr. Driving while ability-impaired. See
DRIVING UNDER THE INFLUENCE.
dwell, vb. (l3c) 1. To remain; to linger <the case dwelled
in her memory>. 2. To reside in a place permanently
or for some period <he dwelled in California for nine
years>.
dwelling defense. See CASTLE DOCTRINE.
dwelling-house. (lSc) 1. The house or other structure in
which a person lives; a residence or abode. 2. Real estate.
The house and all buildings attached to or connected
with the house. 3. Criminal law. A building, a part of
a building, a tent, a mobile home, or another enclosed
space that is used or intended for use as a human habi
tation. The term has referred to connected buildings
in the same curtilage but now typically includes only
the structures connected either directly with the house
or by an enclosed passageway. -Often shortened to
dwelling. -Also termed (archaically) mansion house;
(more broadly) dwelling place. [Cases: Burglary ~
4.]
quasi-dwelling-house. Hist. Any outbuilding, such as
a barn, that is in proximity to the building used as a
residence. See BURGLARY (1).
"A 'dwelling house' or 'dwelling' has been defined in con
nection with the crime of arson as any house intended to be
occupied as a residence, or an enclosed space, permanent
or temporary, in which human beings usually stay, lodge,
or reside. If a building is not used exclusively as a dwelling,
it is characterized as a dwelling if there is internal commu
nication between the two parts of the building. Dwellings
include mobile homes and a boat, if the person resides
on it." 5 Am. Jur. 2d Arson and Related Offenses 13, at
789 (1995).
DWI. abbr. DRIVING WHILE INTOXICATED.
DWOP (dee-wop or doo-wop). abbr. See dismissal for
want ofprosecution under DISMISSAL (1).
DWOP docket. See DOCKET (2).
dyarchy (dI-ahr-kee), n. [fr. Greek dy "two" + archein
"rule"] A government jointly ruled by two people,
such as William and Mary ofEngland. -Also termed
diarchy.
583
"Dyarchy. A term applied by Mommsen to the Roman prin
cipate ... a period in which he held that sovereignty was
shared between the princes and the senate. The term has
also been given to a system of government, promoted as a
constitutional reform in India by Montagu and Chelmsford
and introduced by the Government of India Act, 1919. It
marked the introduction of democracy into the executive of
the British administration of India by dividing the provincial
executives into authoritarian and popularly responsible
sections composed respectively of councillors appointed
by the Crown and ministers appointed by the governor and
responsible to the provincial legislative councils .... The
system ended when full provincial autonomy was granted
in 1935." David M. Walker, The Oxford Companion to Law
386 (1980).
dyathanasia, (dI-ath-a-nay-zha), n. 1be act of permit
ting death to occur naturally by withholding, termi
nating, or not offering life-prolonging treatments or
intervention. Also termed passive mercy killing. See
EUTHANASIA.
Dyer Act. A federal law, enacted in 1919, making it
unlawful either (1) to transport a stolen motor vehicle
across state lines, knowing it to be stolen, or (2) to
receive, conceal, or sell such a vehicle, knowing it dyvour
to be stolen. 18 USC A 2311-2313. -Also termed
National Motor Vehicle Theft Act. [Cases: Automobiles
<>341.]
dyet. See DIET.
dying declaration. See DECLARATION (6).
dying without issue. See FAILURE OF ISSUE.
dynamite charge. See ALLEN CHARGE.
dynamite instruction. See ALLEN CHARGE.
dynasty. 1. A powerful family line that continues for a
long time <an Egyptian dynasty>. 2. A powerful group
ofindividuals who control a particular industry or field
and who control their successors <a literary dynasty>
<a banking dynasty>.
dynasty trust. See TRUST.
dysnomy (dis-nd-mee), n. [fro Greek dys "bad" +
nomos "law"] The enactment of bad legislation. Cf.
EUONOMY.
dyvour (dI-var). Scots law. A person who is heavily in
debt or bankrupt.
E
eadem persona cum defuncto (ee-ay-d;)m p;)r-soh-n;)
k;)m di-bngk-toh). [Law Latin] Hist. The same person
as the decedent. An heir having full title to the dece
dent's property was legally viewed to be the same
person as the decedent.
ea intentione (ee-;) in-ten-shee-oh-nee). [Latin] With
that intent.
EAJA. abbr. EQUAL ACCESS TO JUSTICE ACT.
E&O insurance. See errors-and-omissions insurance
under INSURANCE.
earl. (12c) A title of nobility, formerly the highest in
England but now the third highest, ranking between a
marquis and a viscount . This title corresponds with
the French comte and the German graf Originating
with the Saxons, this title is the most ancient of the
English peerage. William the Conqueror first made the
title hereditary, giving it in fee to his nobles. No ter
ritorial, private, or judicial rights now accompany the
title; it merely confers nobility and a hereditary seat in
the House of Lords.
earldom. 1he dignity or jurisdiction of an earL. Only
the dignity remains now, the jurisdiction haVing been
given over to the sheriff. See DIGNITY.
earles-penny. Hist. Money given in part payment;
EARNEST. -Also termed earl's penny.
Earl Marshal of England. A great officer of state, who
historically had jurisdiction over several courts, includ
ing the court of chivalry and the court ofhonor . Under
this office is the herald's office, or college of arms. The
Earl Marshal was also a judge ofthe Marshalsea court,
now abolished. This office is quite ancient. Since 1672,
it has been hereditary in the family of Howards, Dukes
of Norfolk. Often shortened to Earl Marshal.
earl's penny. See EARLES-PENNY.
early voting. See VOTING.
earmark, n. (16c) 1. Originally, a mark upon the ear
a mode of marking sheep and other animals. [Cases:
Animals
"When nowadays we say that 'money has no ear-mark,'
we are alluding to a practice which in all probability played
a large part in anCient law. Cattle were ear-marked or
branded, and this enabled their owner to swear that they
were his in whosesoever hands he might find them. The
legal supposition is, not that one ox is indistinguishable
from another ox, but that all oxen, or all oxen of a certain
large class, are equivalent. The possibility of using them as
money has rested on this supposition." 2 Frederick Pollock
& Frederic William Maitland, History ofEnglish Law Before
the Time of Edward 1151-52 (2d ed. 1899).
2. A mark put on something (such as a coin) to distin |
-52 (2d ed. 1899).
2. A mark put on something (such as a coin) to distin
guish it from another. earmark, vb. 1. To mark with an earmark. 2. To set aside
for a specific purpose or recipient.
earmarking doctrine. Bankruptcy. An equitable prin
ciple that when a new lender makes a loan to enable a
debtor to payoff a specified creditor, the funds are spe
cifically set aside for that creditor so that, if the debtor
lacks control over the disposition of the funds, they do
not become part ofthe debtor's estate and thus subject
to a preference. lCases: Bankruptcy (::::J261O.]
earn, vb. (bef. 12c) 1. To acquire by labor, service, or
performance. 2. To do something that entitles one to a
reward or result, whether it is received or not.
earned income. See INCOME.
earned-income credit. See TAX CREDIT.
earned land. See LA:ND.
earned premium. See PREMIUM (1).
earned surplus. See retained earnings under EARNINGS.
earned time. See TIME.
earner. 1. One who produces income through personal
efforts or property or both. 2. Property or an asset that
produces income for its owner.
earnest, n. (13c) 1. A nominal payment or token act that
serves as a pledge or a sign of good faith, esp. as the
partial purchase price ofproperty . Though not legally
necessary, an earnest may help the parties come to an
agreement. 2. EARNEST MONEY.
earnest money. (l6c) A deposit paid (often in escrow)
by a prospective buyer (esp. of real estate) to show a
good-faith intention to complete the transaction, and
ordinarily forfeited if the buyer defaults . Although
earnest money has traditionally been a nominal sum
(such as a nickel or a dollar) used in the sale ofgoods,
it is not a mere token in the real-estate context: it is
generally a percentage of the purchase price and may
be a substantial sum. -Also termed earnest; bargain
money; caution money; hand money. Cf. BINDER (2);
down payment under PAYMENT. [Cases: Vendor and
Purchaser C--Y69.1, 182.]
"The amount of earnest money deposited rarely exceeds 10
percent of the purchase price, and its primary purpose is to
serve as a source of payment of damages should the buyer
default. Earnest money is not essential to make a purchase
agreement binding if the buyer's and seller's exchange
of mutual promises of performance (that is, the buyer's
promise to purchase and the seller's promise to sell at a
specified price and terms) constitutes the consideration for
the contract." John W. Reilly. The Language ofReal Estate
131 (4th ed. 1993).
earnest-penny. See GOo's PENNY.
earning asset. See ASSET.
earning capacity. (1872) A person's ability or power to
earn money, given the person's talent, skills, training,
585
and experience . Earning capacity is one element con
sidered when measuring the damages recoverable in
a personal-injury lawsuit. And in family law, earning
capacity is considered when awarding child support
and spousal maintenance (or alimony) and in dividing
property between spouses upon divorce. -Also termed
earning power. See LOST EARNING CAPACITY.
earnings. (16c) Revenue gained from labor or services,
from the investment of capital, or from assets. See
INCOME.
appropriated retained earnings. Retained earnings
that a company's board deSignates for a distinct use,
and that are therefore unavailable to pay dividends or
for other uses. Also termed appropriated surplus;
surplus revenue; suspense reserve.
earnings before interest and taxes. Corporations. A
company's income calculated without deductions for
interest expenses and taxes, used as a measure ofthe
company's ability to generate cash flow from ongoing
operations.- Abbr. EBIT.
earnings before interest, taxes, and depreciation. Cor
porations. A company's income without deductions
for interest expenses, taxes, depreciation expenses,
or amortization expenses, used as an indicator of a
company's profitabilty and ability to service its debt.
-Abbr. EBITDA.
future earnings. See lost earnings.
gross earnings. See gross income under INCOME.
lost earnings. Wages, salary, or other income that a
person could have earned if he or she had not lost
a job, suffered a disabling injury, or died. Lost
earnings are typically awarded as damages in per
sonal-injury and wrongful-termination cases. There
can be past lost earnings and future lost earnings.
Both are subsets ofthis category, though legal writers
sometimes loosely use future earnings as a synonym
for lost earnings. Cf. LOST EARNING CAPACITY. [Cases:
Damages 037.]
net earnings. See net income under INCOME.
normalized earnings. Corporations. Earnings adjusted
for inflation and to remove elements that are extraor
dinary, nonrecurring, nonoperating, or otherwise
unusuaL
ongoing earnings. See operating earnings.
operating earnings. Business income calculated in
violation ofgenerally accepted accounting principles
by including income items and excluding various
business expenses . Many companies use operat
ing earnings to favorably skew their price-earnings
(PIE) ratios. Because the rationales for the underly
i!1g calculations vary from company to company, and
trom period to period within a company, operating
earnings are almost always artificially inflated and
unreliable. The term operating earnings is meaningless
under generally accepted accounting principles.
Also termed pro forma earnings; economic earnings; easement
core earnings; ongoing earnings; earnings excluding
special items. See PRICE-EARNINGS RATIO.
pretax earnings. Net earnings before income taxes.
pro forma earnings. See operating earnings.
real earnings. Earnings that are adjusted for inflation
so that they reflect actual purchasing power.
retained earnings. A corporation's accumulated
income after dividends have been distributed. -Also
termed earned surplus; undistributed profit. [Cases:
Corporations (;:::::> 151.J
surplus earnings. The excess of corporate assets over
liabilities within a given period, usu. a year. [Cases:
Corporations <.':;=) 152.J
earnings and profits. Corporations. In corporate
taxation, the measure of a corporation's economic
capacity to make a shareholder distribution that is not
a return ofcapital. The distribution will be dividend
income to the shareholders to the extent ofthe corpo
ration's current and accumulated earnings and profits.
Cf. accumulated-earnings tax under TAX; accumulated
taxable income under INCOME. [Cases: Internal Revenue
03830.1-3845.]
earnings before interest and taxes. See EARNINGS.
earnings before interest, taxes, and depredation. See
EARNINGS.
earnings excluding special items. See operating earnings
under EARNINGS.
earnings per share. Corporations. A measure of cor
porate value by which the corporation's net income
is divided by the number of outstanding shares of
common stock. Investors benefit from calculating a
corporation's earnings per share, because it helps the
investors determine the fair market value of the cor
poration's stock. Abbr. EPS.
fully diluted earnings per share. A corporation's net
income -assuming that all convertible securities
had been transferred to common equity and all stock
options had been exercised -divided bv the number
of shares of the corporation's outstanding common
stock.
earnings-price ratio. See earnings yield under YIELD.
earnings report. See INCOME STATEMENT.
earnings yield. See YIELD.
earnout agreement. (1977) An agreement for the sale
of a business whereby the buyer first pays an agreed
amount up front, leaVing the final purchase price to be
determined by the business's future profits . The seller
usu. helps manage the business for a period after the
sale. -Sometimes shortened to earnout.
earwitness. (l6c) A witness who testifies about some
thing that he or she heard but did not see. Cf. EYEWIT
NESS.
easement (eez-m;>nt). (l4c) An interest in land owned by
another person, consisting in the right to use or control
the land, or an area above or below it, for a specific
586 easement
limited purpose (such as to cross it for access to a public
road). The land benefiting from an easement is called
the dominant estate; the land burdened by an easement
is called the servient estate. Unlike a lease or license,
an easement may last forever, but it does not give the
holder the right to possess, take from, improve, or sell
the land. The primary recognized easements are (1) a
right-of-way, (2) a right ofentry for any purpose relating
to the dominant estate, (3) a right to the support ofland
and buildings, (4) a right of light and air, (5) a right to
water, (6) a right to do some act that would otherwise
amount to a nuisance, and (7) a right to place or keep
something on the servient estate. See SERVITUDE (1). Cf.
PROFIT APRENDRE. -Also termed private right-of-way.
[Cases: Easements C=:> 1.]
access easement. (1933) An easement allowing one or
more persons to travel across another's land to get to a
nearby location, such as a road . The access easement
is a common type of easement by necessity. -Also
termed easement ofaccess; easement ofway; easement
ofpassage.
adverse easement. See prescriptive easement.
affirmative easement. (1881) An easement that forces
the servient -estate owner to permit certain actions by
the easement holder, such as discharging water onto
the servient estate. -Also termed positive easement.
Cf. negative easement.
"Positive easements give rights of entry upon the land of
another, not amounting to profits, to enable something to
be done on that land. Some are commonplace, examples
being rights of way across the land of another and rights
to discharge water on to the land of another. Others are
more rare, such as the right to occupy a pew in a church,
the right to use a kitchen situated on the land of another
for the purpose of washing and drying clothes, and the
right to use a toilet situated on the land of another." Peter
Butt, Land Law 305 (2d ed. 1988).
apparent easement. (1851) A visually evident easement,
such as a paved trail or a sidewalk. [Cases: Easements
C=:>22.]
appendant easement. See easement appurtenant.
appurtenant easement. See easement appurtenant.
avigational easement. An easement permitting unim
peded aircraft flights over the servient estate. -Also
termed avigation easement; aviation easement;flight
easement; navigation easement. [Cases: Aviation C=:>
3.]
common easement. (18c) An easement allowing the
servient landowner to share in the benefit of the
easement. -Also termed nonexclusive easement.
[Cases: Easements C=:>38.]
continuous easement. (1863) An easement that may be
enjoyed without a deliberate act by the party claiming
it, such as an easement for drains, sewer pipes, lateral
support ofa wall, or light and air. -Also termed (in
Louisiana) continuous servitude. Cf. discontinuous
easement. [Cases: Easements C=:>38.]
conservation easement. Property. A recorded, perpet
ual, nonpossessory interest in real property held by a government entity or by a qualified nonprofit entity
that imposes restrictions or affirmative obligations
on the property's owner or lessee to retain or protect
natural, scenic, or open-space values ofreal property,
ensure its availability for agricultural, forest, recre
ational, or open-space use, protect natural resources
and habitat, maintain or enhance air or water quality,
or preserve the historical, architectural, archeologi
cal, or cultural aspects of the real property. -Also
termed conservation restriction; conservation servi
tude.
determinable easement. An easement that terminates
on the happening of a specific event.
discontinuous easement. (1867) An easement that
can be enjoyed only if the party claiming it delib
erately acts in some way with regard to the servient
estate. Examples are a right-of-way and the right to
draw water. -Also termed discontinuing easement;
noncontinuous easement; nonapparent easement; (in
Louisiana) discontinuous servitude. Cf. continuous
easement. [Cases: Easements C=:>38.]
easement appurtenant. (18lO) An easement created to
benefit another tract ofland, the use of easement being
incident to the ownership ofthat other tract. -Also
termed appurtenant easement; appendant easement;
pure easement; easement proper. Cf. easement in gross.
[Cases: Easements C=:>3.]
easement by estoppel. (1907) A court-ordered easement
created from a voluntary servitude after a person,
mistakenly believing the servitude to be permanent,
acted in reasonable reliance on the mistaken belief.
[Cases: Estoppel C=:>83(1), 87.]
easement by implication. See implied easement.
easement by necessity. (1865) An easement created by
operation of law because the easement is indispens
able to the reasonable use ofnearby property, such as
an easement connecting a parcel ofland to a road.
Also termed easement of necessity; necessary way.
[Cases: Easements C=:> 18.]
easement by prescription. See prescriptive easement.
easement in gross. (1866) An easement benefiting a
particular person and not a particular piece ofland. |
easement in gross. (1866) An easement benefiting a
particular person and not a particular piece ofland.
The beneficiary need not, and usu. does not, own
any land adjoining the servient estate. Cf. easement
appurtenant. [Cases: Easements C=:>3.]
easement ofaccess. See access easement.
easement ofconvenience. An easement that increases
the facility, comfort, or convenience of enjoying the
dominant estate or some right connected with it.
easement ofnatural support. See lateral support under
SUPPORT (4).
easement ofnecessity. See easement by necessity.
easement ofpassage. See access easement.
easement ofway. See access easement.
easement proper. See easement appurtenant.
587
equitable easement. (1869) 1. An implied easement
created by equity when adjacent lands have been
created out of a larger tract. _ Such an easement is
usu. created to allow implied privileges to continue.
[Cases: Easements <r'-=> 16.) 2. See restrictive covenant
(1) under COVENANT (4).
exclusive easement. An easement that the holder has
the sole right to use. Cf. common easement. [Cases:
Easements C=> 52.]
flight easement. See avigational easement.
floating easement. An easement that, when created, is
not limited to any specific part ofthe servient estate.
[Cases: Easements C=>46.]
flowage easement. A common-law easement that gives
the dominant-estate owner the right to flood a servient
estate, as when land near a dam is flooded to maintain
the dam or to control the water level in a reservoir.
[Cases: Waters and Water Courses C=> 165.]
implied easement. (1867) An easement created by law
after an owner of two parcels ofland uses one parcel
to benefit the other to such a degree that, upon the
sale of the benefited parcel, the purchaser could rea
sonably expect the use to be included in the sale.
Also termed easement by implication, way ofnecessity.
[Cases: Easements C=> 15-19.]
intermittent easement. An easement that is usable or
used only from time to time, not regularly or con
tinuously.
land-conservation easement. Property. An easement
arising from an agreement between a landowner and
a land trust to provide for the protection of the land
in its natural state while perhaps also allowing the
property to be used for agricultural or lOW-impact
recreational activities. _ The easement runs with the
land. Also termed land-conservation agreement;
land-preservation easement.
light-and-air easement. (1940) A negative easement
preventing an adjoining landowner from construct
ing a building that would prevent light or air from
reaching the dominant estate. See negative easement.
Cf. solar easement. [Cases: Easements 11, 19,
45.]
mineral easement. An easement that permits the
holder to enter the property to remove minerals from
it. [Cases: Mines and Minerals C=>55(6).1
navigation easement. I. An easement giving the federal
government the right to regulate navigable waters,
even when the regulation interferes with private water
rights. [Cases: NaVigable Waters C=> 16.] 2. See avi
gational easement.
negative easement. (1861) An easement that prohibits
the servient-estate owner from doing something, such
as building an obstruction. Cf. affirmative easement.
[Cases: Covenants 51(2), 68, 69(2); Easements
C=> 13.J
"Negative easements ... confer no right of entry, but
consist essentially of the right to prevent something being easement
done; examples are the right to the flow of air through
defined aperture, the right to receive light for a building,
the right to the support of a building, and (possibly) the
right to require a neighbouring landowner to repair fences."
Peter Butt, Land Law 305 (2d ed. 1988).
nonapparent easement. See discontinuous easement.
noncontinuous easement. See discontinuous easement.
nonexclusive easement. See common easement.
positive easement. See affirmative easement.
prescriptive easement. (1838) An easement created
from an open, adverse, and continuous use over a
statutory period. -Also termed easement by pre
scription; adverse easement. See ADVERSE POSSESSION.
[Cases: Easements
private easement. An easement whose enjoyment
is restricted to one specific person or a few specific
people. [Cases: Easements C=>52.]
public easement. An easement for the benefit of an
entire community, such as the right to travel down a
street or a sidewalk.
pure easement. See easement appurtenant.
quasi-easement. 1. An easement-like right occur
ring when both tracts ofland are owned by the same
person. - A quasi-easement may become a true
easement if the landowner sells one of the tracts. 2.
An obligation or license that relates to land but that
is not a true easement for example, a landowner's
obligation to maintain the fence between the land
owner's tract and someone else's tract.
reciprocal negative easement. An easement created
when a landowner sells part ofthe land and restricts
the buyer's use of that part, and, in turn, that same
restriction is placed on the part kept by the land
owner. -Such an easement usu. arises when the
original landowner creates a common scheme of
development for smaller tracts that are carved out
ofthe original tract. [Cases: Covenants C=>20; Ease
ments C=> B.]
reserved easement. An easement created by the grantor
of real property to benefit the grantor's retained
property and to burden the granted property. [Cases:
Easements C=> 14.]
secondary easement. An easement that is appurtenant
to the primary or actual easement; the right to do
things that are necessary to fully enjoy the easement
itself. [Cases: Easements C=>38.]
solar easement. (1982) An easement created to protect
the dominant estate's exposure to direct sunlight.
A solar easement is often created to prevent the ser
vient-estate owner from constructing any building
that would cause shadows on the dominant estate,
thus interfering with the use of a solar-energy system.
Cf.light-and-air easement. [Cases: Easements G:J11,
19,45.]
"Solar easements ... remain difficult to describe because
of the relationship of the sun to the earth. Shadow vari
ables include land slope, terrain. solar orientation, latitude,
time of day, and height of potential obstructions. Lawyers,
588 Easter-offerings
engineers, land planners, title companies and others have
expressed concern over the complexity required to write
a solar easement containing highly detailed, technical
information often included in these easements." Sandy F.
Kraemer, Solar Law 42 (l978).
timber easement. An easement that permits the holder
to cut and remove timber from another's property.
Also termed timber rights. [Cases: Logs and Logging
Easter-offerings. Eccles. law. Small sums ofmoney paid
as personal tithes to the parochial clergy by the parish
ioners at Easter. -Under the Recovery ofSmall Tithes
Act (1695), Easter-offerings were recoverable before
justices of the peace. St. 7 & 8 Will. 3, ch. 6. Also
termed Easter-dues.
Easter sittings. English law. A term of court beginning
on April 15 ofeach year and usu. ending on May 8, but
sometimes extended to May 13. -This was known until
1875 as Easter term. Cf. HILARY SITTINGS; MICHAELMAS
SITTINGS; TRINITY SITTINGS.
East Greenwich (eest gren-ich). Rist. The name ofa royal
manor in the county of Kent, England. _ Historically,
this manor was mentioned in royal grants or patents
as descriptive of the tenure of free socage.
East India Company. Rist. The company that was orig
inally established to pursue exclusive trade between
England and India, and that later became more active
in political affairs than in commerce. _ In 1858, the
Government ofIndia Act transferred governance over
the company's territories to the Crown. The company
was dissolved in 1874. St. 21 & 22 Vict., ch. 106.
EAT. abbr. Earnings after taxes.
eat inde sine die (ee-at in-dee sl-nee dI-ee) [Latin] Let
him go thence without day. _ These words were used
on a defendant's acquittal, or when a prisoner was to
be discharged, to signify that the matter be dismissed
without any further judicial proceedings. See GO HENCE
WITHOUT DAY.
eaves-drip. 1. 'The dripping of water from the eaves of
a house onto adjacent land. 2. An easement permit
ting the holder to allow water to drip onto the servient
estate. See DRIP RIGHTS; STILLICIDIUM. [Cases: \-Vaters
and Water Courses ~-:>121.]
eavesdropping. (I7c) The act of secretly listening to the
private conversation of others without their consent.
Cf. BUGGING; WIRETAPPING. [Cases: Telecommunica
tions 1435.]
EB. abbr. Bt/REAU OF ECONOMIC AND BUSINESS AFFAIRS.
ebba et fluctus (eb-a et 113k-tas), n. [Latin "ebb and flow"]
Hist. The ebb and flow oftide; ebb and flood. _ The time
ofone ebb and flood, plus an additional 40 days, was
anciently granted to a person who was excused from
court for being beyond seas. See EBB A ND FLOW; ESSOIN;
BEYOND SEAS.
ebb and flow. (bef. 12c) The coming and going of the
tides. -This expression was formerly used to denote the
limits ofadmiralty jurisdiction. The tidewater limitation was abandoned in The Genesee Chief v. Fitzhugh,
53 U.S. (12 How.) 443 (1851).
ebdomadarius (eb-dom-a-dair-ee-as), n. [Latin
"weekly] Eccles. law. An officer in a cathedral church
who supervises the regular performance of divine
service and prescribes the duties ofchoir members.
EBIT. abbr. See earnings before interest and taxes under
EARNINGS.
EBITDA. abbr. See EARNINGS.
ebriety, n. Rare. A state or habit ofintoxication; inebria
tion.
EC. abbr. 1. ETHICAL CONSIDERATION. 2. European
Community. See EUROPEAN UNION.
ecclesia (i-klee-z[hlee-a), n. [Latin fro Greek ekklesia
"assemblyll. A place ofreligious worship. 2. A Chris
tian assembly; a church.
ecclesiarch (i-klee-zee-ahrk), n. The ruler ofa church.
ecclesiastic (i-klee-zee-as-tik), n. (17c) A clergyman: a
priest; one consecrated to the service of the church.
[Cases: Religious Societies C=27.]
ecclesiastical (i-klee-zee-as-ti-bl), adj. (I5c) Of or
relating to the church, esp. as an institution. Also
termed ecclesiastic. [Cases: Religious Societies
ecclesiastical authorities. The church's hierarchy,
answerable to the Crown, but set apart from the rest
of the citizens, responsible for superintending public
worship and other religiOUS ceremonies and for admin
istering spiritual counsel and instruction. _ In England,
the several levels ofthe clergy are (1) archbishops and
bishops, (2) deans and chapters, (3) archdeacons, (4)
rural deans, (5) parsons (under whom are included
appropriators) and vicars, and (6) curates. Church
wardens, sidesmen, parish clerks, and sextons are also
considered types of ecclesiastical authorities because
their duties are connected with the church. Cf. ecclesi
astical court under COURT.
ecclesiastical commissioners. Rist. English law. A group
of people empowered to suggest measures to improve
the established church's efficiency, to be ratified by
orders in counciL -This body of commissioners, estab
lished in 1836 by the Ecclesiastical Commissioners Act
(St. 6 & 7 WilL 4, ch. 77), has been dissolved. Its func
tions, rights, and property are now vested in the church
commissioners.
ecclesiastical controversy. A civil claim based on the
decision of a religiOUS association's tribunal against
one or more members of the association. -If the
decision relates solely to matters within the church,
such as church governance or questions offaith, secular
courts have no jurisdiction to hear what is effectively an
appeal. See Watson v. Jones, 80 U.S. 679, 728-29 (1871).
[Cases: Religious Societies C=14,24.]
ecclesiastical corporation. See CORPORATION.
ecclesiastical court. See COURT.
589
ecclesiastical jurisdiction. Jurisdiction over ecclesiasti
cal cases and controversies, such as that exercised by
ecclesiastical courts.
ecclesiastical law. 1. The body oflaw derived largely from
canon and civil law and administered by the ecclesiasti
cal courts. [Cases: Religious Societies {~5.]2. The law
governing the doctrine and discipline ofa particular
church; esp., Anglican canon law. -Also termed jus
ecclesiasticum; law spiritual. Cf. CANON LAW.
ecclesiastical |
termed jus
ecclesiasticum; law spiritual. Cf. CANON LAW.
ecclesiastical matter. A matter that concerns church
doctrine, creed, or form of worship, or the adoption
and enforcement, within a religious association, oflaws
and regulations to govern the membership, including
the power to exclude from such an association those
deemed unworthy of membership. [Cases: Religious
Societies 28.]
ecclesiastical sentence. The judgment in an ecclesiasti
cal case.
ecclesiastical things. Property (such as buildings and
cemeteries) given to a church to support the poor or
for any other pious use. [Cases: Religious Societies
15.]
ecclesiastical-tithe rentcharge. See RENTCHARGE.
ecdicus (ek-d;.l-k;.ls), n. [Greek ekdikos "legal represen
tative"] Hist. "The attorney, proctor, or advocate of an
organization . A church's attorney, for example, was
known as an episcoporum ecdicus.
e-check. See CHECK.
echevin (esh-;.l-van), n. French law. A municipal officer
corresponding with the position of alderman or
burgess, and sometimes having civil jurisdiction to
hear and determine certain minor cases.
echouement (ay-shoo-mawn), n. In French marine law,
stranding. See STRANDING.
ECJ. abbr. European Court ofJustice.
ECOA. abbr. EQUAL CREDIT OPPORTUNITY ACT.
ecological terrorism. See ecoterrorism under TERROR
ISM.
ecology ofcrime. See environmental criminology under
CRIMINOLOGY.
e-commerce. (1993) The practice of buying and selling
goods and services through online consumer services
on the Internet . The e, a shortened form of electronic,
has become a popular prefix for other terms associated
with electronic transactions. See ELECTRONIC TRANS
ACTION.
E-Commerce Directive. See DIRECTIVE ON CERTAIN
ASPECTS OF ELECTRONIC COMMERCE IN THE INTERNAL
MARKET.
e-commerce insurance. See INSURANCE.
econometrics (ee-kon-;.l-me-triks). The branch of eco
nomics that expresses economic theory in mathe
matical terms and that seeks to verify theory through
statistical methods.
economic coercion. See COERCION (2). economic loss
economic crime. See CRIME.
economic-cure trade embargo. See EMBARGO (3).
economic depreciation. See DEPRECIATION.
Economic Development Administration. A unit in the
U.S. Department ofCommerce responsible for helping
to develop local economies and distressed areas by
making grants for public works and development facili
ties that are deSigned to reduce persistent unemploy
ment in economically distressed areas. _ The agency
was created in 1965 by the Public Works and Economic
Development Act. Abbr. EDA.
economic discrimination. (1919) Any form ofdiscrimi
nation within the field of commerce, such as boycot
ting a particular product or price-fixing. See BOYCOTT;
PRICE DISCRIMINATION; PRICE-FIXING.
economic duress. See DURESS.
economic earnings. See operating earnings under
EARNINGS.
Economic Espionage Act. Trade secrets. A 1996 federal
statute criminalizing the misappropriation of trade
secrets and providing criminal penalties for industrial
espionage by or for a foreign entity . The Act also
applies to one who knowingly receives, purchases, or
possesses stolen trade-secret information. 18 USCA
1831-1839. Sometimes termed Industrial EspiO
nage Act.
economic frustration. See commercial frustration under
FRUSTRATION.
economic goodwill. See GOODWILL.
economic-harm rule. See ECONOMIC-LOSS RULE.
economic indicator. (1903) A statistical measure (such
as housing starts) used to describe the state of the
economy or to predict its direction. See INDICATOR.
lagging economic indicator. An economic indicator
(such as new-home sales) that tends to respond to
the direction of the economy. -Often shortened to
lagging indicator.
leading economic indicator. An economic indica
tor (such as interest rates) that tends to predict the
future direction of the economy. Often shortened
to leading indicator.
economic life. The duration of an asset's profitability,
usu. shorter than its physical life.
economic loss. (1905) A monetary loss such as lost
wages or lost profits . The term usu. refers to a type
of damages recoverable in a lawsuit. For example, in a
products-liability suit, economic loss includes the cost
of repair or replacement of defective property, as well
as commercial loss for the property's inadequate value
and consequent loss ofprofits or use. [Cases: Damages
<':=36,40(1); Products LiabilityC;:::> 156.]
consequential economic loss. Economic loss that proxi
mately results from a defective product and that is
beyond direct economic loss. Examples include
lost profits and loss of goodwill or business reputa
590 economic-loss rule
tion. [Cases: Damages Products LiabilityC=)
156.J
direct economic loss. Economic loss flowing directly
from insufficient product quality. The most
common type is loss-of-bargain damages ~the dif
ference between the actual value ofgoods accepted
and the value they would have had if they had been
delivered as promised or warranted. [Cases: Products
Liability 0='156; Torts 0='118.]
economic-loss rule. (1976) Torts. The principle that
a plaintiff cannot sue in tort to recover for purely
monetary loss ~as opposed to physical injury or
property damage ~caused by the defendant. Many
states recognize an exception to this rule when the
defendant commits fraud or negligent misrepresenta
tion, or when a special relationship exists between the
parties (such as an attorney-client relationship). -Also
termed economic-harm rule; economic-loss doctrine.
[Cases: Torts 0='118.J
"One way the courts have attempted to draw a line between
tort and warranty is to bar recovery for 'economic 105s' in
tort. In some states this common law doctrine has achieved
the status of the 'economic loss doctrine,' meaning that
once loss is defined as 'economic' it cannot be recovered at
least in negligence or strict tort and perhaps not in fraud or
misrepresentation." 1 JamesJ. White & Robert S. Summers,
Unifoym Commercial Code 105, at 581 (4th ed. 1995).
economic obsolescence. See OBSOLESCENCE.
economic-out clause. See MARKET-OUT CLAUSE.
economic-realities test. (1956) A method by which a
court determines the true nature ofa business transac
tion or situation by examining the totality ofthe com
mercial circumstances . Courts often use this test to
determine whether a person is an employee or an inde
pendent contractor. Factors include whether the alleged
employer controls the details ofthe work and whether
taxes are withheld from payments made to the worker.
[Cases: Labor and Employment 29.)
economic rent. 1. The return gained from an economic
resource (such as a worker or land) above the minimum
cost of keeping the resource in service. 2. Rent that
yields a fair return on capital and expenses.
Economic Research Service. An agency in the U.S.
Department ofAgriculture responsible for compiling
and analyzing information about domestic and inter
national agricultural developments. -Abbr. ERS.
economic right. (usu. pl.) Copyright. A legal interest and
power that concerns a financial benefit from a work, as
distinguished from a moral interest that a creator has
in a creation. The term is mostly used in civil-law
countries that recognize creators' moral rights.
economics. The social science dealing with the pro
duction, distribution, and consumption ofgoods and
services.
Economics and Statistics Administration. A unit in the
U.S. De\?artment ofCommerce res1?onsible for main
taining high-quality standards ofstatistical reporting
in the federal government and for responding to the
needs of the Department of Commerce and the rest of the executive branch for statistical information
and analysis. The unit comprises the Bureau of the
Census, the Bureau ofEconomic Analysis, and STAT
USA. -Abbr. ESA.
economic strike. See STRIKE.
economic-substance doctrine. Tax. The principle that a
transaction must be treated as a sham for tax purposes
if(l) the transaction has no genuine business purpose,
and (2) there is no reasonable possibility that it will
generate a profit in the absence oftax benefits. [Cases:
Internal Revenue C:=>3071.)
economic substantive due process. See DUE PROCESS.
economic warfare. See WARfARE.
economic unit. Eminent domain. In a partial-condem
nation case, the property that is used to determine
the fairmarket value of the portion that is taken by
eminent domain. The land taken may be a large or
small portion ofthe entire property. To determine how
much property to include in an economic unit, three
factors are weighed: (1) unity ofuse, (2) unity ofowner
ship, and (3) contiguity. Of these, the most important
is unity of use. See LARGER PARCEL.
economic waste. Overproduction or excessive drilling
ofoil or gas. [Cases: Mines and Minerals C:=>78.1(1l),
92.53.)
economist. (l6c) A professional who studies economics
and the economy; a specialist in economics.
economy. (15c) 1. The management or administration of
the wealth and resources ofa community (such as a city,
state, or country). 2. The sociopolitical organization
ofa community's wealth and resources. 3. Restrained,
thrifty, or sparing use ofresources; efficiency.
balanced economy. An economy in which the monetary
values ofimports and exports are equal.
black economy. See SHADOW ECONOMY.
judicial economy. See JUDICIAL ECONOMY.
overheated economy. An economy that, although it has
a high level ofeconomic activity, has the capacity to
cause interest rates and inflation to rise.
political economy. A social science dealing with the
economic problems ofgovernment and the relationship
between political policies and economic processes.
shadow economy. See SHADOW ECOKOMY.
underground economy. See SHADOW ECONOMY.
economy of scale. (usu. pl.) A decline in a product's
per-unit production cost resulting from increased
output, usu. due to increased production facilities;
savings resulting from the greater efficiency oflarge
scale processes.
e contra (ee kon-tr;J). [Latin] On the contrary.
e-contract, n. 1. POINT-AND-CLICK AGREEMENT. 2. Anv
tl;'l?e of contract formed in the course ofe-commerc~
by (1) the interaction oftwo or more individuals using
electronic means, such as e-mail, (2) the interaction
of an individual with an electronic agent, such as a
591
computer program, or (3) the interaction of at least
two electronic agents that are programmed to recog
nize the existence of a contract. Sections 202-17 of
the Uniform Computer Information Transactions Act
provide rules for the formation, governance, and basic
terms ofan e-contract. Traditional contract principles
and remedies usu. apply to e-contracts. Also termed
electronic contract. See ELECTRO:'lIC AGENT.
e-contract, vb. To form a binding agreement by means of a
computer or other electronic or automated technology.
e converso (ee kan-var-soh). [Latin] Conversely; on the
other hand; on the contrary.
ecosabotage. See ecoterrorism under TERRORISM.
ecoterrorism. See TERRORISM.
ecovandalism. See ecoterrorism under TERRORISM.
ECU. abbr. EUROPEAN CURRENCY UNIT.
ecumenical (ek-ya-men-a-kal), adj. (16c) 1. General; uni
versal. 2. Interreligious; interdenominational.
E.D. abbr. Eastern District, in reference to U.S. judicial
districts.
EDA. abbr. ECONOMIC DEVELOPMENT ADMINISTRATION.
edge lease. See LEASE.
EDI agreement. abbr. Electronic Data Interchange
agreement; an agreement that governs the transfer or
exchange of data, such as purchase orders, between
parties by computer. Electronic data transmitted
under an EDI agreement is usu. formatted according
to an agreed standard, such as the American National
Standards Institute ANSI X12 standard or the U.N.
EDIFACT standard.
edict (ee-dikt), n. [fro Latin edictum] (l4c) A formal
decree, demand, or proclamation issued by the sov
ereign of a country. In some countries, an edict has
legal force equivalent to that of a statute. For Roman
law edicts, see EDICTUM.
perpetual edict. See edictum perpetuum under EDIC
TUM.
praetorian edict (pri-tor-ee-an). See edictum praetoris
under EDICTUM.
edictal (ee-dik-tal), adj. (17c) Of, relating to, conSisting
of, or pronounced in one or more edicts. -edictally,
adv.
edictal citation. Scots & Roman Dutch law. A form of
summons to appear in court, treated as having been
served by public proclamation when personal service
is impossible (as when a defendant is out of Scotland
or cannot be found). -Also termed edictal intimation.
See substituted service under SERVICE.
edictal interdict. See INTERDICT (1).
edictal intimation. See EDICTAL CITATION.
edicta magistratuum. See JUS HONORARIUM.
Edicts ofJustinian. Roman law. Thirteen constitutions
or laws ofJustinian, appended to the Greek collection |
Edicts ofJustinian. Roman law. Thirteen constitutions
or laws ofJustinian, appended to the Greek collection
ofthe Novels in the Venetian manuscript . The Edicts edictum
were confined to administrative matters in the prov
inces of the Roman Empire. They were not known to
the glossators.
edictum (a-dik-tam), n. [Latini Roman law. 1. In imperial
Rome, an edict or mandate; an ordinance or law pro
claimed by the emperor . An edict was a constitution
of the emperor acting on his own initiative, differing
from a rescript in not being returned in the way of
answer; from a decree in not being given in judgment;
and from both in not being founded upon solicitation.
As an imperial constitution, it had the force oflaw. 2.
A declaration by a magistrate relevant to his jurisdic
tion or area of competence; esp., the pronouncement
ofa magistrate of the principles by which he proposed
to act in office. See edictum annuum; FORMULA (1). Pi.
edicta.
edictum aedilicium (ee-dik-tam ee-da-lish-ee-am).
A curule aedile's edict regarding sales in the public
market; esp., an edict giving remedies for sales of
defective goods, animals, or slaves . An aedile could,
for instance, declare that sellers would be strictly
liable for latent defects in goods, and dictate how
dogs and wild animals for sale should be confined to
protect the public. -Also written aedilitium edictum.
Pl. edicta aedilicia.
edictum annuum (an-yoo-am). An edict issued by a
praetor at the beginning ofthe one-year term ofoffice.
PI. edicta annua.
edictum perpetuum (par-pech-oo-dm). The urban prae
tor's edict in its permanent form, edited by Julian in
A.D. 131 and given legislative force . This term origi
nally had the narrower sense ofthe praetors' general
edicts as opposed to edicts issued in specific cases.
Also termed perpetual edict. PI. edicta perpetua.
edictum praetoris (pri-tor-ds). The proclamation issued
by a praetor at the start ofthe year's term, explaining
the grounds on which a formula would be granted.
Also termed praetorian edict. See edictum annuum;
FORMULA (1).
edictum provinciale (pra-vin-shee-ay-Iee). An edict
or system of rules for the administration ofjustice,
modeled on edictum praetoris, issued by the provin
cial governors in the Roman Empire. PI. edicta pro
vincialia.
edictum repentinum (rep-an-tI-nam). [Latin] Roman
law. A supplementary edict issued to deal with some
emergency. This term was contrasted with edictum
perpetuum. PI. edicta repentina.
Edictum Theodorici (thee-a-da-rI-sr). A collection of
laws applicable to both Romans and Goths, issued by
Theodoric, king ofthe Ostrogoths, at Rome about A.D.
500, or perhaps by Theodoric III, king ofthe Visigoths
in Gaul about A.D. 460.
edictum tralatitium (tral-a-tish-ee-am). A praetor's
edict that retained all or a principal part of the pre
decessor's edict, with only such additions as appeared
necessary to adapt it to changing social conditions or
juristic ideas . This had become standard practice by
592 edile
the end of the Republic. -Also spelled edictum tral
acticium (tral-ak-tish-ee-Clm). PI. edicta tralatitia.
edile (ee-dIl). See AEDILE.
editorial privilege. See journalist's privilege (2) under
PRIVILEGE (3).
editus (ed-a-t<ls), adj. Hist. 1. (Of a statute or rule)
enacted; promulgated. 2. (Of a child) born; brought
forth.
Edmunds-Tucker Act. An 1882 federal law enacted to
punish polygamy. 48 USC A 1480a. -Sometimes
shortened to Edmunds Act. [Cases: Bigamy C= L1
educational expense. See EXPENSE.
educational institution. 1. A school, seminary, college,
university, or other educational facility, though not
necessarily a chartered institution. [Cases: Schools
2. As used in a zoning ordinance, all buildings
and grounds necessary to accomplish the full scope of
educational instruction, including those things essen
tial to mental, moral, and physical development. [Cases:
Zoning and Planning C:::>288.]
educational neglect. See NEGLECT.
educational trust. See TRUST.
education individual retirement account. See INDIVID
UAL RETIREMENT ACCOUNT.
EEC. abbr. European Economic Community. See
EUROPEAN UNION.
EEOC. abbr. EQUAL EMPLOYMENT OPPORTUNITY COM
MISSION.
EEZ. abbr. EXCLUSIVE ECONOMIC ZONE.
effect, n. (l4c) 1. Something produced by an agent or
cause; a result, outcome, or consequence. 2. The result
that an instrument between parties will produce on
their relative rights, or that a statute will produce on
existing law, as discovered from the language used, the
forms employed, or other materials for construing it.
effect, vb. (l6c) To bring about; to make happen <the
improper notice did not effect a timely appeal>.
effective, adj. (14c) 1. (Of a statute, order, contract, etc.)
in operation at a given time <effective June 1>. A
statute, order, or contract is often said to be effective
beginning (and perhaps ending) at a designated time.
2. Performing within the range ofnormal and expected
standards <effective counsel>. 3. Productive; achieving
a result <effective cause>.
effective assignment. See ASSIGNMENT (2).
effective assistance of counsel. See ASSISTANCE OF
COUNSEl..
effective cause. See immediate cause under CAUSE (1).
effective date. (1909) The date on which a statute,
contract, insurance policy, or other such instrument
becomes enforceable or otherwise takes effect . This
date sometimes differs from the date on which the
instrument was enacted or Signed.
effective filing date. See DATE. effective possession. See constructive possession under
POSSESSION.
effective rate. See INTEREST RATE.
effective tax rate. See average tax rate under TAX RATE.
effective vote. See VOTE (1).
effects, n. pl. (17c) Movable property; goods <personal
effects>.
personal effects. (1818) Items ofa personal character;
esp., personal property owned by a decedent at the
time of death. [Cases: Descent and Distribution
76; Executors and Administrators C:::o43.]
effects doctrine. See AFFECTS DOCTRINE.
effeirs (e-feerz), adv. Scots law. As appropriate; correctly.
The term ordinarily appears in the phrase as affeirs.
effets (e-fe or e-fets), n. pl. [French] 1. Bills ofexchange.
2. Goods; movables; chattels.
effets mobiliers (moh-beel-yay or moh-ba-Ieerz).
Funds; stocks.
efficient adequate cause. See proximate cause under
CAUSE (1).
efficient breach. See BREACH OF CONTRACT.
efficient-breach theory. (1980) Contracts. The view that
a party should be allowed to breach a contract and
pay damages, ifdoing so would be more economically
efficient than performing under the contract . This
relatively modern theory stems from the law-and-eco
nomics movement. See BREACH OF CONTRACT. [Cases:
Contracts
efficient cause. See proximate cause under CAUSE (1).
efficient intervening cause. See intervening cause under
CAUSE (1).
efficient proximate cause. See proximate cause under
CAUSE (1).
effigy (ef-a-jee), n. (16c) A figure, image, or other repre
sentation; esp., a crude representation ofsomeone who
is disliked . Effigies are sometimes hanged, burned,
or otherwise abused to express public disapproval or
ridicule.
effluent (ef-Ioo-ant), n. (1859) Liquid waste that is dis
charged into a river, lake, or other body ofwater. [Cases:
Environmental Law (;=182.J
effluxion of time (i-f1uk-shan). (17c) The expiration of
a lease term resulting from the passage of time rather
than from a specific action or event. -Also termed
efflux oftime. [Cases: Landlord and Tenant
efforcialiter (e-for-shee-ay-la-tClr), adv. [Latin] Hist.
Forcibly. This adverb referred primarily to military
force.
effraction (a-frak-shCln). (l9c) Archaic. A breach made
by the use offorce; BURGLARY (1).
effractor {i-frak-tar}. [Latin] Hist. One who breaks
through; a burglar. PI. effractors, effractores (ef-rak
tor-eez). See HOUSEBREAKING.
593
effusio sanguinis (e-fyoo-zhee-oh sang-gwi-nis).
[Latin] Hist. 1. The shedding of blood. 2. The fine or
penalty imposed for the shedding of blood . The
Crown granted to many lords of manors the power to
collect this fine. -Also termed bloodwite; bloodwit.
Cf. WERGILD.
EFT. abbr. Electronic funds transfer. See FUNDS
TRANSFER.
e.g. abbr. [Latin exempli gratia] (17c) For example <an
intentional tort, e.g., battery or false imprisonment>.
Cf.LE.
egg donation. Family law. A type of assisted-repro
ductive therapy in which eggs are removed from one
woman and transplanted into the uterus of another
woman who carries and delivers the child. In egg
donation, the egg is usu. fertilized in vitro. See IN VITRO
FERTILIZATION; ASSISTED-REPRODUCTIVE TECHNOL
OGY. [Cases: Child Custody 0:>274.5; Child Support
(;::::>63; Children Out-of-Wedlock (;::::> 15; Parent and
Child
eggshell-skull rule. (1961) Torts. The principle that a
defendant is liable for a plaintiff's unforeseeable and
uncommon reactions to the defendant's negligent or
intentional act. Under this rule, for example, if one
person negligently scrapes another who turns out to
be a hemophiliac, the negligent defendant is liable for
the full extent ofthe plaintiff's injuries even though the
harm to another plaintiff would have been minor.
Also termed eggshell-plaintiff rule; thin-skull rule; spe
cial-sensitivity rule; old-soldier's rule. [Cases: Damages
(;:::::33.]
ego, taUs (ee-goh, tay-lis). [Latin] 1, such a one. This
phrase was used in describing the forms of old deeds.
egrediens et exeuns (e-gree-dee-enz et ek-see-;mz). [Latin
"stepping out and exiting"] Common-law pleading.
Going forth and issuing out of (land).
egregious (i-gree-j<ls), adj. (16c) Extremely or remarkably
bad; flagrant <the defendant's egregious behavior>.
egress (ee-gres). (16c) 1. The act ofgoing out or leaVing. 2.
The right or ability to leave; a way of exit. Cf. INGRESS.
ei abest (ee-I ab-est). [Latin] Roman law. It is wanting to
him. 1he phrase appeared in reference to any dimi
nution in a person's assets.
EIC. abbr. See earned-income credit under TAX CREDIT.
eight-corners rule. Insurance. The principle that a lia
bility insurer's duty to defend its insured generally
triggered if the plaintiff's claims against the insured are
within the policy's coverage -is assessed by reviewing
the claims asserted in the plaintiff's complaint, without
reference to matters outside the four corners of the
complaint plus the four corners of the policy. Also
termed allegations-of-the-complaint rule. Cf. FOUR
CORNERS RULE. [Cases: Insurance (;::::>2914,2915.]
1891 Copyright Amendment Act. See CHACE ACT.
Eighteenth Amendment. The constitutional amend
ment ratified in 1919 and repealed by the 21st Amend
ment in 1933 -that prohibited the manufacture, sale, eisne
transportation, and possession ofalcoholic beverages in
the United States. See PROHIBITION (3). [Cases: Intoxi
cating Liquors (;::::> 17.]
Eighth Amendment. 1he constitutional amendment,
ratified as part of the Bill ofRights in 1791, prohibiting
excessive bai\, excessive fines, and cruel and unusual
punishment.
eight-hour law. A law that sets eight hours as the
standard workday for some jobs and that usu. requires
a higher pay rate for work beyond eight hours . One
example is the federal Fair Labor Standards Act. See
WAGE-AND-HOUR LAW.
8-K. An SEC form that a registered corporation must
file if a material event affecting its financial condition
occurs between the due dates for regular SEC filings.
Also termed Form 8-K. Cf. lO-K.
83(b) election. Tax. An employee's choice to treat an
employer's grant of unvested property, usu. stock, as
being vested immediately and as currently taxable |
employer's grant of unvested property, usu. stock, as
being vested immediately and as currently taxable on
the amount the employer paid for it. The alternative
is for the employee to wait until the property vests and
pay taxes on its value at that time. An 83(b) election
is typically used when the property is expected to
have a dramatic increase in value before the employ
ee's interest in it vests. IRC (26 USCA) 83(b).[Cases:
Internal Revenue (;::::>3602.]
eigne (ayn), adj. [Law French] (15c) Hist. 1. (Of a child)
eldest; first-born. 2. (Oftitle) superior; prior. 3. (Of an
estate) entailed. See ENTAILED . This adjective tradi
tionally follows the noun it modifies in sense 1 <bastard
eigne> but precedes the noun in senses 2 and 3 <eigne
title>. -Also spelled eigl1; eygne; eisne; aisne. Also
termed (in Law Latin) einetius.
bastard eigne. Hist. An illegitimate son whose parents
afterward marry and have a second son (mulier
puisne) for lawful issue.
eignesse (ay-nes), n. [French] See ESNECY.
eik (eek). Scots law. An appendix or postscript to a formal
document.
EIN. abbr. See TAX-IDENTIFICATION NUMBER.
einecia (I-nee-shee-J), n. [Law Latin fro French eine
i "being born before"] Eldership. See ESNECY.
. einetia. See EISNETIA.
I einetius (I-nee-shee-<ls), 11. See EIGNE.
EIR. abbr. Environmental-impact report. See ENVIRON
MENTAL-IMPACT STATEMENT.
eire (air), n. Hist. A journey; route; circuit. See EYRE.
eirenarcha (I-rJ-nahr-kJ), 11. [from Greek eirene "peace"
+ archein "to rule"] Romal1 law. A provincial justice of
the peace; a person charged with maintaining order.
Also spelled (in Latin) irenarcha.
E1S. abbr. ENVIRONMENTAL-IMPACT STATEMENT.
eisne (ayn), adj. See EIGNE.
594 eisnetia
eisnetia (Iz-nee-shee-d), n. [Law Latin] The share ofthe
oldest son; the portion ofan estate acquired by primo
geniture. -Also spelled einetia. Cf. ESNECY.
either-or order. See alternative order under ORDER (8).
eiusdem generis. See EJUSDEM GENERIS.
eject, vb. (I5c) l. To cast or throw out. 2. To oust or dis
possess; to put or turn out ofpossession. 3. To expel or
thrust out forcibly (e.g., disorderly patrons). -ejector,
vb.
ejection, n. (I6c) l. An expulsion by action oflaw or
by actual or threatened physical force. See OUSTER. 2.
EJECTMENT (2).
ejectione custodiae. See DE EJECTIONE CUSTODIAE.
ejectione firmae. See DE EjECTIONE FIRMAE.
ejectment. (I6c) l. The ejection ofan owner or occupier
from property. 2. A legal action by which a person
wrongfully ejected from property seeks to recover pos
session, damages, and costs. 3. The writ by which such
an action is begun. The essential allegations in an
action for ejectment are that (1) the plaintiff has title
to the land, (2) the plaintiff has been wrongfully dis
possessed or ousted, and (3) the plaintiff has suffered
damages. -Also termed action ofejectment; action
for the recovery ofland; ejection. See FORCIBLE ENTRY
AND DETAINER. Cf. EVICTION; OUSTER. [Cases: Eject
mentC=>l.]
"The evolution of the action of ejectment from its primitive
form as a mere action of trespass, enabling a lessee of
lands to recover damages when ousted of his possession,
through a series of most ingenious fictions, which were
afterwards added to enable him to recover possession as
well, until its final establishment as the proper method
of trying all disputed titles to real property, presents to
the student of legal science one of the most interesting
studies that the history of the law affords. Few remedies
have passed through so many changes of form, both in
pleading and practice, and yet retained the same distinctive
character that marked their origin." George W. Warvelle, A
Treatise on the Principles and Practice of the Action ofEject
ment 4, at 4-5 (1905).
"Any person wrongfully dispossessed of land may sue
for the specific restitution of it in an action of ejectment.
Originally this action was a special variety of trespass and
available only to leaseholders. But in time and by the aid of
the most elaborate fictions it came to be used by freehold
ers also. All these fictions have now been swept away; in
theory even the term ejectment has been replaced by the
term action for the recovery of land. The older term is,
however, replaced in practice." R.F.v. Heuston, Salmond
on the Law of Torts 41 (17th ed. 1977).
equitable ejectment. (I820) A proceeding brought to
enforce specific performance ofa contract for the sale
ofland and for other purposes. Though in the form
ofan ejectment action, this proceeding is in reality a
substitute for a bill in equity. [Cases: Ejectment C=>
156.]
justice ejectment. (1900) A statutory proceeding to
evict a tenant who has held over after termination of
the lease or breach ofits conditions.
ejectment bill. (I8c) Equity practice. A bill in equity
brought to recover real property and an accounting of rents and profits, without setting out a distinct ground
of equity jurisdiction (and thus demurrable). [Cases:
Ejectment C=>62.]
ejectment de garde. See DE EjECTIONE CUSTODIAE.
ejector, n. (I7c) One who ejects, puts out, or dispossesses
another.
casual ejector. The nominal defendant in an ejectment
action who, under a legal fiction, is supposed to come
casually or by accident upon the premises and to eject
the lawful possessor. [Cases: Ejectment C=>46.]
ejectum (i-jek-tdm), n. Something that is cast out,
esp. by the sea. See FLOTSAM. Cf. JETSAM; LAGAN (1);
WAVESON.
ejectus (ee-jek-tds), n. [Latin] Hist. A whoremonger; a
pimp.
ejercitoria (ay-hair-see-tor-ee-d), n. [Spanish] Spanish
law. An action lying against a shipowner upon the con
tracts or obligations made by the master for repairs
or supplies. This action corresponds to the actio
exercitoria ofRoman law. See action exersitoria under
ACTIO.
ejido (ay-hee-doh), n. [fro Latin exitus "a going out"] (I9c)
Spanish law. Common land or pasture; esp., land used
in common by inhabitants ofa city, pueblo, or town for
such things as pasture, wood, and threshing-ground;
commons. -Also termed exidos; exedos. See COMMON
(2).
ejuration (ej-d-ray-shdn). The renouncing or resigning
ofone's place.
ejusdem generis (ee-jds-ddm jen-d-ris also ee-joos-or
ee-yoos-). [Latin "of the same kind or class"] (I7c) l.
A canon of construction holding that when a general
word or phrase follows a list of specifics, the general
word or phrase will be interpreted to include only
items ofthe same class as those listed . For example,
in the phrase horses, cattle, sheep, pigs, goats, or any
other farm animals, the general language or any other
farm animals -despite its seeming breadth -would
probably be held to include only four-legged, hoofed
mammals typically found on farms, and thus would
exclude chickens. -Also termed Lord Tenterden's
rule. Cf. EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS;
NOSCITUR A SOCIIS; RULE OF RANK. [Cases: Contracts
156; Statutes C=> 194.] 2. Loosely, NOSCITUR A
SOCIIS.
ejusdem negotii (ee-jds-ddffi ni-goh-shee-I). [Latin] Hist.
Part ofthe same transaction.
elaborare (i-Iab-d-rair-ee), vb. [Latin] Hist. To gain,
acquire, or purchase, as by labor and industry.
elaboratus (i-Iab-d-ray-tds), n. [Latin] Hist. Property
acquired by labor.
Elastic Clause. See NECESSARY AND PROPER CLAUSE.
elbow clerk. See CLERK (5).
elder abuse. See abuse ofthe elderly under ABUSE.
Elder Brethren. A distinguished body ofmen elected as
masters ofTrinity House, an institution incorporated in
595
the reign ofHenry VIII and charged with many duties
in marine affairs, such as superintending lighthouses.
The full title of the corporation is Elder Brethren of
the Holy and Undivided Trinity.
elder law. (I986) The field oflaw dealing with the elderly,
including such issues as estate planning, retirement
benefits, social security, age discrimination, and
healthcare.
elder title. A title of earlier date but one that becomes
operative simultaneously with, and prevails over, a title
of newer origin.
elected domicile. See DOMICILE.
electee. 1. A person chosen or elected. 2. A person to
whom the law gives a choice about status.
electing small-business trust. See TRUST (3).
electio est creditoris (i-Iek-shee-oh est kred-i-tor-is).
[Law Latin] Scots law. The creditor has the election or
choice. The phrase appeared in reference to the credi
tor's right to apply payments to one debt or another. Cf.
ELECTIO EST DEBITORIS.
"Electio est creditoris .... This has reference to a creditor's
right to apply indefinite payments, made by his debtor, to
that debt or obligation which is least secured; but where
the debtor at the time of payment appropriates the sum
paid, towards extinction of a particular debt, it must be
so applied." John Trayner, Trayner's Latin Maxims 184 (4th
ed.1894).
electio est debitoris (i-lek-shee-oh est deb-i-tor-is). [Law
Latin] Scots law. The debtor has the election or choice.
Ifthe law provided alternative methods of fulfilling
an obligation, the debtor could choose the method of
payment. Cf. ELECTIO EST CREDITORIS.
election, n. (13c) 1. The exercise ofa choice; esp., the act
ofchoosing from several possible rights or remedies in
a way that precludes the use ofother rights or remedies
<the taxpayers' election to file jointly instead of sepa
rately>. See ELECTION OF REMEDIES. 2. The doctrine by
which a person is compelled to choose between accept
ing a benefit under a legal instrument and retaining
some property right to which the person is already
entitled; an obligation imposed on a party to choose
between alternative rights or claims, so that the party
is entitled to enjoy only one <the prevailing plaintiff
was put to an election between out-of-pocket damages
and lost profits>. Also termed equitable election.
See RIGHT OF ELECTION. [Cases: Election of Remedies
C=:> 1.] 3. The process of selecting a person to occupy
an office (usu. a public office), membership, award, or
other title or status <the 2004 congressional election>.
Cf. two-round voting under VOTING. [Cases: Elections
elect, vb. elective, adj.
by-election. An election specially held to fill a vacant
post. -Also spelled bye-election. Cf. general
election.
election at large. An election in which a public official
is selected from a major election district rather than
from a subdivision of the larger unit. Also termed
at-large election. [Cases: Elections <;:::> 12(7).] election board
free election. An election in which the political system
and processes guarantee that each voter will be
allowed to vote according to conscience.
general election. 1. An election that occurs at a regular
interval oftime. -Also termed regular election. 2. An
election for all seats, as contrasted with a by-election.
Cf. by-election. [Cases: Elections C=215.]
municipal election. The election ofmunicipal officers.
[Cases: Municipal Corporations 129.]
off-year election. An election conducted at a time other
than the presidential election year.
popular election. An election by people as a whole,
rather than by a select group.
primary election. A preliminary election in which a
political party's registered voters nominate the can
didate who will run in the general election. -Often
shortened to primary. [Cases: Officers and Public
Employees C::"'70.7.]
recall election. An election in which voters have the
opportunity to remove a public official from office.
regular election. See general election.
representation election. An election held by the
National Labor Relations Board to decide whether a
certain union will represent employees in a bargain
ing unit. See BARGAINING UNIT. [Cases: Labor and
Employment C~~1187.]
runoffelection. An election held after a general election,
in which the two candidates who received the most
votes neither of whom received a majority -run
against each other so that the winner can be deter
mined. Cf. two-round voting under VOTING.
special election. An election that occurs in an inter |
can be deter
mined. Cf. two-round voting under VOTING.
special election. An election that occurs in an interim
between general elections, usu. to fill a sudden
vacancy in office. Cf. by-election.
4. Patents. A patent applicant's choice ofa single inven
tion to continue prosecuting under the original applica
tion, after an examiner has required a restriction. See
RESTRICTION (4). [Cases: Patents <;:::> 104.]
election ofspecies. A patent applicant's choice of one
alternative over others after an examiner determines
that a generic claim is not allowable. [Cases: Patents
C::'104.]
election, doctrine of. A doctrine holding that when a
person has contracted with an agent without knowing
ofthe agency and later learns ofthe principal's identity,
the person may enforce the contract against either the
agent or the principal, but not both. See ELECTION (1).
[Cases: Principal and Agent C,,:;;> 145(4).]
election, estoppel by. See estoppel by election under
ESTOPPEL.
election board. 1. A board of inspectors or commission
ers appointed for each election precinct to determine
voter qualification, to supervise the polling, and often
to ascertain and report the results. 2. A local agency
charged with the conduct of elections. [Cases: Elections
<;:::>49-58.]
election by spouse. See RIGHT OF ELECTION.
election contest. A challenge by an election's loser
against the winner, calling for an analysis ofthe election
returns, which may include reviewing voter qualifica
tions or re-counting the ballots. [Cases: Elections ~
148,269-306.]
election district. See DISTRICT.
election dower. See DOWER.
election fraud. (l8c) Illegal conduct committed in
an election, usu. in the form of fraudulent voting.
Examples include voting twice, voting under another
person's name (usu. a deceased person), or voting while
ineligible. [Cases: Elections ~318.]
election judge. 1. A person appointed to supervise an
election at the precinct level; a local representative ofan
election board. [Cases: Elections ~49.]2. English law.
One oftwo puisne judges ofthe Queen's Bench Division
of the High Court selected to try election petitions.
election of remedies. (l8c) 1. A claimant's act of
choosing between two or more concurrent but incon
sistent remedies based on a single set offacts. [Cases:
Election of Remedies ~1.] 2. The affirmative defense
barring a litigant from pursuing a remedy inconsistent
with another remedy already pursued, when that other
remedy has given the litigant an advantage over, or
has damaged, the opposing party. This doctrine has
largely fallen into disrepute and is now rarely applied. 3.
The affirmative defense that a claimant cannot simulta
neously recover damages based on two different liabil
ity findings if the injury is the same for both claims,
thus creating a double recovery. Cf. alternative relief
under RELIEF (3).
election of species. See ELECTION (4).
election petition. English law. A petition for inquiry into
the validity of a Parliament member's election, when
the member's return is allegedly invalid for bribery or
other reason.
election returns. The report made to the board of can
vassers or the election board, by those charged with
tallying votes, of the number of votes cast for a par
ticular candidate or proposition. [Cases: Elections ~
126(7), 246.]
elective franchise. See FRANCHISE (1).
elective office. An office that is filled by popular election
rather than by appointment.
elective share. (1931) Wills & estates. The percentage ofa
deceased spouse's estate, set by statute, that a surviving
spouse (or sometimes a child) may choose to receive
instead of taking under a will or in the event of being
unjustifiably disinherited. -Also termed forced share;
statutory share; statutory forced share. See RIGHT OF
ELECTION. [Cases: Wills ~778-803.]
"In many states today, common-law dower and curtesy have
been wholly replaced by statutes that make the surviving
spouse an 'heir' ofthe deceased spouse and fix a minimum
percentage of the decedent's estate (real and personal) to
which the survivor will be entitled regardless of efforts of
the deceased spouse to prevent it by will. This statutory minimum -called the statutoyy foYced shaye -is typically
an estate in fee simple, not merely a life estate. A serious
disadvantage to the surviving spouse under many of these
statutes, however, is that the minimum percentage applies
only to property owned by the decedent at death. Both
husbands and wives can, under such statutes, defeat their
spouses' forced shares by intey vivos transfer." Thomas
F. Bergin & Paul C. Haskell, Pyeface to Estates in Land and
FutuYe Inteyests 37-38 (2d ed. 1984).
elector. (15c) 1. A member ofthe electoral college chosen
to elect the U.S. President and Vice President. -Also
termed presidential elector. [Cases: United States ~
25.] 2. A voter. [Cases: Elections ~59.]
qualified elector. A legal voter; a person who meets
the voting requirements for age, residency, and reg
istration and who has the present right to vote in an
election. See VOTER. [Cases: Elections ~59-87.]
3. A person who chooses between alternative rights or
claims. 4. Hist. The title of certain German princes who
had a voice in electing the Holy Roman Emperors .
This office sometimes became hereditary and was con
nected with territorial possessions.
electoral college. (often cap.) (17c) The body of electors
chosen from each state to formally elect the U.S. Presi
dent and Vice President by casting votes based on the
popular vote. [Cases: United States ~25.]
electoral process. (1851) 1. The method by which a
person is elected to public office in a democratic society.
2. The taking and counting ofvotes.
electric chair. (1889) A chair that is wired so that elec
trodes can be fastened to a condemned person's body
and a lethal charge passed through the body for the
purpose ofcarrying out a death penalty . The electric
chair was first used in 1890 at the Auburn State Prison
in New York.
electronic agent. Any electronic or automated means,
such as a computer program, that can independently
initiate or respond to an action or message without a
human's review.
electronic cash. See e-money under MONEY.
electronic chattel paper. See CHATTEL PAPER.
electronic check. See e-check under CHECK.
electronic-check conversion. In a discrete electronic-
funds transfer, the process by which a paper check is
used as the source ofinformation for the check number,
account number, and bank-routing number. The
check itself is not considered the method of payment.
See e-check under CHECK.
Electronic Commerce Directive. See DIRECTIVE ON
CERTAIN ASPECTS OF ELECTRONIC COMMERCE IN THE
INTERNAL MARKET.
Electronic Communications Privacy Act. A federal
statute that limits the circumstances under which
the federal and state government may gain access to
oral, wire, and electronic communications. 18 USCA
2510. [Cases: Telecommunications ~1297, 1335,
1342, 1435.]
electronic contract. See E-CONTRACT.
597 elongatus
Electronic Data Interchange agreement. See EDI AGREE
MENT.
electronic funds transfer. See FUNDS TRANSFER.
electronic currency. See e-money under MONEY.
electronic signature. See SIGNATURE.
Electronic Signatures in Global and National
Commerce Act. See E-SIGN ACT.
electronic surveillance. 1. See EAVESDROPPING. 2. See
WIRETAPPING.
electronic transaction. (1975) A transaction formed by
electronic messages in which the messages of one or
both parties will not be reviewed by an individual as an
expected step in forming a contract. UCC 2A-102(a)
(16).
eleemosynae (el-d-mos-d-nee), n. pI. Eccles. law. Posses
sions belonging to the church. [Cases: Religious Soci
eties C-:/15.]
eleemosynaria (el-d-mos-d-nair-ee-d), n. Hist. 1. The
place in a religious house or church where the common
alms were deposited, to be distributed to the poor by
the almoner. 2. The office of almoner.
eleemosynarius (el-d-mos-d-nair-ee-ds), n. [Law Latin]
Hist. 1. An almoner, or chiefofficer, who received the
eleemosynary rents and gifts and distributed them to
pious and charitable uses. 2. The name of an officer
(Lord Almoner) ofthe English kings, in former times,
who distributed the royal alms or bounty.
eleemosynary (el-d-mos-d-ner-ee), adj. (17c) Of, relating
to, or assisted by charity; not-for-profit <an eleemosy
nary institution>. [Cases: Charities
eleemosynary corporation. See charitable corporation
under CORPORATIOK.
eleemosynary defense. See charitable immunity under
IMMUNITY (2).
eleganter (el-d-gan-tdr), adv. Civil law. Accurately; with
discrimination; neatly.
elegit (d-Iee-jit). [Latin "he has chosen"] (l6c) Hist. A
writ of execution (first given by 13 Edw., ch. 18) either
upon a judgment for a debt or damages or upon the
forfeiture of a recognizance taken in the king's court.
-Under it, the defendant's goods and chattels were
appraised and, except for plow beasts, delivered to the
plaintiff to satisfy the debt. If the goods were not suf
ficient to pay the debt, then the portion ofthe defen
dant's freehold lands held at the time ofjudgment was
also delivered to the plaintiff, to hold until the debt was
satisfied out ofrents and profits or until the defendant's
interest expired. During this period the plaintiff was
called tenant by elegit, and the estate an estate by elegit.
The writ was abolished in England in 1956, and it is no
longer used anywhere in the United States.
element. (Bc) 1. A constituent part ofa claim that must
be proved for the claim to succeed <Burke failed to
prove the element ofproximate cause in prosecuting
his negligence claim>. 2. Patents. A discretely claimed
component ofa patent claim. -For a prior-art reference to anticipate a claim, it must teach each and every claim
element. To recover for patent infringement, the plain
tiff must prove that the accused product infringes every
element of at least one claim, either literally or under
the doctrine of equivalents. Also termed (in sense
2) limitation. See DOCTRINE OF EQUlVAI,ENTS. [Cases:
Patents (:::::> 101(1).]
elemental fact. See ultimate fact under FACT.
elements of crime. (1909) The constituent parts of a
crime usu. consisting ofthe actus reus, mens rea, and
causation -that the prosecution must prove to sustain
a conviction. _ The term is more broadly defined by
the Model Penal Code in 1.13(9) to referto each com
ponent ofthe actus reus, causation, the mens rea, any
grading factors, and the negative ofany defense.
Eleventh Amendment. The constitutional amend
ment, ratified in 1795, prohibiting a federal court from
hearing an action against a state by a person who is not
a citizen ofthat state. See sovereign immunity under
IMMUNITY (1). [Cases: Federal Courts <>::::265-268.]
eligible, adj. (I5c) Fit and proper to be selected or to
receive a benefit; legally qualified for an office, privilege,
or status. -eligibility, n.
elimination. Hist. The act ofbanishing or turning out
ofdoors; rejection.
i elinguation (ee-ling-gway-sh;m). Hist. ]he punishment
, ofcutting out a person's tongue. -elinguate, vb.
elisor (i-h-zdr). (17c) A person appointed by a court to
assemble a jury, serve a writ, or perform other duties of
the sheriff or coroner ifeither is disqualified. -Also
spelled eslisor. [Cases: Sheriffs and Constables
26.]
Elkins Act. A 1903 federal law that strengthened the
Interstate Commerce Act by prohibiting rebates and
other forms ofpreferential treatment to large carriers.
49 USCA 41-43 (superseded).
ell (el). Hist. A measure oflength corresponding to the
modern yard.
Ellenborough's Act (el-dn-brdz). An English law (the
Malicious Shooting and Stabbing Act) of 1803 punish
ing offenses against the person. St. 43 Geo. 3, ch. 58.
elogium (i-Ioh-jee-dm), n. Civil law. 1. A will or testa
ment. 2. A clause or provision in a will or testament.
eloign (i-loyn), vb. (l5c) 1. To remove (a person or
property) from a court's or sheriffs jurisdiction. 2. To
remove to a distance; conceaL Also spelled eloin.
eloigner, n.
eloignment (i-Ioyn-mdnt), n. (17c) The getting ofa thing
or person out of the way, or removing it to a distance,
so as to be out ofreach.
elongata ( |
or person out of the way, or removing it to a distance,
so as to be out ofreach.
elongata (ee-Iawng-gay-t~). [Latin] 1. adj. Eloigned;
carried away to a distance. 2. ELONGATUS.
elongatus (ee-Iawng-gay-t~s). [Latin "eloigned"] A return
made by a sheriff to a writ de homine replegiando,
stating that the party to be replevied has been eloigned,
or conveyed out of the sheriff's jurisdiction. Also
termed elongata.
elongavit (ee-lawng-gay-vit). [Latin "he has e1oigned"]
In a proceeding by foreign attachment, the serjeant-at
mace's return that the garnishee has eloigned the goods,
so that they cannot be appraised. Upon such a return,
judgment was given for the plaintiff that an inquiry be
made into the eloigned goods. The inquiry was then set
for trial and an assessment made by a jury.
elope, vb. (17c) 1. Archaic. To run away; escape. 2. Archaic.
To abandon one's husband and run away with a lover. 3.
To run away secretly for the purpose ofgetting married,
often without parental consent. -elopement, n.
elsewhere, adv. (bef. 12c) In another place . In shipping
articles, this term, following the designation ofthe port
of destination, must be construed either as void for
uncertainty or as subordinate to the principal voyage
stated in the preceding words. [Cases; Seamen C::::7.]
eluviation (i-Ioo-vee-ay-sh;}n). (1899) Movement ofsoil
caused by excessive water in the soil.
e-mail, n. (1982) A communication exchanged between
people by computer, through either a local area network
or the Internet. (Cases; Telecommunications
1342, 1343, 1439.] -Also spelled email. e-mail, vb.
emanation. (16c) 1. The act of coming or flowing forth
from something. 2. That which flows or comes forth
from something; an effluence.
emancipate, vb. (l7c) 1. To set free from legal, social, or
political restraint; esp., to free from slavery or bondage.
[Cases: Slaves C=>23.] 2. To release (a child) from the
control, support, and responsibility of a parent or
guardian. [Cases: Child Support C=>386-392; Parent
and Child C=> 16.] -emancipative, emancipatory,
adj. -emancipator, n.
emancipated minor. See MINOR.
emancipatio. See EMANCIPATION (3).
emancipation. (17c) 1. The act by which one who was
under another's power and control is freed. 2. A surren
der and renunciation ofthe correlative rights and duties
concerning the care, custody, and earnings of a child;
the act by which a parent (historically a father) frees
a child and gives the child the right to his or her own
earnings. This act also frees the parent from all legal
obligations ofsupport. Emancipation may take place by
agreement between the parent and child, by operation
oflaw (as when the parent abandons or fails to support
the child), or when the child gets legally married or
enters the armed forces. [Cases: Child Support
386-392; Parent and Child C=> 16.] 3. Roman law. The
enfranchisement of a son by his father, accomplished
through the formality ofan imaginary sale. -Justinian
substituted the simpler proceeding of a manumission
before a magistrate. -Also termed (in sense 3) eman
cipatio. Cf. MANCIPATION.
constructive emancipation. Emancipation by law, as
opposed to a voluntary act ofthe parent . Construc
tive emancipation may occur in several ways, as by (1) conduct ofthe parent that is inconsistent with the
performance of parental duties, (2) marriage of the
child, or (3) the child's service in the armed forces.
Child Support (::::'386-392; Parent and Child
partial emancipation. Emancipation that frees a child
for only a part of the period of minority, or from
only a part of the parent's rights, or for only some
purposes. [Cases; Child Support C=>386-392; Parent
and Child <;:16.]
emancipation act. See MARRIED WOMEN'S PROPERTY
ACTS.
Emancipation Proclamation. An executive proclama
tion, issued by President Abraham Lincoln on January
1, 1863, declaring that all persons held in slavery in
designated states and districts were freed.
embargo, n. (16c) 1. A government's wartime or peacetime
detention ofan offending nation's private ships found in
the ports of the aggrieved nation <the President called
offthe embargo ofIraq's ships after the war ended>.
Also spelled imbargo. -Also termed hostile embargo.
[Cases: War and National Emergency C=>12.)
"A hostile embargo is a kind of reprisal by one nation upon
vessels within its ports belonging to another nation with
which a difference exists, for the purpose of forcing it to
do justice. If this measure should be followed by war, the
vessels are regarded as captured, if by peace, they are
restored," Theodore D. Woolsey, Introduction to the Study
of International Law 118, at 187 (5th ed. 1878).
2. A nation's detention of all ships in its own ports,
including its own, to promote safety and to preclude
transportation to an offending nation <the embargo of
all U.S. ships traveling to Iraq remained in effect until
hostilities subsided>. -Also termed civil embargo.
[Cases: War and National Emergency (::~') 15.]
"A civil embargo may be laid for the purpose of national
welfare or safety, as for the protection of commercial
vessels against the rules of belligerent powers which would
expose them to capture. Such was the measure adopted
by the United States in December 1807, which detained in
port all vessels except those which had a public commis
sion, and those that were already laden or should sail in
ballast. The right to adopt such a measure of temporary
non-intercourse is undoubted." Theodore D. Woolsey,
Introduction to the Study of International Law 118, at 187
(5th ed. 1878).
3. The unilateral or collective restrictions on the import
or export of goods, materials, capital, or services into
or from a specific country or group of countries for
political or security reasons <for a time, the industri
alized nations placed an embargo on all goods from
Libya>. Also termed trade embargo; economic-cure
trade embargo. [Cases: War and National Emergency
4. The conscription ofprivate property for gov
ernmental use, such as to transport troops <the Army's
embargo of the company jet to fly General White to
Washington>. 5. A temporary prohibition on disclo
sure <the embargo on the press release expired at 11:59
p.m.>. embargo, vb.
embassador. See AMBASSADOR.
599 embryo
embassy. (1534) 1. The building in which a diplomatic
body is located; esp., the residence of the ambassador.
2. A body of diplomatic representatives headed by an
ambassador; a diplomatic mission on the ambassado
rial level. 3. The mission, business, and function of an
ambassador. Cf. LEGATION. [Cases: Ambassadors and
Consuls
Ember Days. Eccles. law. The days which the ancient
church fathers called quatuor tempora jejunii -that
are observed on the Wednesday, Friday, and Saturday
follOWing (1) Quadragesima Sunday (the first Sunday in
Lent), (2) Whitsuntide, or Holyrood Day, in September,
and (3) St. Lucy's day, about the middle ofDecember.
Almanacs refer to the weeks in which these days fall as
Ember Weeks; they are now chiefly noticed because, by
tradition, the Sundays follOWing Ember Days are used
to ordain priests and deacons, although the canon law
allows bishops to ordain on any Sunday or holiday.
embezzlernent, n. (I5c) The fraudulent taking ofpersonal
property with which one has been entrusted, esp. as a
fiduciary. The criminal intent for embezzlernent
unlike larceny and false pretenses arises after taking
possession (not before or during the taking). -Also
termed defalcation; peculation. See LARCENY; FALSE
PRETENSES. [Cases: Embezzlement -embezzle,
vb. embezzler, n.
"Embezzlement is not a common-law crime. It is the result
of legislative efforts to make provision for an unreasonable
gap which appeared in the law of larceny as it developed.
Under the early English statute embezzlement was made a
misdemeanor, but under most modern American statutes
it is either a felony or a misdemeanor depending upon the
value of the property converted." Rollin M. Perkins & Ronald
N. Boyce, Criminal Law 351 (3d ed. 1982).
"Embezzlement can be defined as the fraudulent conver
sion of the property of another by one who has lawful
possession of the property and whose fraudulent conver
sion has been made punishable by the statute." Arnold H.
Loewy, Criminal Law in a Nutshell 94 (2d ed. 1987).
emblem. (ISc) 1. A flag, armorial bearing, or other
symbol of a country, organization, or movement. 2.
Loosely, something that is used to symbolize some
thing else.
emblemata Triboniani (em-blee-m ..-to tro-boh-nee
ay-m). [Latin] Roman law. Alterations, modifications,
and additions to the writings of the older jurists that
were combined to form the Digest or Pandects, and
generally termed interpolations . Justinian appointed
a comrnission over which Tribonian presided to harmo
nize contradictions, delete obsolete matter, and bring
the law up to date. This term is considered old-fash
ioned by rnodern Romanists. See INTERPOLATIONS.
emblements (em-bl<l-m;mts). (l5c) 1. 'Ihe growing crop
annually produced by labor, as opposed to a crop
occurring naturally. Emblements are considered
personal property that the executor or administra
tor ofa deceased tenant may harvest and take regard
less of who rnay have since occupied the land. -Also
termedfructus industriales. [Cases; Crops 2. The
tenant's right to harvest and take away such crops after the tenancy has ended. [Cases: Landlord and Tenant
(>:::>139(2).]
"At common law those products of the earth which are
annual, and are raised by yearly manurance and labor, and
essentially owe their annual existence to the cultivation by
man, [are] termed 'emblements' and sometimes 'fructus
industriales.''' Sparrow v. Pond. 52 N.w. 36 (Minn. 1892).
''The law of emblements has its origin and matrix, in the
privilege, recognized at least as early as the fifteenth
century, of the tenant for an uncertain term, to harvest
and remove, even after the tenancy had terminated, the
annual crop, which he had planted and nurtured." Ray
Andrews Brown, The Law of Personal Property 159, at
806 (2d ed. 1955).
em biers de gentz (em-bl;>rz d<l jents). [Law French] A
theft from the people . The phrase occurs in the old
English rolls of Parliament -for example, "Whereas
divers murders, emblers de gentz, and robberies are
committed ...."
embodied technology. Intellectual property. Know-how
or knowledge that is manifest in products and equip
ment, including software. Cf. DISEMBODIED TECHNOL
OGY.
embodiment. Patents.!. The tangible manifestation of
an invention. [Cases: Patents C=:>99.J 2. The method for
using this tangible form. 3. The part of a patent applica
tion or patent that describes a concrete manifestation
of the invention . Embodiments are less common in
software or process patents than in manufacturing
related patents.
embossed seal. See NOTARY SEAL.
ernbrace, vb. To atternpt to influence (a judge or juror)
by corruption, or to behave in a way that might have a
corrupting influence; to engage in embracery.
embracee (em-bray-see). The bribe-taker in the offense
of embracery.
ernbracer (im-brays-i}r). [fro Old French embraseor "one
who kindles or instigates," fro embraser "to set fire to"]
(15c) The bribe-giver in the offense of embracery; one
who attempts to influence a judge or a juror by means
of corruption. -Also spelled embraceor.
embracery (im-brays-i}-ree), n. (15c) The attempt to
corrupt or wrongfully influence a judge or juror, esp.
by threats or bribery. Also spelled imbracery. -Also
termed jury-tampering; laboring a jury. Cf. JURY-FIX
ING; JURY-PACKING. [Cases: Criminal Law C=:>45.35.]
"The word 'embracery' ... has tended to disappear. It is
included in some of the codes but the tendency has been
to divide this common-law offense into two parts, placing
that which is appropriate thereto in sections on bribery
and the remainder in provisions dealing with obstruction
of justice." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 552 (3d ed. 1982).
embryo (ern-bree-oh). A developing but unborn or
unhatched animal; esp., an unborn human from con
ception until the development oforgans (j.e., until about
the eighth week of pregnancy |
., an unborn human from con
ception until the development oforgans (j.e., until about
the eighth week of pregnancy). Cf. FETUS; ZYGOTE.
embryo formatus (for-may-t;>s). Eccles. law. A human
embryo organized into human shape and endowed
with a soul. Though rejected in the early doctrine
600 embryo adoption
of the Christian church, the distinction between the
embryo formatus and informatus was accepted by
Gratian (regarded as the founder ofcanon law) in his
Decretum (ca. 1140), in which he said that abortion
is not murder if the fetus has not yet been infused
with a soul. Though he did not specify the time of
formation or animation, by the 16th century canon
ists accepted that the time of formation and anima
tion was the 40th day after conception tor the male
fetus and the 80th day for the female. -Also termed
embryo animatus.
embryo informatus (in-for-may-tas). Eccles. law. A
human embryo before it has been endowed with a
soul. -Also termed embryo inanimatus.
embryo adoption. See ADOPTION.
emend (i-mend), vb. (15c) To correct or revise; esp., to
edit or change (a text).
emenda (ee-men-da), n. pI. [Latin "amends"] Things
given in reparation for a trespass.
emendatio (ee-men-day-shee-oh), n. [Latin] Hist. The
power of amending and correcting abuses, according
to certain rules and measures.
emendatio panis et cerevisiae (ee-men-day-shee-oh
pan-is et ser-a-vizh-ee-ee). [Latin "the correction of
bread and ale"] The power of supervising and cor
recting (assizing) the weights and measures ofbread
and ale.
emendation (ee-men-day-sh;m). (16c) 1. Correction or
revision, esp. of a text. 2. Hist. The correction of an
error or wrongdoing; atonement tor a criminal offense,
esp. by the payment of money . As criminal law devel
oped over time, emendation by payment ofwer or wife
gradually faded away and was replaced by harsher pun
ishments.
e mera gratia (ee meer-a gray-shee-<l). [Latin] Out of
mere grace or favor.
emergency circumstances. See exigent circumstances
under CIRCUMSTANCE.
Emergency Court ofAppeals. Hist. A temporary court,
established during World War II, whose purpose was
to review wage-and price-control matters . The court
was created in 1942 and abolished in 1962. Cf. TEMPO
RARY EMERGENCY COURT OF APPEALS. [Cases: War and
National Emergency 0-::)108,206.]
emergency doctrine. (1929) 1. A legal principle exempt
ing a person from the ordinary standard of reasonable
care ifthat person acted instinctively to meet a sudden
and urgent need for aid. Also termed imminent-peril
doctrine; sudden-emergency doctrine; sudden-peril
doctrine; sudden-peril rule. [Cases: Negligence (:::;>291.]
2. A legal principle by which consent to medical treat
ment in a dire situation is inferred when neither the
patient nor a responsible party can consent but a rea
sonable person would do so. Also termed (in sense
2) emergency-treatment doctrine. Cf. GOOD SAMARI
TAN DOCTRINE; RESCUE DOCTRINE. [Cases: Health (:::;>
909.] 3. The principle that a police officer may conduct a search without a warrant if the officer has probable
cause and reasonably believes that immediate action
is needed to protect life or property. Also termed
emergency exception. See exigent circumstances under
CIRCUMSTANCE.
emergency-employment doctrine. The principle that an
employee may enlist another's help in dealing with an
emergency that falls within the scope of the employ
ee's duties and that could not be overcome without the
assistance ofthe other person.
emergency exception. See EMERGENCY DOCTRINE (3).
emergency jurisdiction. See JURISDICTION.
Emergency Preparedness and Response Director
ate. The former division of the U.S. Department of
Homeland Security responsible for coordinating relief
and recovery efforts and for developing and coordi
nating plans to prevent terrorism and to minimize
risks of danger from natural disasters. -The Direc
torate included the Federal Emergency Management
Agency and also coordinated efforts with the Strategic
National Stockpile and the National Disaster Medical
System from the Department of Health and Human
Services, the Nuclear Incident Response Team from
the Department of Energy, the Domestic Emergency
Support Teams from the Department of Justice, the
National Domestic Preparedness Office ofthe Federal
Bureau ofInvestigation, and state and local emergency
responders. It was abolished in July 2005.-Abbr. EPR.
[Cases: United States (;=:'82(5).]
emergency protective order. See PROTECTIVE ORDER.
emergency search. See SEARCH.
emergency-treatment doctrine. See EMERGENCY
DOCTRINE (2).
emerita. See EMERITUS.
emeritus. (18c) An honorary title conferred on a former
officer or professor who has honorably retired, usu. after
serving for an extended period well beyond the norm.
The term is loosely used as an adjective meaning
"honored," but it is not a synonym for "
"retired," or "immediate past" (as in "immediate past
president"). Sec HONORARY. PI. emeriti. Fem. emerita.
Fern. pI. emeritae.
emigrant (em-a-grant), n. (18c) One who leaves his or
her country for any reason with the intent to establish
a permanent residence elsewhere. Cf. IMMIGRANT.
emigrant agent. See AGENT (2).
emigration (em-;:l-gray-sh,m), n. (17c) The act ofleaving
a country with the intent not to return and to reside
elsewhere. Cf. IMMIGRATION. -emigrate, vb.
"Emigration is usually defined as the voluntary removal
of an individual from his home State with the intention of
residing abroad. However, not all emigration is voluntary;
there sometimes exists forced emigration, even mass emi
gration. Emigration may also be due to flight for political
reasons or expulsion. One then speaks of refugees or
exiles." Paul Weis, "Emigration," in 2 Encyclopedia ofPublic
International Law 76 (1995).
601
emigre (em-<l-gray or em-d-gray), n. [French] (18c) One
who is forced to leave his or her country for political
reasons. Also spelled emigre.
eminence (em-;t-ndnts). (17c) (usu. cap.) Eccles. law. An
honorary title given to cardinals ofthe Roman Catholic
Church. Until the pontificate of Urban VIII, cardi
nals were called illustrissimi and reverendissimi.
eminent domain. (18c) The inherent power ofa govern
mental entity to take privately owned property, esp.
land, and convert it to public use, subject to reasonable
compensation for the taking. Also (rarely) termed
compulsory purchase; (in Scots law) compulsory surren
der. See CONDEMNATION (2); EXPROPRIATION; TAKING
(2). [Cases: Eminent Domain 1,69.]
"The term 'eminent domain' is said to have originated with
Grotius, the seventeenth century legal scholar. Grotius
believed that the state possessed the power to take or
destroy property for the benefit of the social unit, but he
believed that when the state so acted, it was obligated
to compensate the injured property owner for his losses.
Blackstone, too, believed that society had no general power
to take the private property of landowners, except on the
payment of a reasonable price. The just compensation
clause of the fifth amendment to the Constitution was
built upon this concept of a moral obligation to pay for
governmental interference with private property.... No
provision for the power of eminent domain appears in the
federal Constitution. The Supreme Court, however, has
said that the power of eminent domain is an incident of
federal sovereignty and an 'offspring of political necessity.'
The Court has also noted that the fifth amendment's limita
tion on taking private property is a tacit recognition that
the power to take private property exists." John E. Nowak
& Ronald D. Rotunda, Constitutional Law 11.11, at 424-25
(4th ed. 1991) (quoting Bauman v. Ross, 167 U.S. 548, 574,
17 S.Ct. 966, 976 (1897.
Eminent Domain Clause. The Fifth Amendment provi
sion providing that private property cannot be taken
for public use without just compensation. See TAKINGS
CLAUSE. [Cases: Eminent Domain
emissary. (17c) One sent on a special mission as another's
agent or representative, esp. to promote a cause or to
gain information.
emit, vb. (16c) 1. To give off or discharge into the air
<emit light>. 2. To issue with authority <emit a new
series of currency>. -emission, n.
emolument (i-mol-y;t-m<lnt), n. (15c) (usu. pl.) Any
advantage, profit, or gain received as a result of one's
employment or one's holding ofoffice. [Cases: Officers
and Public Employees (::::'94.]
Emoluments Clause. (1991) 1. The clause of the United
States Constitution preventing members of Congress
from continuing to serve in Congress after accepting
an appointment to another federal office, and also pro
hibiting such an appointment if the office was created
or its emoluments increased while the Senator or Rep
resentative served in Congress. U.S. Const. art. I, 6,
d. 2. -Also written Emolument Clause. 2. FOREIGN
EMOLUMENTS CLAUSE.
e-money. See MONEY.
emotional abuse. See ABUSE. emphasis added
emotional distress. (1933) A highly unpleasant mental
reaction (such as anguish, grief, fright, humiliation,
or fury) that results from another person's conduct;
emotional pain and suffering. -Emotional distress,
when severe enough, can form a basis for the recovery
of tort damages. Also termed emotional harm;
mental angUish; mental distress; mental suffering. See
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS. Cf.
mental cruelty under CRUELTY. [Cases: Damages
57.1-57.60.]
"Emotional distress passes under various names, such
as mental suffering, mental anguish, mental or nervous
shock, or the like. It includes all highly unpleasant mental
reactions, such as fright, horror, grief, shame, humiliation,
embarrassment, anger, chagrin, disappointment, worry,
and nausea. It is only where it is extreme that the liability
arises. Complete emotional tranquility is seldom attain
able in thiS world, and some degree of transient and trivial
emotional distress is a part of the price of living among
people. The law intervenes only where the distress inflicted
is so severe that no reasonable man could be expected to
endure it. The intensity and the duration of the distress are
factors to be considered in determining its severity. Severe
distress must be proved; but in many cases the extreme
and outrageous character of the defendant's conduct is
in itself important evidence that the distress has existed:'
Restatement (Second) of Torts 46 cmt. j (1965).
emotional harm. See EMOTIONAL DISTRESS.
emotional incapacity. 1. The inability to control one's
emotions or express appropriate emotions because ofa
mental disorder. 2. Hist. Evidence. (Of a witness) hostil
ity or partiality rooted in bias, corruption, or interest .
At common law, an interested witness was not compe
tent to testify on grounds ofemotional incapacity. See
State v. Craft, 41 So. 550,551 (La. 1906).
emotional insanity. See INSANITY.
empanel, vb. (l5c) To swear in (a jury) to try an issue or
case. -Also spelled impanel. [Cases: Jury~ 146.]
empanelment, empaneling, n.
empaneled jury. See JURY
emparnours (em-pahr-narz), n. pl. [French] Hist. Persons
who undertook lawsuits on behalf ofothers.
emperor. (13c) 1. The title of the sovereign ruler of an
empire. 2. The chief of a confederation of states of
which kings are members . The rulers of the Roman
world adopted the deSignation emperor after the fall
ofthe republic. The title was later assumed by those
including Napoleon -who claimed to be their suc
cessors in the Holy Roman Empire. The sovereigns of
Japan and Morocco are often called emperors, as were,
in Western speech, the former sovereigns ofTurkey and
China. The title denotes a power and dignity superior to
that ofa king. It appears to be the appropriate style of
the executive head of a federal government constructed
on the monarchial principle and comprising several
distinct kingdoms or other quasi-sovereign states, as
with the German empire from 1871 to 1918.
emphasis added. (1945) A citation Signal indicating
that the writer quoting another's words has italicized
602 emphyteusis
or otherwise emphasized some ofthem. Also termed '
emphasis supplied.
emphyteusis (em-fi-t[y]oo-sis), n. [Greek "implanting"]
(16c) Greek, Roman & civil law. A contract bv which
one person delivered to another (the emphyteuta) a
tract ofland, either in perpetuity or for a long period
oftime, |
another (the emphyteuta) a
tract ofland, either in perpetuity or for a long period
oftime, in exchange for the obligation to cultivate the
land and to pay annual rental. In Roman law, the land
was state-owned (ager vectigalis). In the 5th century,
emphyteusis was officially recognized as distinct from
ownership or a lease. The land's lessee or tenant, called
an emphyteuta, had to bear any burdens imposed on
the land. Although the emphyteusis was alienable, the
owner had to consent to the sale. (Cf. SUPERFICIARIUS.)
Unlike a usufruct, emphyteusis did not terminate with
the death of the emphyteuta. Perpetual emphyteusis was
abolished in the 18th century.
emphyteuta (em-fi-t[yJoo-t;:i), n. [Latin] (18c) Roman
& civil law. The person to whom an emphyteusis is
granted; the lessee or tenant under a contract of emphy
teusis. See FEE FARM.
emphyteutic (em-fi-t[y]oo-tik), adj. [Latin] (l7c) Civil
law. Founded on, growing out of, or having the charac
ter of an emphyteusis; held under an emphyteusis.
empire. (14c) The jurisdiction of an emperor; the region
over which an emperor's dominion extends.
empirical (em-pir-i-bl), adj. (16c) Of, relating to, or
based on experience, experiment, or observation !
<the expert's theory was not supported by empirical
data>. Also termed empiric.
emplazamiento (em-plah-zah-myen-toh), n. [Spanish]
Spanish law. A summons; esp., a court-issued citation
requiring the addressee to appear at a designated time
and place.
emplead. See IMPLEAD.
emploi (om-plwah), n. [French] French law. Equitable
conversion. -When property covered by the
dotal is sold, the purchaser must ensure that the sale
proceeds are reinvested for the wife's benefit. See regime
dotal under REGIME.
employ, vb. (i5c) 1. To make use of. 2. To hire. 3. To
use as an agent or substitute in transacting business.
4. To commission and entrust with the performance
of certain acts or functions or with the management
of one's affairs.
employee. (1822) A person who works in the service of
another person (the employer) under an express or
implied contract ofhire, under which the employer has
the right to control the details of work performance.
Also spelled employe. Cf. AGENT (1); INDEPENDENT CON
TRACTOR. [Cases: Labor and Employment
borrowed employee. (1932) An employee whose services
are, with the employee's consent, lent to another
employer who temporarily assumes control over the
employee's work. -Under the doctrine ofrespondeat
superior, the borrowing employer is vicariously liable
for the borrowed employee's acts. But the borrowing employer may also be entitled to assert immunity
under workers' -compensation laws. -Also termed
borrowed servant; loaned employee; loaned servant;
employee pro hac vice; special employee. See RESPON
DEAT SUPERIOR. [Cases; Labor and Employment
26; Workers' Compensation
probationary employee. A recently hired employee
whose ability and performance are being evaluated
during a trial period of employment.
statutory employee. Workers' compensation. An
employee who is covered, or required to be covered, by
the employer's workers' compensation insurance and
who therefore has no independent tort claim against
the employer for unintentional injuries suffered on
the job. See statutory employer under EMPLOYER.
[Cases: Workers' Compensation 2161.]
employee benefit plan. (1942) A written stock-pur
chase, savings, option, bonus, stock-appreciation,
profit-sharing, thrift, incentive, pension, or similar
plan solely for employees, officers, and advisers of a
company. -The term includes an employee-welfare
benefit plan, an employee-pension benefit plan, or a
combination ofthose two. See 29 USCA 1002(3). But
the term excludes any plan, fund, or program (other
than an apprenticeship or training program) in which
no employees are plan participants. Often shortened
to plan. Cf. PENSION PLAN.
defined-benefit plan. A plan established and main
tained by an employer primarily to provide system
atically for the payment of definitely determinable
benefits to employees over a period ofyears, usu. for
life, after retirement; any pension plan that is not a
defined-contribution plan . Retirement benefits
under a defined benefit plan generally are based on a
formula that included such factors as years ofservice
and compensation. If the trust funding the plan
lacks sufficient assets to pay the promised benefits,
ERISA requires the employer to cover the shortfall.
29 USCA 1002(35). Cf. defined contribution plan.
[Cases: Labor and Employment
defined-contribution plan. Under ERISA, an employee
retirement plan in which each participant has a
separate account -funded by the employee's con
tributions and the employer's contributions (usu. in
a preset amount) -and each participant's benefits
are based solelv on what has accumulated in the
participant's ac~ount. 29 USCA 1002(34). -Also
termed defined-contribution pension plan; individual
account plan. Cf. defined~benefit plan. [Cases: Labor
and Employment ~423.J
disability retirement plan. 1. A plan that is invoked
when a covered person is disabled from working
to normal retirement age. 2. A plan that provides
increased benefits ifa person retires because ofa dis
ability. [Cases: Labor and Employment
employee-stock-ownership plan. A type of profit
sharing plan that invests primarily in the employer's
stock. _ Employee-stock-ownership plans receive
603
special tax benefits and can borrow money to fund
employee stock purchases, which makes them a useful
corporate finance tooL IRC (26 USCA) 4975(e)(7). -
Abbr. ESOP. [Cases: Internal RevenueC:>3578, 4297;
Labor and Employment (~491(2).1
excess-benefit plan. An employee benefit plan main
tained by an employer solely for the purpose of pro
viding benefits for certain employees in excess of
limitations on contributions and benefits imposed
by the Internal Revenue Code. 29 USCA 1002(36).
[Cases: Labor and Employment ?420.J
40I(k) plan. A retirement and savings plan that allows
an employee to elect to have a portion of his or her
pretax salary contributed to a defined contribution
plan. Employers often match all or part of the
employee's contributions. Employees usu. can choose
investments from a list of options. IRC (26 USCA)
40l(k). [Cases: Internal Revenue
403(b) plan. A retirement plan for employees ofpublic
educational systems and certain tax-exempt organi
zations that is funded by pretax employee contribu
tions much like a 40l(k) plan, but may also provide for
employer contributions. IRC (26 USCA) 403(b).
Also termed tax-sheltered annuity; tax-deferred
annuity. [Cases: Internal Revenue (;:::> 3587.]
457plan. A type of deferred-compensation plan for
employees of state and local governments and tax
exempt organizations that operates much like a
401(k) plan, but (except for governmental plans) is
unfunded. IRC (26 USCA) 457. [Cases: Labor and
Employment ?417.]
governmental plan. Under ERISA, an employee benefit
plan established or maintained for its employees by
the federal government, state or local governments,
or their agencies or instrumentalities. 29 USC A
1002(32). If a collective-bargaining agreement
between a labor union and a governmental entity
includes a benefit plan, that plan may be a governmen
tal plan if it is funded by and covers only employees of
the governmental entity. -Also termed governmen
tal employee benefit plan; government plan.
individual account plan. See defined-contribution
plan.
Keogh plan. See KEOGH PLAN.
medical-expense reimbursement plan. An arrange
ment provided by an employer to reimburse employ
ees for medical expenses, including vision and dental
expenses, that are not covered under a medical plan
available to all employees . Some plans may also be
used to substitute for health insurance, or to pay for
medical expenses in excess ofinsurance-policy limits.
IRC (26 USCA) 105. -Abbr. MERP. [Cases: Labor
and Employment
money-purchase plan. A defined-contribution plan
that provides for mandatory employer contributions
without regard to employer profits . Contributions
are frequently stated as a percentage ofemployee com
pensation. [Cases: Labor and Employment C:~")423.] employee benefit plan
nonqualified deferred-compensation plan. An
unfunded compensation arrangement, frequently
offered to executives, that defers compensation and
the recognition of its accompanying taxable income
to a later date . It is termed "nonqualified" because
it does not qualify for favorable tax treatment under
IRC (26 USCA) 40l(a). The plan avoids the restric
tions on qualified plans, esp. the limits on contribu
tions and benefits and rules against discrimination
in favor of highly compensated employees. Abbr.
NQDC. -Also termed nonqualified executive-com
pensation plan; unfunded deferred-compensation plan.
[Cases: Internal Revenue C:-:: 3596.]
"Generally, a nonqualified deferred compensation plan is
an agreement or promise by an employer to certain indio
viduals to pay compensation to those individuals at some
future date. A nonqualified plan may also be a series of
deferred compensation agreements between an employer
and certain individuals that are considered to be a plan of
benefits. These types of plans do not qualify for the special
tax treatment afforded to plans that meet the qualifica
tion requirements of Section 401(a) of the Internal Revenue
Code ...." BruceJ. McNeil, Nonqualified Deferred Compen
sation Plans 1 (1994).
pension plan. See PENSION PLAN.
profit-sharing plan. See PROFIT-SHARI~G PLAN.
qualified plan. 1. See qualified pension plan under
PENSION PLAN. 2. See qualified profit-sharing plan
under PROFIT-SHARING PLAK.
survivor-income benefit plan. An agreement between
an employer and an employee whereby the employer
agrees that ifthe employee dies before retirement, the
employer will pay a specified or determinable amount
to the employee's spouse or other designated benefi
ciary. Typically, a formula is used, so the benefit
amount may be a multiple of the employee's salary
(e.g., two times the average base pay in the three years
preceding death) or based on the length of employ
ment. -Abbr. SIB. Also written survivors-income
benefit plan. Also termed death-benefit-only plan
(abbr. DBO). [Cases: Labor and Employment C:>
428.]
retirement plan. An employee benefit plan -such
as a pension plan or Keogh plan -provided by an
employer (or a self-employed person) for an employ
ee's retirement. [Cases: Labor and Employment?
420.]
SIMPLE plan. An arrangement under which an indi
vidual retirement account or annuity is established for
each eligible employee and funded by elective pretax
employee contributions, much as with a 401(k) plan,
and certain matching or minimum employer con
tributions. The plan can be attractive to employers
because it is easier to administer than a 401(k) plan.
The name is a loose acronym for "Savings Incentive
Match Plan for Employees." IRC (26 USCA) 408(p).
[Cases: Labor and Employment (;:::>420.]
simplified employee pension plan. An arrangement
under which an individual retirement account or
annuity is established for each eligible employee and
604 employee givebacks
funded by discretionary employer contributions.
IRC (26 USCA) 408(k) . A simplified employee
pension plan operates much like a 401(k) plan, in that
the employee contributions can be made by deferred
compensation and the employer can contribute. But
the plan is attractive to small employers because it
is much easier to administer than a 401(k) plan and
gives the employer complete discretion on whether
to make an annual contribution. IRC (26 USCA)
408(k). -Abbr. SEP; SEP-IRA. [Cases: Labor and
Employment (>420.]
split-funded plan. A retirement plan combining
elements of both life-insurance and investment
plans.
target benefit plan. A money-purchase plan that sets
a "target" benefit for each participant and mandates
employer contributions determined by an actuarial
cost method designed to fund the target benefit.
unfunded deferred-compensation plan. See nonquali
fied deferred-compensation plan.
welfare plan. Under ERISA, any plan, fund, or program
established or maintained by an employer or an
employee organization for the purpose of providing
to participants or their beneficiaries any number of
potential benefits: medical, surgical, or hospital care
or benefits; benefits in the event ofsickness, accident,
disability, death or unemployment; vacation benefits;
apprenticeship or other training programs; daycare
centers; scholarship funds; prepaid legal services; or
holiday and severance benefits. 29 USC A 1002(1).
[Cases: Labor and Employment
employee givebacks. See CONCESSION BARGAINING.
employee-liability exclusion. See EXCLUSION (3).
employee pro |
. See CONCESSION BARGAINING.
employee-liability exclusion. See EXCLUSION (3).
employee pro hac vice. See borrowed employee under
EMPLOYEE.
Employee Retirement Income Security Act. A federal
statute that regulates private pension plans and
employee benefit plans and that established the Pension
Benefit Guaranty Corporation. 29 USCA 1001 et
seq. -Abbr. ERISA. [Cases: Labor and Employment
(>401.J
"ERISA was adopted in 1974 in response to highly publi
cized instances of fraud and mismanagement in employee
pension funds, which had resulted in thousands of workers
losing retirement benefits accumulated over a lifetime of
work, ERISA was intended primarily as an instrument for
regulating pensions, as its title suggests, and most of its
substantive provisions address protection of retirement
benefits. ERISA also, however, applies to employee welfare
benefit plans, and thus covers employer provided health
insurance, the dominant vehicle for private finance of
health care in the United States." Barry R. Furrow et aI.,
Health Law 2-9, at 48 (2d ed. 2000).
employee stock option. See STOCK OPTION (2).
employee-stock-ownership plan. See EMPLOYEE BENEFIT
PLAN.
Employee's Withholding Allowance Certificate. See
W-4 FORM. employer. (16c) A person who controls and directs a
worker under an express or implied contract ofhire and
who pays the worker's salary or C[ PRINCIPAl.
(1). [Cases: Labor and Employment
equal-opportunity employer. An employer who
agrees not to discriminate against any job appli
cant or employee on the basis of race, color, religion,
sex, natural origin, age, or disability. Abbr. EOE.
Civil Rights (;:::; 110.]
general employer. An employer who transfers an
employee to another employer for a limited period.
See borrowed employee under EMPLOYEE.
special employer. An employer who has borrowed an
employee for a limited period and has temporary
responsibility for and control over the employee's
work.
statutory employer. Workers' compensation. One who
employs a statutory employee. See statutory employee
under EMPLOYEE. [Cases: Workers' Compensation
employer-employee relationship. See RELATIONSHIP.
employer-identification number. See TAX-IDENTIFICA
TION NUMBER.
employers' liability. See WORKERS' COMPENSATION.
employers' -liability insurance. See INSURANCE.
employment. (15c) 1. The relationship between master
and servant. See MASTER AND SERVANT. 2. The act of
employing. 3. The state of being employed. 4. Work
for which one has been hired and is being paid by an
employer.
casual employment. Work that is occasional, irregu
lar, or for a short time -often associated with day
labor.
employment at will. Employment that is usu. under
taken without a contract and that may be terminated
at any time, by either the employer or the employee,
without cause. Also termed at-will employment;
hiring at will. [Cases: Labor and Employment
40.J
"Surprisingly, the employment at will doctrine is not an
ancient one. On the contrary, it dates only from the period
in the mid-nineteenth century that saw the transforma
tion of the employment relation from one of status to one
of contract. The relentless logic of the contract approach
dictated the rule that the employee had only such rights
as were expressly agreed to in his contract of employ
ment no more and no less. This meant that there was no
implication that an indefinite hiring would last for a year or
any other presumed period, since ifthe parties had wanted
a particular term they would have expressly agreed to it." 1
Lex K. Larson, Unjust Dismissal 1.01, at 13 (1992).
"The doctrine of employment at will prescribed that an
employee without a contract for a fixed term could be
hired or fired for any reason or no reason at all.. ,[The]
rule provided that employees categorized as 'at will' had
no legal interest in continuing job security. Whereas early
American masters had some responsibility to the public
as well as to their servants when they turned dependent
servants out on the world, under [thisl formulation, masters
could simply fire employees who had no contracts." Mark
A. Rothstein et aI., Employment Law lA, at 9-10 (1994).
605
gainful employment. Work that a person can pursue
and perform for money.
hazardous employment. High -risk work; work involv
ing extra peril. _ In the context ofworkers' compen
sation, hazardous employment often requires an
employer to carry workers'-compensation coverage
or its equivalent, regardless ofthe number ofemploy
ees.
joint employment. A job in which the essential terms
and conditions ofthe employee's work are controlled
by two or more entities, as when a company hires a
contractor to perform a task and retains control over
the contractor's employees in matters such as hiring,
firing, diScipline, conditions of employment, prom
ulgation ofwork rules. assignment ofday-to-day job
duties, and issuance ofoperating instructions.
permanent employment. Work that, under a contract,
is to continue indefinitely until either party wishes to
terminate it for some legitimate reason.
seasonal employment. An occupation possible only
during limited parts of the year, such as a summer
camp counselor, a baseball-park vendor, or a shop
ping-mall Santa.
temporary employment. Work for a specific need or
fixed duration, usu. agreed upon beforehand.
employment agency. (l9c) A business that procures, for a
fee, employment for others and employees for employ
ers. -Whether the employer or the employee pays the
fee depends on the terms ofthe agreement. See FINDER
(1). [Cases: Labor and Employment C=:::935.]
Employment and Training Administration. A unit in
the U.S. Department of Labor responsible for devel
oping plans for training dislocated and unemployed
workers, including young people and those who are
disabled; and for interpreting federal workforce-secu
rity laws as they apply to the states.
employment contract. See CONTRACT.
employment-practices-liability insurance. See INSUR
ANCE.
employment-related-practices exclusion. See EXCLU
SION (3).
Employment Standards Administration. A unit in the
U.S. Department of Labor responsible for enforCing
various laws and administering programs pertaining to
minimum-wage and overtime standards, registration
offarm-labor contractors, wage rates to be paid and the
nondiscrimination and affirmative-action programs to
be followed by government contractors and subcon
tractors, workers'-compensation programs for federal
and certain private employers, financial integrity and
the internal organizational practices oflabor unions,
and certification ofemployee protection for federally
sponsored transportation programs. _ The Administra
tion operates through four divisions that have regional
offices or administrators in various cities: the Office
of Federal Contract Compliance Programs, the Wage emptor familiae
Standards, and the Office of Workers' Compensation
Programs. Abbr. ESA.
emporium (em-por-ee-am), n. (l6c) 1. A place for whole
sale trade in commodities carried bv sea. -The term
is sometimes applied to a seaport t;wn, but properly
signifies only a particular place in such a town. 2. An
important marketplace. 3. A large retail store that sells
a wide variety ofgoods.
empresario (em-pre-sahr-ee-oh), n. [Spanish]l. Spanish
law. A businessperson; one who invests in or manages
a business; esp., a land developer. 2. Rist. A person
receiving extensive land grants as consideration for
bringing people into Mexico (esp. into what would
become Texas) and settling them on the land for the
purpose of increasing the population, developing the
country's resources, and controlling the aboriginal
peoples.
emptio (emp-shee-oh), n. [Latin "purchase"] Roman &
civil law. The act ofbuying; a purchase. Also spelled
emtio. PI. emptiones.
emptio bonorum (ba-nor-am). [Latin "purchase of
goods"] A type of forced assignment for the benefit
of creditors, involving a public sale of an insolvent
debtor's estate whereby the purchaser succeeded to all
the debtor's property, rights, and claims, and became
responsible for the debtor's debts and liabilities to an
extent fixed before the transfer.
emptio etvenditio (et ven-dish-ee-oh). [Latin "purchase
and sale"] A contract of sale. -The double name
reflects that both the buyer and seller had duties and
rights in the transaction. In Roman law, agreement
on the thing to be sold and its price were essential.
The buyer could enforce the contract by actio empti,
and the seller could enforce bv actio venditio -Also
termed emptio venditio. See VENDITIO.
emptio rei facta a pluribus ementibus (emp-shee-oh
ree-I fak-ti'l ay plnur-a-b<ls i-men-ta-bas). [Latin] Rist.
A purchase made by many buyers. La. Civ. Code art.
2450. -An emptio rei facta a pluribus ementibus did
not automatically create a partnership among the
purchasers.
emptio rei speratae (ree-I sp<:l-ray-tee). [Latin "purchase
ofa hoped-for thing"]1he purchase ofa thing not yet
in existence or not yet in the seller's possession; e.g.,
a future crop. La. Civ. Code art. 2451. -1he price
of such a purchase typically depended on the actual
yield and thus could fluctuate.
emptio spei (spee-I). [Latin "purchase of a hope"] An
emptio rei speratae in which the price is fixed, regard
less of actual gain. -Even if the future event, such
as the casting of a net, produced nothing, the buyer
had to pay.
emptio venditio. See emptio et venditio.
emptor (emp-tor or -tar), n. [Latin] Civil law. A buyer;
purchaser. -Also spelled emtor. See caveat emptor
under CAVEAT. PI. emptores.
and Hour Division, the Office of Labor-Management i emptor familiae. See FAMILIAE EMPTOR.
606 emptrix
emptrix (em[p]-trdks), n. [LatinJ Civil law. A female
buyer. -Also spelled emtrix. PI. emptrices.
empty-chair defense. See DEFE:'oISE (2).
empty-chair doctrine. See ADVERSE- INTEREST RULE.
empty-suit defense. See DEFENSE (1).
emtio. See EMPTIO.
emtor. See EMPTOR.
emtrix. See EMPTRIX.
enable, vb. To give power to do something; to make
able.
enablement. Patents. The disclosure in a patent applica
tion; spedf. the description of the subject matter clear
and complete enough to teach a person of ordinary
skill in the art how to make and use the invention.
If the artisan would still be unable to work the inven
tion without undue experimentation after reading the
description -in light ofthe information known in the
art as ofthe filing date ofthe patent application -the
patent application will be rejected for lack of enable
ment. 35 USCA 112. Cf. NONENABLE:\1ENT. [Cases:
Patents C=>99.]
enablement by deposit. See DEPOSIT (6).
enablement requirement. Patents. The rule that the
specification ofa patent application must describe the
invention so that a person with ordinary skill in the
art could make and use the invention without undue
experimentation. - A specification that meets this
requirement is referred to as enabling. Cf. ENABLING
SOURCE. [Cases: Patents
enabling act. See enabling statute under STATUTE.
enabling clause. See CLAUSE.
enabling disclosure. See DESCRIPTION (5).
enabling power. See POWER OF APPOINTMENT.
enabling source. Patents. A document that defeats the
patentability of an invention because the information
provided made it possible before the patent applica
tion was filed -for a person skilled in the art to make
the invention. Cf. ENABLEMENT REQUIREMENT.
enabling statute. 1. See STATUTE. 2. Hist. (cap.) The Lease
Act (1540), by which tenants in tail, husbands seised
in right of their wives, and others were empowered to
make leases for their lives or for 21 years. St. 32 Hen.
8, ch. 28.
enact, vb. (15c) l. To make into law by authoritative act;
to pass <the statute was enacted shortly before the
announced deadline>. 2. (Of a statute) to provide <the
statute of frauds enacts that no action may be brought
on certain types ofcontracts unless the plaintiff has a
signed writing to prove the agreement>. -enactor,
n.
enacted law. See LAW.
enacting clause. See CLAUSE.
enacting words. The statutory phraSing denoting that an
act is taking effect as law. -The most common enacting words are Be it enacted that . ... [Cases: Statutes
40.J
enactive (en-ak-tiv), adj. 07c) 1. Having the power to estab
lish a new law; capable ofenacting. 2. ENACTORY (1).
enactment, n. (18c) 1. The action or process of making
into law <enactment ofa legislative bill>. 2. A statute
<a recent enactment>.
enactor (en-ak-tClr), n. A person or body that enacts or
decrees; esp., one that establishes a new law.
enactory, (i-nak-td-ree), adj. (19c) 1. Of, relating to,
constituting |
actory, (i-nak-td-ree), adj. (19c) 1. Of, relating to,
constituting, or by an enactment; esp., instituting a
new right or duty by means ofenactment. 2. ENACTIVE
(1).
enajenacion (e-nah-hen-ah-syohn), n. [Spanish) Spanish
law. Alienation; the transfer of land.
en arere (en <}-reer). [Law French] In time past.
en autre droit (en oh-trd droyt or on noh-trd drwah).
[French] In the right of another, as when an executor
sues on behalf of the estate. -Also spelled in autre
droit. See AUTRE DROIT.
en bane (en bangk or on bongk). [Law French "on the
bench"] adv. &adj. (1863) With all judges present and
participating; in full court <the court heard the case en
banc> <an en banc rehearing>. Also spelled in banc;
in bank. Also termed in banco.
en bane sitting. See SITTING.
enbaneworthy, adj. Slang. Worthy ofbeing considered
en banc <the Fifth Circuit concluded that two ofthe
four issues are truly enbancworthy>. enbancwor
thiness, n.
en bloc (on blok or en blok), ad). & adv. [French] As a
whole; as a unit. -In parliamentary law, this term can
refer to a series of resolutions or other motions that
are disposed of with a single vote. Also termed en
grosse.
enbrever (en-bree-vdr), vb. [Law French] 1. To abbreviate.
2. To put into a schedule.
encheson (en-ehee-zdn), n. [Law French] The occasion,
cause, or reason for which something is done. Also
spelled encheason.
enclave (en-klayv or on-). (19c) lnt'llaw. An isolated part
ofa country's territory entirely surrounded by the terri
tory ofone foreign country, so that any communication
with the main part of the country must pass through
the territory of the foreign country. -Although inter
national enclaves were once common, they are now rel
atively rare; examples include Baarle-Hertog, a Belgian
enclave in the Netherlands, and Kaliningrad, a Russian
enclave between Lithuania and Poland. -Also termed
international enclave.
federal enclave. Territory or land that a state has ceded
to the United States. -Examples of federal enclaves
are military bases, national parks, federally adminis
tered highways, and federal Indian reservations. The
U.S. government has exclusive authority and
607
diction over federal enclaves. [Cases: United States
quasi-enclave. An isolated part of a country's terri
tory that, though not entirely surrounded by the ter
ritory of a foreign country, is inaccessible by way of
the country's own territory because oftopographical
features such as impassable mountains.
enclose, vb. (14c) 1. To surround or encompass; to fence
or hem in on all sides. 2. To place (something) in a
parcel or envelope. Also spelled inclose.
enclosed land. See LAND.
enclosed please find. See TRANSMITTAL LETTER.
enclosure. (ISc) 1. Something enclosed in a parcel or
envelope. 2. Land surrounded by some visible obstruc
tion; CLOSE (1). 3. An artificial fence around one's
estate. -Also spelled inclosure. [Cases: Fences
encomienda (en-koh-mee-en-dah), n. [Spanish] Spanish
law. 1. A royal grant to a private person of a certain
portion of territory in the Spanish colonies, together
with the concession of a certain number of the native
inhabitants, on the feudal principle ofcommendation.
2. A royal grant of privileges to the military orders
of Spain. 3. A mandate for a person to do a specific
commission. 4. Something given by mandate; esp., a
parceL
encourage, vb. (ISc) Criminal law. To instigate; to incite
to action; to embolden; to help. See AID AND ABET.
[Cases: Criminal Law ~.'S9(5).]
encroach, vb. (16c) 1. To enter by gradual steps or stealth
into the possessions or rights ofanother; to trespass or
intrude. 2. To gain or intrude unlawfully upon anoth
er's lands, property, or authority. Formerly also
spelled incroach. [Cases: Trespass (;::;; 1,10.]
encroachment, n. (16c) 1. An infringement of another's
rights. 2. An interference with or intrusion onto anoth
er's property <the court remedied the encroachment
by ordering the defendant to cut down the tree limb
hanging over the plaintiff's yard>. Formerly also
spelled incroachment. See TRESPASS. [Cases: Trespass
(,~12.]
encumbrance, n. (16c) A claim or liabilitythatis attached
to property or some other right and that may lessen its
value, such as a lien or mortgage; any property right
that is not an ownership interest. _ An encumbrance
cannot defeat the transfer ofpossession, but it remains
after the property or right is transferred. Also spelled
incumbrance. [Cases: Mortgages (;::;; 1; Secured Trans
actions ~)LJ -encumber, vb.
"Encumbrances are not confined to the law of property,
but pertain to the law of obligations also. Choses in action
may be mortgaged, settled in trust, or otherwise made
the subject-matter of jura in re aliena, no less than land
and chattels." John Salmond, Jurisprudence 435-36 n.(k)
(Glanville L. Williams ed .. 10th ed. 1947).
'''Encumbrance' means a right, other than an ownership
interest, in real property. The term includes a mortgage or
other lien on real property." UCC 9-102(a)(32). endorser
mesne encumbrance (meen). An intermediate encum
brance; an encumbrance that first occurred both
earlier and later than other encumbrances.
encumbrancer. (1858) One haVing a legal claim, such as
a lien or mortgage, against property.
end, n. 1. An object, goal, or purpose. 2. A result; a ter
mination point.
endangered species. See SPECIES (1).
endangering the welfare ofa child. See CHILD ENDAN
GERMENT.
endangerment, n. (17c) The act or an instance of putting
someone or something in danger; exposure to peril or
harm. See CHILD ENDANGERMENT; RECKLESS ENDAN
GERMENT. endanger, vb.
endeavor, n. (ISc) A systematic or continuous effort to
attain some goal; any effort or assay to accomplish some
goal or purpose.
endeavor, vb. (ISc) To exert physical or intellectual
strength toward the attainment of an object or goal.
en declaration de simulation (on dek-Iah-rah-syawn
d<l sim-[Y]<l-lah-syawn). [French "in order to declare
(something) a pretence"] Civil law. An action to void
a contract; esp., one brought to remove a cloud from
title and bring back, for any legal purpose, to the true
owner's estate the thing sold.
en demeure (on d..-myuur). [French "in default"] Civil
law. Ofa debtor who fails to pay on demand according
to the terms ofthe obligation.
endenizen (en-den- ..-z..n), vb. (16c) To recognize as a
legal resident; to naturalize. -Also spelled endenize;
indenizen; indenize. endenization, n.
endless-chain scheme. See PYRAMID SCHEME.
end lines. Mining law. A claim's lines, as platted or laid
down on the ground, that mark its boundaries on the
shorter dimension, where the claim crosses the vein,
in contrast to side lines, which mark the longer dimen
sion and follow the course of the vein . With reference
to the apex rule, if the claim as a whole crosses the
vein instead of following its course, the end lines will
become the side lines and vice versa. See APEX RULE.
Cf. SIDE LINES; APEX RULE. [Cases: Mines and Minerals
(;::;; 18.
endnote. (1926) A note that, instead ofappearing at the
bottom ofthe page (as a footnote does), appears at the
end of the book, chapter, or paper.
endogenous insemination. See artificial insemination by
husband under ARTIFICIAL INSEMINATION.
endorse, vb. See INDORSE.
endorsed bond. See guaranteed bond (1) under BOND
(3).
endorsee. See INDORSEE.
endorsement, n. (l6c) 1. INDORSEMENT. 2. An amend
ment to an insurance policy; a rider. [Cases: Insurance
(;::;; 1874.] endorse, vb. endorseable, adj.
endorser. See INDORSER.
608 endow
endow, vb. (l4c) 1. To give money or property to, esp. as
a source ofcontinuing or permanent income. 2. Hist.
To provide (a woman) with a dower.
endowment. (lSc) 1. A gift of money or property to an
institution (such as a university) for a specific purpose,
esp. one in which the principal is kept intact indefi
nitely and only the interest income from that principal
is used. 2. Hist. The assigning or giving of a dower to
a woman.
endowment insurance. 1. See INSURANCE. 2. See endow
ment life insurance under LIFE INSURANCE.
endowment life insurance. See LIFE INSURANCE.
endowment policy. See INSURANCE POLICY.
end position. (1964) One's legal and financial position
on the signing ofa contract, including the choices now
available, such as renewal and renegotiation.
end user. See USER (2).
Enelow-Ettelson rule (en-d-Ioh-et-dl-s;m). The defunct
doctrine that an order staying federal-court proceed
ings pending the determination ofan equitable defense
(such as arbitration) is an injunction appealable under
28 USCA 1292(a)(l) if the proceeding stayed was an
action that could have been maintained as an action
at law before the merger oflaw and equity. Enelow v.
New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310 (1935);
Ette/son v. Metropolitan Life Ins. Co., 317 U.S. 188,63
S.Ct. 163 (1942). [Cases: Federal Courts
enemy. (Bc) 1. One who opposes or inflicts injury on
another; an antagonist. 2. An opposing military force.
3. A state with which another state is at war. -Also
termed public enemy. 4. A person possessing the
nationality ofthe state with which one is at war. -Also
termed enemy subject. 5. A foreign state that is openly
hostile to another whose position is being considered.
alien enemy. See ALIEN.
public enemy. (16c) 1. A notorious criminal who is a
menace to society; esp., one who seems more or less
immune from successful prosecution. 2. ENEMY (3).
3. A social, health, or economic condition or problem
that affects the public at large and is difficult to control
<teenage smoking has been declared a public enemy
in this country>.
enemy alien. See alien enemy under ALIEN.
enemy combatant. See COMBATANT.
enemy's property. Int'llaw. Property used in illegal
commerce or trading with a public enemy, whether that
property belongs to an ally or a citizen . This term is
esp. common in prize courts. 'Ihe illegal traffic makes
the property hostile, and allows penal consequences to
attach to the property itself.
enemy subject. See ENEMY (4).
Energy, Department of. See DEPARTMENT OF ENERGY.
enfait (on fay), adv. [French] In fact; actually.
enfeoff (en-fef or en-feef), vb. (ISc) To put (a person) in
legal possession ofa freehold interest; to transfer a fief to. Formerly spelled infeoif. -Also termed feoff;
infeudate; (in Law Latin) feoffare.
enfeoffment (en-fef-m;:!nt or en-feef-), n. (l5c) 1. At
common law, the act or process oftransferring posses
sion and ownership ofan estate in land. Also termed
infeudation; infeudatio. 2. The property or estate so
transferred. 3. The instrument or deed by which one
obtains such property or estate. Also spelled infeoff
ment. Also termed feoffment; (in Scots law) infeft
ment.
enforce, vb. (l4c) 1. To give force or effect to (a law, etc.);
to compel obedience to. 2. Loosely, to compel a person
to pay damages for not complying with (a contract).
enforcement, n. (15c) The act or process of compelling
compliance with a law, mandate, command, decree,
or agreement.
extrajudicial enforcement. See SELF-HELP.
law enforcement. See LAW ENFORCEMENT.
remedial enforcement. See secondary right under
RIGHT.
sanctional enforcement. See secondary right under
RIGHT.
secondary enforcement. See secondary right under
RIGHT.
selective enforcement. See SELECTIVE ENFORCEMENT.
specific enforcement. See primary right under RIGHT.
Enforcement of Foreign Judgments Act. A uniform
law, adopted by most states, that gives the holder of
a foreign judgment essentially the same rights to levy
and execute on the judgment as the holder ofa domestic
judgment. lhe Act defines a foreign judgment as any
judgment, decree, or order (of a court in the United |
judgment. lhe Act defines a foreign judgment as any
judgment, decree, or order (of a court in the United
States or ofany other court) that is entitled to full faith
and credit in the state. See FULL FAITH AND CREDIT.
[Cases: Judgment C:::815, 823, 829.]
enforcement power. (1939) The authority by which
Congress may enforce a particular constitutional
amendment's provisions by appropriate legislation .
Enforcement power is granted to Congress under the
13th, 14th, 15th, 19th, 23rd, 24th, and 26th Amend
ments.
enfranchise, vb. (15c) 1. To grant voting rights or other
rights ofcitizenship to (a person or class). 2. To set free,
as from slavery.
enfranchisement (en-fran-chiz-m;mt or -chIz-mdnt), rI.
(16c) 1. 'The granting ofvoting rights or other rights of
citizenship to a class ofpersons. [Cases: Elections
59.] 2. The act of making free, as from slavery.
enfranchisement of copyhold. Hist. The conversion of
copyhold into freehold tenure, by (1) a conveyance of
the fee simple from the lord of the manor to the copy
holder, (2) a release by the lord ofall seigniorial rights,
or (3) a release by the copyholder to the lord ofthe copy
holder's interest in the estate. See COPYHOLD.
engage, vb. (l5c) To employ or involve oneself; to take
part in; to embark on.
609 enlarge
engagement, n. (17c) 1. A contract or agreement involv
ing mutual promises. [Cases: Contracts (;::J55.] 2. An
agreement to marry; the period after which a couple has
agreed to marry but before they do so. -Also termed
(in sense 2) betrothal; betrothment. [Cases: Breach of
Marriage Promise (;::J 1.]
engagement fee. See RETAINER (3).
engagement letter. A document identifying the scope
ofa professional's services to a client and outlining the
respective duties and responsibilities ofboth.
engagement slip. (1933) A note sent by a lawyer to a
court informing the court that the lawyer is profes
sionally engaged in a second court on a given day and
thus cannot appear before the first court on that day as
scheduled. The term is used in Pennsylvania.
engender, vb. To cause; to bring about; to occasion.
engineering, procurement, and construction contract.
See CONTRACT.
England procedure. A procedure by which after a
federal court has referred a case back to state court
under the Pullman abstention doctrine, and the
state court has adjudicated the state-court issues - a
litigant may return to federal court to have the federal
claims adjudicated. England v. Louisiana State Bd. of
Med. Examiners, 375 U.S. 411, 84 S.Ct. 461 (1964). See
Pullman abstention under ABSTENTION. [Cases: Federal
Courts (;:=>65.]
English rule. The requirement that a lOSing litigant
must pay the winner's costs and attorney's fees. -Also
termed loser-pays rule. Cf. AMERICAN RULE (1). [Cases:
Costs C-::> 194.14.]
Englishry, presentment of. PRESENTMENT OF ENG
LISHRY.
engros (on groh). [French] (18c) Total; by wholesale; IN
GROSS. -Also spelled en grosse. Cf. EN BLOC.
engross, vb. (15c) 1. Hist. To handwrite (a document, esp.
a deed) in a style characterized by large letters . This
method of writing, which was derived from ancient
court hand, was also used in transcribing wills well
into the 19th century. See COURT HAND. 2. To prepare
a copy of (a legal document, such as a deed) for execu
tion. 3. To prepare a copy of (a bill or mandate) before
a final legislative vote. 4. Hist. To buy large quantities
of (a stock or commodity) in an effort to corner the
market and control the price. 5. To absorb or fully
occupy. -Formerly also spelled ingross. Cf. ENROLL
(2). -engrossment, n.
engrossed bill. See BILL (3).
engrosser, n. L A person who engrosses legal docu
ments. 2. Hist. A person who buys large quantities ofa
commodity in an effort to control the price.
Engrosser of the Great Roll. See CLERK OF THE PIPE.
engrossing, n. Hist. The practice of buying large quan
tities of commodities or merchandise with the intent
of gaining a monopoly and selling them at a very high
price. Engrossing was a misdemeanor in England until 1834. Also termed engrossment. See CORNER
ING THE MARKET.
"Engrossing ... is the getting into one's possession, or
buying up, of corn or other dead victuals, with intent to
sell them again. This must of course be injurious to the
public, by putting it in the power of one or two rich men
to raise the price of provisions at their own discretion." 4
William Blackstone, Commentaries on the Laws ofEngland
158 (1769).
engrossment, n. (16c) L The preparation of a legal
document (such as a deed) for execution. 2. The drafting
of a resolution or bill just before a final vote on the
matter in the legislature. 3. ENGROSSING.
enhanced, adj. Made increased <because ofhis
recidivism, Monte was subject to an enhanced sentence
after his latest conviction>.
enhanced damages. See DAMAGES.
enhancement. The act of augmenting; the state of
being enhanced <the use of a deadly weapon led to an
enhancement of the sentence>.
enheritance (on-nair-ee-tahns), n. [Law French] See
INHERITANCE.
enitia pars (a-nish-ee-a pahrz). [Latin] The share of the
eldest. In English law, this describes the lot or share
chosen by the eldest of coparceners when they make a
voluntary partition. The first choice (primer election)
belongs to the eldest.
enjoin, vb. (l3c) 1. To legally prohibit or restrain by
injunction <the company was enjoined from selling
its stock>. [Cases: Injunction (;::J 1.] 2. To prescribe,
mandate, or strongly encourage <the graduating class
was enjoined to uphold the highest profeSSional stan
dards>. -Also spelled injoin. enjoinment (for sense
1), n. -enjoinder (for sense 2), n.
enjoinable, adj. Capable ofbeing prohibited by injunc
tion <an enjoinable nuisance>. [Cases: Injunction
26-105.]
enjoy, vb. (15c) To have, possess, and use (something)
with satisfaction; to occupy or have the benefit of
(property).
enjoyment, n. (16c) 1. Possession and use, esp. ofrights
or property. 2. The exercise of a right.
adverse enjoyment. (18c) The possession or use ofland
under a claim of right against the property owner.
[Cases; Easements (;::J8.]
beneficial enjoyment. (I8c) The possession and benefit
ofland or other property, but without legal title.
present enjoyment. (18c) The immediate possession
and use ofland or other property.
quiet enjoyment. (l8c) The possession ofland with the
assurance that the possession will not be disturbed
by a superior title. See covenantfor quiet enjoyment
under COVENANT (4). [Cases: Covenants (:-:::>43,65.]
en juicio (en hwee-syoh), adv. [Spanish] Judicially; in a
court oflaw.
enlarge, vb. (14c) 1. To increase in size or extend in scope
or duration <the court enlarged the time allotted for
610 enlargement of time
closing arguments>. 2. To free from custody or impris
onment <at common law, an action for escape lay when
a prisoner was wrongly enlarged>. Cf. AT LARGE.
enlargement, n.
enlargement of time. (ISc) A usu. court-ordered exten
sion of the time allowed to perform an action, esp. a
procedural one.
enlarger l'estate (en-Iahr-j.:>f l.:>-stayt). [Law French] Hist.
A release that enlarges an estate and consists ofa con
veyance of the ulterior interest to the tenant. If an
estate was held by a tenant for life or years, with the
remainder to another in fee, and jfthe one in remain
der released all rights to the tenant and his or her heirs
(through an enlarger ['estate), the tenant then held the
estate in fee.
enlisted member. Military law. A person in an enlisted
grade; a person in military service below the grade of
officer or warrant officer. [Cases: Armed Services
21.] -Also termed enlisted man.
enlistment, n. (ISc) Voluntary entry into a branch of
the armed services. [Cases: Armed Services
enlist, vb.
en masse (en mas). [French] (ISc) In a mass; in a large
group all at once; all together.
en mort mayne (en mort mayn). [French "in dead hand"]
In mortmain. See MORTMAIN.
Enoch Arden law (ee-n.:>k ahrd-.:>n). (1923) A statute that
grants a divorce or an exemption from liability so that
a person can remarry when his or her spouse has been
absent without explanation for a speclfied number of
years (usu. five or seven). This type oflaw is named
after a Tennyson poem, in which the eponymous hero,
having been shipwrecked for years on a desert island,
returns home to find that his wife has remarried. He
selflessly conceals his identity from her so that she can
remain with her new husband. -Also spelled Enoc
Arden law. See presumptive death under DEATH; ABAN
Cf. SEVEN-YEARS' ABSENCE RULE. [Cases:
Divorce Marriage n.]
enorm (i-norm), adj. (ISc) Hist. (Of a crime or other
wrong) monstrously wicked.
enormia (i-nor-mee-.:, n. [Latin] Common-law pleading.
Unlawful or wrongful acts; wrongs . This word,
esp. as part of the phrase et alia enormia ("and other
outrages"), appeared regularly in writs and declara
tions oftrespass.
enorm lesion (i-norm lee-zh.:>n). See LAESIO ENORMIS.
enormous, adj. Aggravated; excessively large <enormous
crimes>.
en owel main (en ow-al mayn). [Law French] In equal
hand.
enpleet (en-pleet), vb. Hist. See IMPLEAD.
enquete (on-ket), n. [French] Eccles. law. An examina
tion of witnesses (taken down in writing) by or before
an authorized judge for the purpose of gathering testimony to be used in a trial. Also termed enque$t
(on[g]-kwes[t]).
en recouvrement (on ray-koo-vr.:>-mon). [French "for
purpose of recovery"] French law. An indorsement on
a bill ofexchange that does not transfer the property in
the bill of exchange but merely gives the indorsee the
authority to recover the amount ofthe bilL
enregistrement (on-ray-zhees-tr.:>-mon), n. [French]
French law. Registration. _ This formality is performed
by a clerk who inscribes a government register with a
summary analysis of a deed or other document. The
clerk then puts a stamped or sealed note on the deed
or document, indicating the date on which it was reg
istered.
enrichment. (l7c) The receipt of a benefit. Cf. U:'>IJUST
ENRICHMENT.
enroll, vb. (I4c) 1. To register or transcribe (a legal
document, as a deed) into an official record on execu
tion. -Formerly also spelled inroll. 2. To prepare (a bill
passed by the legislature) for the executive's signature.
Cf. ENGROSS. [Cases: Statutes
enrolled, adj. Registered; recorded.
enrolled agent. One who, though neither a certified
public accountant nor an attorney, has been admitted
to practice before the IRS, either by passing an exami
nation or by working for the IRS in a technical area for
at least five years. The enrolled agent is one of four
types ofpersons who are allowed to practice before the
IRS, the other three being attorneys, certified public
accountants, and persons who are admitted to repre
sent either themselves or others in a particular case.
[Cases: Internal Revenue ~~4444.1
enrolled bill. See BILL (3).
enrolled-bill rule. (1914) The conclusive presumption
that a statute, once formalized, appears precisely as the
legislature intended, thereby preventing any challenge
to the drafting ofthe bill. [Cases: Statutes <::=,283(2).]
"Under the 'enrolled bill rule,' an enrolled bill, properly
authenticated and approved by the governor, is conclusive
as to regularity of its enactment. Ordinarily, the courts will
not go behind the enrolled bill to determine its validity.
The supreme court can look behind the enrolled bill only
to determine whether the constitutional mandate relative
to vote and journal entry upon the final passage have been
complied with." National Conference of State Legislatures,
Mason's Manual of Legislative Procedure 702, at 497
(2000).
enrollment, n. The act of recording or registering.
Also spelled (archaically) inrollment.
enrollment of vessels. Maritime law. The recording |
registering.
Also spelled (archaically) inrollment.
enrollment of vessels. Maritime law. The recording
and certification of vessels used in coastal or inland
navigation, as distinguished from the "registration" of
vessels used in foreign commerce . Enrollment and
registry are used to distinguish certificates granted
to two classes of vessels. Enrollment evidences the
national character of a vessel engaged in coasting
trade or home traffic; registry is used to declare the
nationality of a vessel engaged in foreign trade. Cf.
REGISTRY (2). [Cases: Shipping ~J6.]
611
Enrollment Office. Hist. A department of the Court of
Chancery responsible for storing enrolled deeds and
judgments. The Enrollment Office was abolished in
1879; its duties were transferred to the Central Office.
en route (en or on root). [French] On the way; in the
course oftransportation or travel.
enschedule, vb. Archaic. To insert in a list, account, or
writing.
enseal, vb. Archaic. To seal (a document).
enserver (en-s;)r-v;:Jr), vb. French] To make subject
to a service or servitude.
ens legis (enz lee-jis). [Law Latin] A creature of the law;
an artificial being as opposed to a natural person. -The
term describes an entity, such as a corporation, that
derives its existence entirely from the law.
entail, n. (14c) A fee abridged or limited to the owner's
issue or class of issue rather than descending to all
the heirs. See BARRING OF ENTAIL; FEE TAIL. -Also
termed (in Scots law) tailzie. [Cases: Estates in Property
-entailable, adj.
"Entail is fee entailed, viz; abridged, limited, and tied to
certain conditions at the will of the donor; where lands
are given to, or settled on others." The Pocket Lawyer and
Family Conveyancer 97 (3d ed. 1833).
quasi-entail. An estate pur autre vie that is granted
to a person and the heirs of the person's body.
The interest so granted is not properly an estate-tail
(because it is not granted by inheritance), but it is
similar enough that the interest will go to the heir
of the body as special occupant during the life of the
cestui que vie, in the same manner as an estate of
inheritance would descend iflimited to the grantee
and the heirs ofhis body.
entail, vb. (l4c) 1. To make necessary; to involve <respond
ing to this onerous discovery will entail countless hours
of work>. 2. To limit the inheritance of (an estate) to
only the owner's issue or class of issue, so that none of
the heirs can transfer the estate <the grantor entailed
the property through a so-called "tail female">. See FEE
TAIL. [Cases: Wills (:';::~.)604.] -entailable, adj.
entailed, adj. Settled or limited to specified heirs or in
tail <entailed gifts>.
entailed estate. See FEE TAIL.
entailed interest. See INTEREST (2).
entailment, n. 1. The act of entailing an estate. 2. An
estate so entailed.
entencion (en-ten-sh~n), n. [Law French] Hist. A plain
tiff's count or declaration.
entendment. Archaic. See INTENDMENT.
entente (ahn-tahnt). [French "intent, understanding"]
(19c) Int'llaw. 1. An understanding that two or more
nations have for carrying out a common policy or
course ofaction. An entente is looser than an alliance
but stronger than the nations' merely haVing good rela
tions. 2. The nations having such an understanding. Cf.
ALLIANCE; DETENTE. enticement
enter, vb. (13c) 1. To come or go into; esp., to go onto
(real property) by right of entry so as to take posses
sion <the landlord entered the defaulting tenant's
premises>. 2. To put formally before a court or on the
record <the defendant entered a plea of no contest>.
3. To become a party to <they entered into an agree
ment>. See ENTRY.
enterceur (en-t~r-S<lr), n. [Law French) A party claiming
goods; one who has placed goods in the hands of a third
party.
enterpleder. Archaic. See INTERPLEADER (1).
enterprise, n. (lSc) 1. An organization or venture, esp.
for business purposes.
governmental enterprise. An enterprise undertaken
by a governmental body, such as a parks department
that creates a public park. Also termedgovernrnent
enterprise.
2. Under federal anti-racketeering law, an individual,
partnership, corporation, association, union, other
legal entity, or group of individuals associated in fact,
although not a legal entity . The enterprise must be
ongoing and must exist as an entity separate from the
allegedly illegal activity that it engages in. 18 USCA
1961(4). See RACKETEER INFLUENCED AND CORRUPT
ORGANIZATIONS ACT. [Cases: Racketeer Influenced
and Corrupt Organizations C=:>33.] 3. One or more
persons or organizations that have related activities,
unified operation or common control, and a common
business purpose . Under the Fair Labor Standards
Act, an employee who is employed by an enterprise is
entitled to minimum-wage and overtime benefits. 29
USCA 201 et seq.
enterprise goodwill. See GOODWILL.
enterprise liability. See LIABILITY.
enterprise organization. See BUSINESS ENTERPRISES.
enterprise value. See VALUE (2)
entertain, vb. (ISc) 1. To bear in mind or consider; esp.,
to give judicial consideration to <the court then enter
tained motions for continuance>. 2. To amuse or please.
3. To receive (a person) as a guest or provide hospitality
to (a person). 4. Parliamentary law. To recognize and
state (a motion); to receive and take into consideration
<the chair will entertain the motion>.
entertainment expense. See EXPENSE.
entertainment law. (I953) The field of law dealing
with the legal and business issues in the entertain
ment industry (such as film, music, and theater), and
involving the representation of artists and producers,
the negotiation of contracts, and the protection of intel
lectual-property rights.
entice, vb. (14c) To lure or induce; esp., to wrongfully
solicit (a person) to do something.
enticement, n. (l4c) 1. The act or an instance of wrong
fully soliciting or luring a person to do something. 2.
Hist. The tort of inducing a man's wife to leave him
612 enticement of a child
or to remain away from him against his will. [Cases:
Seduction (;=1-26.]
enticement ofa child. Criminal law. The act or offense
of inviting, persuading, or attempting to persuade a
child to enter a vehicle, building, room, or secluded
place with the intent of committing an unlawful sexual
act against the child. -Often shortened to enticement.
[Cases: Infants (;=13.]
enticement of a parent. Rare. Torts. The tortious inter
ference with a child's rights and interests in maintain-
the parent-child relationship, usu. caused by a third
person who induces a parent to abandon the child .
Actions based on enticement, where they are recog
nized, are rarely successful because many states do not
recognize a child's legal right to a parent's consortium
or affection.
entire, adj. 1. Whole; complete in all its parts. 2. Not
divisible into parts.
entire-agreement clause. (1960) 1. INTEGRATION CLAUSE.
2. A provision in an insurance contract stating that the
entire agreement between the insured and insurer is
contained in the contract, often including the appli
cation (if attached), declarations, insuring agreement,
exclusions, conditions, and endorsements. -Also
termed entire-contract clause. [Cases: Insurance
1838, 1856.]
entire benefit. See entire use under USE (4).
entire blood. Seefull blood under BLOOD.
entire-contract clause. See ENTIRE-AGREEMENT
CLAUSE.
entire-controversy doctrine. (1970) The principle that a
plaintiff or defendant who does not assert all claims or
defenses related to the controversy in a legal proceed
ing is not entitled to assert those claims or defenses in
a later proceeding. Also termed single-controversy
doctrine. Cf. compulsory counterclaim under COUN
TERCLAIM; RES JUDICATA (2). [Cases: Action
Judgment (;=591.]
entire day. See DAY.
entire interest. See INTEREST (2).
entire-output contract. See output contract under
CONTRACT.
entire tenancy. See TENANCY.
entirety (en-tI-af-tee). (l6c) 1. lhe whole, as opposed to
a moiety or part. 2. Something (such as certain judg
ments and contracts) that the law considers incapable
of being divided into parts.
entirety, tenancy by the. See estate by entirety under
ESTATE (1).
entirety clause. Oil & gas. A mineral-lease or deed pro
vision specifying that royalties must be apportioned if
the property is subdivided after the lease is granted .
For the lessee, the clause makes it clear that the lessee's
duties will increase if the lessor transfers a part of the
leased premises. For the lessor, the clause avoids the nonapportionment rule. [Cases: Mines and Minerals
<::::=>79.1(3).]
entire use. See USE (4).
entitle, vb. (14c) l. To grant a legal right to or qualify
for. 2. Eccles. law. To ordain as a minister. Formerly
also spelled intitle.
entitlement. (19c) An absolute right to a (usu. monetary)
benefit, such as social security, granted immediately
upon meeting a legal requirement. lCases: Social
Security and Public Welfare (;=4.10.]
entitlement program. A government program guaran
teeing certain benefits, such as financial aid or gov
ernment-provided services, to people or entities that
meet the criteria set by law. Some examples of enti
tlement programs are unemployment benefits, Social
Security, food stamps, and agricultural price-support
plans. Qualified beneficiaries have an enforceable right
to participate in the programs. [Cases: Social Security
and Public Welfare ~~4.1O.1
entity. An organization (such as a business or a gov
ernmental unit) that has a legal identity apart from its
members or owners.
corporate entity. A corporation's status as an organiza
tion existing independently of its shareholders . As
a separate entity, a corporation can, in its own name,
sue and be sued, lend and borrow money, and buy,
sell, lease, and mortgage property. lCases: Corpora
tions C:") 1.3.)
public entity. A governmental entity, such as a state
government or one of its political subdivisions.
entity assumption. (1972) The presumption that a
business is a unit separate from its owners and from
other firms.
entity theory of partnership. (1916) The theory that a
partnership is an entity with a legal existence apart
from the partners who make it up . Under the Uniform
Partnership Act, "[a] partnership is an entity distinct
from its partners." UPA 201 (1994). Cf. AGGREGATE
THEORY OF PARTNERSHIP. [Cases: Partnership (;=
63.J
entrapmeut, n. (1899) l. A law-enforcement officer's or
government agent's inducement ofa person to commit
a crime, by means of fraud or undue persuasion, in an
attempt to later bring a criminal prosecution against
that person. [Cases: Criminal Law 2. The
affirmative defense of having been so induced . To
establish entrapment (in most states), the defendant
must show that he or she would not have committed
the crime but for the fraud or undue persuasion.
entrap, vb.
"Entrapment, so-called, is a relatively simple and very
desirable concept which was unfortunately misnamed,
with some reSUlting confusion. It is socially desirable for
criminals to be apprehended and brought to justice. And
there is nothing whatever wrong or out of place in setting
traps for those bent on crime, provided the traps are not
so arranged as likely to result in offenses by persons other
than those who are ready to commit them. What the State
cannot tolerate is having crime instigated by its officers
613 entry on the roll
who are charged with the duty of enforcing the law ....
Obviously 'entrapment' is not the appropriate word to
express the idea of official investigation of crime, but it is
so firmly entrenched that it seems wiser to accept it with
due explanation than attempt to supplant it ...." Rollin
M. Perkins & Ronald N. Boyce, Criminal Law 1161 (3d ed.
1982).
derivative entrapment. Entrapment in which the
government uses a private person, acting either as
an agent of the government or as an unwitting par
ticipant, to induce the subject of the entrapment to
commit a crime. [Cases: Criminal LawC=>37(5).]
objective entrapment. Entrapment as judged by
focusing on egregious law-enforcement conduct, not
on the defendant's predisposition. [Cases: Criminal
Law C=>37(2.l).]
sentencing entrapment. Entrapment of a defendant
who is predisposed to commit a lesser offense but
who is unlawfully induced to commit a more serious
offense that carries a more severe sentence. -Also
termed sentence-factor manipulation.
entrebat (on-trd-ba), n. [Law French] An intruder or
interloper.
entrepOt (on-trd-poh), n. [French] (18c) French law. A
building or place where goods |
t (on-trd-poh), n. [French] (18c) French law. A
building or place where goods from abroad may be
deposited and from which those goods may then be
exported to another country without paying a duty.
entrepreneur (on-trd-prd-n;)r or -noor), n. (l9c) One
who initiates and assumes the financial risks of a new
enterprise and who usu. undertakes its management.
entrepreneurial rights. See NEIGHBORING RIGHTS.
entrust, vb. (l6c) To give (a person) the responsibility
for something, usu. after establishing a confidential
relationship. -Also spelled (archaically) intrust. See
NEGLIGENT ENTRUSTMENT. -entrustment, n.
entrusting, n. Commercial law. The transfer of posses
sion ofgoods to a merchant who deals in goods of that
type and who may in turn transfer the goods and all
rights to them to a purchaser in the ordinary course
of business. UCC 2-403(2). [Cases: Sales C=>234(7).]
entry, n. (Bc) 1. The act, right, or privilege of entering real
property <they were given entry into the stadium>.
forcible entry. See FORCIBLE ENTRY.
lawful entry. (17c) 1. The entry onto real property by
a person not in possession, under a claim or color
of right, and without force or fraud. 2. The entry
of premises under a search warrant. See SEARCH
WARRANT.
open entry. (l8c) A conspicuous entry onto real
property to take possession; an entry that is neither
clandestine nor carried out by secret artifice or strata
gem and that (by law in some states) is accomplished
in the presence oftwo witnesses.
reentry. See REENTRY.
unlawful entry. (l7c) 1. The crime ofentering another's
real property, by fraud or other illegal means, without
the owner's consent. Cf. TRESPASS (1). 2. An alien's crossing of a border into a country without proper
documents. [Cases: Aliens, Immigration, and Citi
zenship C=>771.]
2. An item written in a record; a notation <Forney
made a false entry in the books on March 3>.
blind entry. An accounting entry that indicates only
the debited and credited amounts without any expla
nation.
compound journal entry. A journal entry requiring
more than one debit and credit (as when revenue is
received partly in cash and partly in securities).
journal entry. An entry in an accounting journal of
equal debits and credits, with occasional explanations
of the recorded transactions.
3. The placement of something before the court or on
the record. 4. Copyright. The deposit of a title of work
with the Register of Copyrights to secure its protec
tion. [Cases: Copyrights and Intellectual PropertyC=>
50.10.] 5. Immigration. Any entrance of an alien into
the United States, whether voluntary or involuntary.
[Cases: Aliens, Immigration, and Citizenship C=>220,
251, 771.] 6. Criminal law. The unlawful coming into
a building to commit a crime. [Cases: Burglary C=>
9(2).]
entry, right of. See POWER OF TERMINATION.
entry, writ of. See WRIT OF ENTRY.
entry ad communem legem (ad b-myoo-ndm lee-jdm).
[Latin] Hist. 1. Entry at common law. 2. AD COMMUNEM
LEGEM.
entry ad terminum qui praeteriit (ad t;)r-md-ndm kWI
pri-ter-ee-it). See AD TERMINUM QUI PRAETERIIT.
entry fiction. The assumption, for purposes ofimmigra
tion and deportation proceedings, that an excludable
alien is to be treated as ifdetained at the border despite
his or her physical presence in the United States.
entry for marriage in speech. See causa matrimonii
praelocuti under CAUSA (1).
entry in casu consimili (en-tree in kay-s[y]oo kdn-sim
d-lr). [Latin] See CASU CONSIMILI.
entryman (en-tree-mdn), n. Archaic. A person who
enters public land and stakes a claim with the inten
tion ofsettling.
entry ofjudgment. (l7c) The ministerial recording of a
court's final decision, usu. by noting it in a judgment
book or civil docket. Cf. RENDITION OF JUDGMENT.
[Cases: Federal Civil Procedure C=>262l; Judgment
C=>270-284.]
entry on the roll. Hist. 1. A clerk's notation on a parch
ment roll of the proceedings and issues in a particular
case. Before parties began submitting written plead
ings, they would appear (in person or through counsel)
in open court and state their respective contentions
orally until they settled on the issue or precise point in
dispute. During the progress of these oral statements,
an appointed officer of the court would make minutes
of the various proceedings on a parchment roll that
then became the official record of the suit. Even after
the practice of oral pleadings had fallen into disuse,
proceedings continued to be entered "on the roll." This
practice was abolished early in the 19th century. 2. A
future interest created in a transferor who conveys an
estate on condition subsequent.
enumerate (i-n[y]oo-m<J-rayt), vb. To count off or deSig
nate one by one; to list. -enumeration, n.
enumerated motion. See MOTION (1).
enumerated power. See POWER (3).
enumerator. A person appointed to collect census papers
or schedules.
enunciate (i-nelll-see-ayt), vb. (17c) 1. To state publicly;
to announce or proclaim <the court enunciated a
new doctrine yesterday>. 2. To articulate or pro
nounce <enunciate your syllables more clearly when
you speak>. enunciation, n. -enunciable, adj.
enunciator, n.
enure. See INURE.
en ventre sa mere (on von-tr<l sa mair). [Law French "in
utero"] (18c)(Of a fetus) in the mother's womb <child
en ventre sa mere>. _ This phrase refers to an unborn
child, usu. in the context ofa discussion of that child's
rights. If the child is en ventre sa mere at the time of a
decedent's death and is subsequently born alive, the
child is treated as haVing been in existence at the time
ofthe decedent's death for purposes ofinheritance.
Also spelled in ventre sa mere. See VENTER.
"An infant in ventre sa mere, or in the mother's womb, is
supposed in law to be born for many purposes." 1 William
Blackstone, Commentaries on the Laws of Eng/and 126
(1765).
en vie (on vee). [Law French "in life"] Alive.
environmental audit. See AUDIT.
environmental crime. (1972) Environmental law. A
statutory offense involving harm to the environment,
such as a violation of the criminal provisions in the
Clean Air Act Amendments of 1970, the Federal Water
Pollution Control Act of 1972 (commonly called the
Clean Water Act), or the Endangered Species Act of
1973. -Although the most Significant environmental
crime statutes were passed in the 19705, they date back
to the late 19th century, with statutes such as the Pure
Food and Drug Act of 1896 and the assorted statutes
that ultimately became the Rivers and Harbors Act of
1899. -Also termed crime against the environment.
environmental Criminology. See CRIMINOLOGY.
environmental effect. (1967) Environmental law.
A natural or artificial disturbance of the phYSical,
chemical, or biological components that make up the
environment.
environmental-impact statement. (1971) Environmental
law. 1. A document that the National Environmental
Policy Act (42 USCA 4332(2)(c requires a federal
agency to produce for a major project or legislative
proposal so that better decisions can be made about
the positive and negative environmental effects of an undertaking. 2. In some states, a public document
used by a government agency to analyze the significant
environmental effects ofa proposed project, to identify
alternatives, and to disclose possible ways to reduce or
avoid possible environmental damage. Abbr. EIS.
Also termed environmental-impact report (EIR). [Cases:
Environmental Law 0571-615.]
environmental law. (1971) The field oflaw dealing with
the maintenance and protection of the environment,
including preventive measures such as the require
ments of environmental-impact statements, as well
as measures to assign liability and provide cleanup
for incidents that harm the environment. -Because
most environmental litigation involves disputes with
governmental agencies, environmental law is heavily
intertwined with administrative law. [Cases: Environ
mental Law
Environmental Protection Agency. An independent
federal agency in the executive branch responsible for
setting pollution-control standards in the areas ofair,
water, solid waste, pesticides, radiation, and toxic mate
rials; enforcing laws enacted to protect the environ
ment; and coordinating the antipollution efforts of state
and local governments. _ The commission was created
by Reorganization Plan No.3 of 1970. Abbr. EPA.
[Cases: Environmental Law 015.]
environmental terrorism. See ecoterrorism under TER
RORISM.
environmental tort. See TORT.
enviroterrorism. See ecoterrorism under TERRORISM.
envoy (en-voy). (17c) 1. A high-ranking diplomat sent to a
foreign country to execute a special mission or to serve
as a permanent diplomatic representative. Formerly
also termed envoy extraordinary. 2. A messenger or
representative.
envoy extraordinary. Int'llaw. 1. A person who heads
a legation rather than an embassy. -In current usage,
the term is honorific and has no special significance.
2. Hist. ENVOY (1).
envoy plenipotentiary. See ambassador plenipotentiary
under AMBASSADOR.
eo die (ee-oh dI-ee). [Latin] On that day; on the same
day.
EOE. abbr. 1. See equal-opportunity employer under
EMPLOYER. 2. Errors and omissions excepted. -This
phrase is sometimes appended to an account stated to
allow for slight errors. See errors-and-omissions insur
ance under INSURANCE.
eo instante (ee-oh in-stan-tee). [Latin] At that very
instant. -Also spelled eo instanti.
eo intuitu (ee-oh in-t[y]oO-<l-too). [Latin] With or in that
view; with that intent or object.
eo ipso (ee-oh ip-soh). [Latin] By that very act.
eo loci (ee-oh loh-sl). [Latin] In that state; in that con
dition.
eo loco (ee-oh loh-koh). [Latin] 1. In that place. 2. In that
state; in that condition.
E.O.M. abbr. End ofmonth. This appears as a payment
term in some sales contracts.
eo nomine (ee-oh nahm-;J-nee). [Latin] (17c) By or in that
name <interest eo nomine>.
EPA. abbr. ENVIRONMENTAL PROTECTION AGENCY.
EPC. abbr. 1. EUROPEAN PATENT CONVENTION. 2. Engi
neering, procurement, and construction. See engineer
ing, procurement, and construction contract under
CONTRACT.
EPC contract. See engineering, procurement, and con
struction contract under CONTRACT.
ephemeral recording. Copyright. A temporary copy of
a work that may be created and used by a broadcaster
under a license or under a statutory exemption that
waives the need to obtain the copyright owner's per
mission. A broadcaster must still pay royalties, and
usu. must destroy the ephemeral recording within a
statutorily defined time after creation or use. [Cases:
Copyrights and Intellectual Property ~67.2.]
e pili ana (ay pee-lee ah-nah). [Hawaiian] Adjoining .
This term usu. refers to land that adjoins a stream.
epimenia (ep-;J-mee-nee-;J), n. pl. [Latin] Expenses;
gifts.
epiqueya (ep-ee-kay-ah), n. [Spanish] Spanish law. An
equitable principle calling for the benign and prudent
interpretation ofthe law according to the circumstances
of the time, place, and person.
episcopacy (i-pis-b-p;J-see), n. (17c) Eccles. law. 1. The
office of a bishop. 2. A form of church government by
bishops. 3. An office ofoverlooking or overseeing.
episcopalia (i-pis-b-pay-lee-;J), n. pl. (19c) Eccles. law.
Synodals, pentecostals, and other customary payments
from the clergy to their diocesan bishop, collected by
rural deans and forwarded to the bishop.
episcopate (i-pis-b-pit), n. (17c) Eccles. law. 1. A bish
opric. 2. The dignity or office ofa bishop.
episcoporum ecdicus (i-pis-k;J-por-;Jm ek-di-k;Js). [Latin]
Eccles. law. A bishop's proctor; a church lawyer.
episcopus (i-pis-b-p;Js), n. [Latin fro Greek] 1. Roman
law. An overseer; an inspector, such as the municipal
officer responsible for oversight of the bread and other
provisions that served as the citizens' daily food. 2. A
bishop.
episcopus puerorum (i-pis-b-p;JS pyoo-;Jr-or-;Jm).
[Latin "bishop ofthe boys"] Hist. Eccles |
p;JS pyoo-;Jr-or-;Jm).
[Latin "bishop ofthe boys"] Hist. Eccles. law. A layper
son who would, on certain feasts, braid his hair, dress
like a bishop, and act ludicrous . This English custom
outlasted several laws passed to abolish it.
episodic criminal. See CRIMINAL.
epistle (ee-pis-;Jl), n. (13c) Roman & Civil law. A rescript
replying to a magistrate or official body. See RESCRIPT
(3). epistola (i-pis-t;J-l;J), n. [Latin "letter"] Hist. A charter;
a written instrument to convey lands or to assure con
tracts. See ASSURANCE. -Also spelled epistula.
epistulae (i-pis-tyoo-lee), n. pl. [Latin "letters"] Roman
law. 1. Rescripts; esp., opinions given by the emperors
in cases submitted to them for decision. 2. Opinions
ofjuris consulti, such as N eratius, on questions oflaw
in the form ofletters to those consulting them. -Also
spelled epistolae.
EPL insurance. See employment-practices liability insur
ance under INSURANCE.
e pluribus unum (ee ploor-;J-b;Js ly]oo-n;Jm). [Latin] One
out of many. This is the motto on the official seal of
the United States and on several U.S. coins.
EPa. abbr. 1. See emergency protective order under PRO
TECTIVE ORDER. 2. EUROPEAN PATENT OFFICE.
epoch (ep-;Jk), n. 1. A period oftime marked by distinc
tive features or noteworthy events. 2. A time when a
new computation is begun; a time from which memo
rable dates are counted. -epochal (ep-;J-bl), adj.
EPR. abbr. EMERGENCY PREPAREDNESS AND RESPONSE
DIRECTORATE.
EPS. abbr. EARNINGS PER SHARE.
Equal Access Act of 1984. A federal law that prohibits
school districts receiving federal funds and allowing
extracurricular activities to be held in its facilities from
denying secondary-school students the right to meet for
religious and other purposes in public-school facilities.
20 USCA 4071. The constitutionality ofthe Act was
upheld in Board ofEducation ofWestside Community
Schools V. Mergens, 496 U.S. 226, 110 S.Ct. 2356 (1990).
[Cases: Schools ~72.]
equal-access rule. (1989) Criminal law. The doctrine that
contraband found on a defendant's premises will not
support a conviction if other persons have the same
access to the premises as the defendant. To invoke
this defense successfully, the defendant must show
that other persons did in fact have equal access to the
premises; speculative evidence that trespassers might
have come onto the premises will not bar a conviction.
[Cases: Controlled Substances ~30.]
Equal Access to Justice Act. A 1980 federal statute that
allows a prevailing party in certain actions against
the government to recover attorney's fees and expert
witness fees. Pub. L. No. 96-481, title II, 94 Stat. 2325
(codified as amended in scattered sections of5, 15, and
28 USCA). -Abbr. EAJA. [Cases: United States ~
147.]
equal and uniform taxation. See TAXATION.
Equal Credit Opportunity Act. A federal statute that
prohibits creditors from discriminating against credit
applicants on the basis ofrace, color, religion, national
origin, age, sex, or marital status with respect to any
aspect of a credit transaction. 15 USCA 1691(a)
(f). -Abbr. ECOA. [Cases: Consumer Credit ~31.]
equal degree. See DEGREE.
616 equal-dignities rule
equal-dignities rule. Agency. The doctrine that an agent
can perform all acts requiring a writing signed by the
principal only if the agent's authority is set forth in a
writing. This rule is an adjunct to the statute of frauds
and applies when one or more of the signatories to a
contract acted through an agent. lCases: Principal and
Agent Cr'--:;) 12.]
Equal Employment Opportunity Commission. An
independent federal commission that investigates
claims of employment discrimination based on race,
color, religion, sex, national origin, or age and enforces
antidiscrimination statutes through lawsuits. -It was
created by Title VII of the Civil Rights Act of 1964.
The EEOC encourages mediation and other nonli
tigious means of resolving employment disputes. A
claimant must file a charge of discrimination with
the EEOC before pursuing a claim under Title VII of
the Civil Rights Act and certain other employment
related statutes. Abbr. EEOC. [Cases: Civil Rights
(;:::::> 1503.]
equa1-footing doctrine. (I 949) The principle that a state
admitted to the Union after 1789 enters with the same
rights, sovereignty, and jurisdiction within its borders
as did the original 13 states.
equality. (l5c) The quality or state of being equal; esp.,
likeness in power or political status. See EQUAL PRO
TECTION.
"We need not repeat the burning irony of Anatole France:
'The law in its majesty draws no distinction but forbids rich
and poor alike from begging in the streets or from sleeping
in the public parks.' Equality is meaningless under unequal
conditions." Morris R. Cohen, Reason and Law 101 (1961).
political equality. The sharing ofgovernmental deci
sions in such a way that, in the setting ofgovernmen
tal policies, the preference ofeach citizen is assigned
an equal value,
equality before the law. (18c) The status or condition of
being treated fairly according to regularly established
norms ofjustice; esp., in British constitutional law, the
notion that all persons are subject to the ordinary law of
the land administered by the ordinary law courts, that
officials and others are not exempt from the general
duty of obedience to the law, that discretionary gov
ernmental powers must not be abused, and that the
task ofsuperintending the operation of law rests with
an impartial, independent judiciary.
"A number of distinct meanings are normally given to the
provision that there should be equality before the law.
One meaning is that equality before the law only connotes
the equal subjection of all to a common system of law,
whatever its content.... A second theory asserts that
equality before the law is basically a procedural concept,
pertaining to the application and enforcement of laws and
the operation of the legal system .... A third meaning
normally borne by declarations that all are equal before
the law, perhaps no more than a variant of the second, is
that State and individual before the law should be equal."
Polyvios G. Polyviou, The Equal Protection of the Laws 1-2
(1980).
equality of states. Int'llaw. The doctrine that all fully
independent nations are equal under international law. _ This doctrine does not, ofcourse, mean that all
nations are equal in power or influence, but merely that,
as nations, they all have the same legal rights.
equalization, n. (lSc) 1. The raising or lowering of
assessed values to achieve conformity with values in
surrounding areas. 2. Tax. The adjustment of an assess
ment or tax to create a rate uniform with another.
Also termed equalization oftaxes; fair and proper legal
assessment. [Cases: Taxation (~;)2621-2634.]
equalization board. (1875) A local governmental agency
responsible for adjusting the tax rates in different dis
tricts to ensure an equitable distribution of the tax
burden. Also termed board ofequalization. [Cases:
Taxation (;:::::>2621-2634.]
equalization oftaxes. See EQUALIZATION (2).
equalize, vb. To make equal; to cause to correspond or
be the same in amount or degree.
equal-knowledge rule. Georgia law. The principle that
a complainant who was at least as aware as the defen
dant of the danger has no grounds for recovery because
the consequences could have been readily avoided. Cf.
SUPERIOR-KNOWLEDGE RULE. [Cases: Negligence
506(2).]
equally divided. (I6c) 1. (Of property) apportioned per
capita not per stirpes among heirs on the testator's
death. A provision in a will calling for property to
be divided "share and share alike" has the same effect.
[Cases: Wills C::>530.] 2. (Of a court, legislature, or
other group) having the same number ofvotes on each
side ofan issue Of dispute.
equal-management rule. The doctrine that each spouse
alone may manage community property unless the
law provides otherwise. Cf. HEAD-AND-MASTER RULE.
[Cases: Husband and Wife (,~265.]
equal-opportunity employer. See EMPLOYER.
equal-or-superior-knowledge rule. See SGPERIOR
KNOWLEDGE RULE.
Equal Pay Act. A federal law mandating that all who
perform substantially the same work must be paid
equally. 29 USCA 206. [Cases: Labor and Employ
ment (;:::::>2452.]
equal protection. (1866) The 14th Amendment guaran
tee that the government must treat a person or class of
persons the same as it treats other persons or classes in
like circumstances. -In today's constitutional juris
prudence, equal protection means that legislation that
discriminates must have a rational basis for doing so.
And if the legislation affects a fundamental right (such
as the right to vote) or involves a suspect classification
(such as race), it is unconstitutional unless it can with
stand strict scrutiny. -Also termed equal protection of
the laws; equal protection under the law. See RATIONAL
BASIS TEST; STRICT SCRUTINY. [Cases: Constitutional
Law C--:c3000-3833.]
"Equal protection does not require that all persons be dealt
with identically, but it does require that a distinction made
have some relevance to the purpose for which the clas
617 equitable distribution
sification is made." Baxstrom v. Herold, 383 U.S. 107, 111,
86 S.Ct. 760, 763 (1966).
"As in all equal protection cases, ... the crucial question
is whether there is an appropriate governmental interest
suitably furthered by the differential treatment." Police
Dep'r v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290
(1972).
"[Tlhe equal protection principle is exclusively associated
with written Constitutions and embodies guarantees of
equal treatment normally applied not only to the procedural
enforcement of laws but also to the substantive content of
their provisions. In other words, the equal protection of the
laws is invariably treated as a substantive constitutional
principle which demands that laws will only be legitimate
if they can be described as just and equal." Polyvios G.
Polyviou, The Equal Protection of the Laws 4 (1980).
Equal Protection Clause. (1899) The 14th Amendment
provision requiring the states to give similarly situated
persons or classes similar treatment under the law. Cf.
DUE PROCESS CLAUSE. [Cases; Constitutional Law
3000-3833.J
equal protection ofthe laws. See EQUAL PROTECTION.
equal protection under the law. See EQUAL PROTEC
TION.
Equal Rights Amendment. A failed constitutional
amendment that, had it been ratified, would have con
stitutionally prohibited sex-based discrimination .
Congress passed the Amendment in 1972, but it failed
in 1982, having been ratified by only 35 ofthe required
38 states. -Abbr. ERA.
equal-shares clause. Insurance. A clause requiring an
insurer to pay its proportionate share of a claimed
loss.
Equal Time Act. A federal law requiring that a broad
casting-facility licensee who permits a legally quali
fied candidate for public office to use the facility for
broadcasting must afford an equal opportunity to all
other candidates for the office. 47 USCA 315. [Cases;
Telecommunications C= 1153(3).]
equal-time doctrine. See FAIRNESS DOCTRINE.
eques (ee-kweez), n. [Latin] Hist. A knight.
equilocus (ee-kw;l-loh-k;:ls), n. [Latin] An equal.
equinox (ee-kw;l-noks orek-w;:l-noks), n. (14c) One ofthe
two periods of the year when the time from the sun's
rising to its setting is equal to that from its setting to its
rising. The vernal equinox is about March 21, and the
autumnal equinox is about September 22.
equip, vb. (16c) To furnish for service or against a need
or exigency; to fit out; to supply with whatever is neces
sary for efficient action.
equipment, n. (17c) The articles or implements used for a
specific purpose or activity (esp. a business operation).
Under the UCC, equipment includes goods if(1) the
goods are used in or bought for a business enterprise
(including farming or a profession) or by a debtor that
is a nonprofit organization or a governmental subdivi
sion or agency, and (2) the goods are not inventory,
farm products, or consumer goods. UCC 9-102(a)(33).
[Cases; Secured Transactions C=16.J equipment trust. A financing device commonly used by
railroads in which a trustee and the railroad together
buy equipment from a manufacturer, with the trustee
providing most of the purchase price, and the trustee
then leases the equipment to the railroad, which pays
a rental fee comprising interest, amortization for serial
retirement, and the trustee's fee. See |
, which pays
a rental fee comprising interest, amortization for serial
retirement, and the trustee's fee. See EQt:IPMENT TRUST
CERTIFICATE; equipment trust bond under BOND (3).
equipment trust bond. See BOND (3).
equipment trust certificate. A security, usu. issued by a
railroad, to pay tor new equipment . Title to the equip
ment is held by a trustee until the note has been paid
off. Also termed car trust certificate; trust certificate.
See EQUIPMENT TRUST.
equitable (ek-wi-tiJ-biJl), adj. (I6c) 1. Just; consistent with
principles of justice and right. 2. Existing in equity;
available or sustainable by an action in equity, or under
the rules and principles ofequity.
equitable abstention. See ABSTENTION.
equitable action. See action in equity under ACTION (4).
equitable-adjustment theory. (1979) The doctrine that
in settling a federal contract dispute, the contracting
officer should make a fair adjustment within a reason
able time before the contractor has to settle with its
subcontractors, suppliers, and other creditors. [Cases;
United States (~:::;>70(20).J
equitable adoption. See adoption by estoppel under
ADOPTION (1).
equitable asset. See ASSET.
equitable assignment. See ASSIGNMENT (2).
equitable-benefit doctrine. Bankruptcy. The principle
that allows a bankruptcy court to grant preferred status
to claims for service rendered by persons other than
bankruptcy officers, to the extent that the service ben
efited the estate, when the person filing the claim acted
primarily for the benefit ofthe estate as a whole. [Cases;
Bankruptcy C=;:,2871.]
equitable construction. See liberal construction under
CONSTRUCTION.
equitable conversion. See CONVERSION (1).
equitable defense. See DEFENSE (1).
equitable disseisin. See DISSEISIN.
equitable distribution. (1893) Family law. The division
of marital property by a court in a divorce proceed
ing, under statutory guidelines that provide for a fair,
but not necessarily equal, allocation of the property
between the spouses. With equitable distribution,
when a marriage ends in divorce, property acquired
during the marriage is divided equitably between the
spouses regardless of who holds title to the property .
The courts consider many factors in awarding property,
including a spouse's monetary contributions, nonmon
etaryassistance to a spouse's career or earning poten
tial, the efforts of each spouse during the marriage, and
the length of the marriage. The court may take into
account the relative earning capacity ofthe spouses
and the fault ofeither spouse. Equitable distribution is
applied in 47 states (i.e., all the states except California,
Louisiana, and New Mexico, which are "equal division"
community-property states). -Also termed equitable
division; assignment ofproperty. Cf. TITLE DIVISION;
COMMUNITY PROPERTY. [Cases: Divorce C=>248.]
equitable division. See EQUITABLE DISTRIBUTION.
equitable doctrine of approximation. See DOCTRINE
OF APPROXIMATION.
equitable dower. See equitable jointure under JOINTURE.
equitable duty. See DUTY (1).
equitable easement. See EASEMENT.
equitable ejectment. See EJECTMENT.
equitable election. See ELECTION (2).
equitable estate. See ESTATE (1).
equitable estoppel. See ESTOPPEL.
equitable foreclosure. See FORECLOSURE.
equitable fraud. See constructive fraud (1) under
FRAUD.
equitable-fund doctrine. See COMMON-FUND DOCT
RINE.
equitable indemnity. See INDEMNITY.
equitable interest. See INTEREST (2).
equitable jettison. See JETTISON.
equitable jointure. See JOINTURE.
equitable levy. See equitable lien under LIEN.
equitable lien. See LIEN.
equitable life estate. See ESTATE (1).
equitable life tenant. See LIFE TENANT.
equitable mortgage. See MORTGAGE.
equitable owner. See benefiCial owner (1) under
OWNER.
equitable ownersbip. See beneficial ownership (1) under
OWNERSHIP.
equitable parent. See PARENT.
equitable-parent doctrine. Family law. The principle
that a spouse who is not the biological parent of a
child born or conceived during the marriage may, in a
divorce action, be considered the child's natural father
or mother if (1) the other spouse and the child both
acknowledge a parent-child relationship, esp. when
that other spouse has cooperated in the development
of this relationship before the divorce action, (2) the
nonbiologically related spouse wants parental rights,
and (3) he or she is willing to take on the responsibility
of paying support, The doctrine sometimes applies
to nonspousal partners as well. Very few jurisdictions
apply the doctrine. See Carolee Kvoriak Lezuch, Michi
gan's Doctrine ofEquitable Parenthood, 45 Wayne L.
Rev. 1529 (1999). Also termed eqUitable-parenthood
doctrine. [Cases: Child Custody C=>274; Child Support
Children Out-of-Wedlock 1; Parent and
Child C=> 15.] equitable recoupment. (1878) 1. Tax. A doctrine
allowing a taxpayer to offset previously overpaid taxes
against current taxes due, even though the taxpayer is
time-barred from claiming a refund on the previous
taxes. [Cases: Internal Revenue C=>4829.1O.] 2. Tax. A
doctrine allowing the government to offset taxes previ
ously uncollected from a taxpayer against the taxpayer's
current claim for a refund, even though the government
is time-barred from collecting the previous taxes . In
both senses, this type of recoupment can be asserted
only if the statute oflimitations has created an ineq
uitable result. See RECOUPMENT (2). [Cases: Internal
Revenue C=>4845.] 3. A principle that diminishes a
party's right to recover a debt to the extent that the
party holds money or property of the debtor to which
the party has no right. This doctrine is ordinarily a
defensive remedy going only to mitigation of damages.
The doctrine is sometimes applied so that a claim for
a tax refund that is barred by limitations may none
theless be recouped against a tax claim of the govern
ment. -Also termed equitable-recoupment doctrine.
See SETOFF; RECOUPMENT (3). [Cases: Set-off and Coun
terclaim
eqnitable relief. See equitable remedy under REMEDY.
equitable remedy. See REMEDY.
equitable remuneration. See compulsory license (1)
under LICENSE.
equitable rescission. See RESCISSION.
equitable-restraint doctrine. See Younger abstention (1)
under ABSTENTION.
equitable reversion. See REVERSION (1).
equitable right. See RIGHT.
equitable right to setoff'. (1895) The right to cancel cr05S
demands, usu. used by a bank to take from a customer's
deposit accounts the amount equal to the customer's
debts that have matured and that are owed to that bank.
See SETOFF. [Cases: Banks and Banking C=>134; Set-off
and Counterclaim C=>8. 1
equitable seisin. See SEISIN.
equitable servitude. See restrictive covenant under
COVENANT (4).
equitable subrogation. See legal subrogation under SUB
ROGATION.
equitable title. See TITLE (2).
equitable tolling. (1967) 1. The doctrine that the statute
oflimitations will not bar a claim ifthe plaintiff, despite
diligent efforts, did not discover the injury until after
the limitations period had expired, -Equitable tolling
does not require misconduct by the defendant. [Cases:
Limitation of Actions C=> 1045.] 2. The doctrine that
ifa plaintiff files a suit first in one court and then refiles
in another, the statute of limitations does not run while
the litigation is pending in the first court if various
requirements are met. Among those requirements
are (1) timely notice to the defendant; (2) no prejudice
to the defendant; and (3) reasonable and good-faith
conduct on the part ofthe plaintiff.
equitable waste. See WASTE (1).
equity, n. (l4c) 1. Fairness; impartiality; evenhanded
dealing <the company's policies require managers to
use equity in dealing with subordinate employees>.
2. The body ofprinciples constituting what is fair and
right; natural law <the concept of "inalienable rights"
reHects the influence of equity on the Declaration of
Independence>.
"In its popular sense it [equity] is practically equivalent to
natural justice. But it would be a mistake to suppose that
equity, as administered by the Courts, embraces ajurisdic
tion as wide and extensive as that which would result from
carrying into operation all the principles of natural justice.
There are many matters of natural justice wholly unpro
vided for, from the difficulty of framing any general rules
to meet them, and from the doubtful wisdom of a policy
of attempting to give a legal sanction to duties of imper
fect obligation, such as charity, gratitude and kindness.
A large proportion of natural justice in its Widest sense is
thus not judicially enforced, but is left to the conscience of
each individual." R.E. Megarry, Snell's Principles of Equity
I (23d ed. 1947).
3. The recourse to principles of justice to correct or
supplement the law as applied to particular circum
stances <the judge decided the case by equity because
the statute did not fully address the issue>. Also
termed natural equity. [Cases: Equity 1.] 4. The
system of law or body of principles originating in
the English Court of Chancery and superseding the
common and statute law (together called "law" in the
narrower sense) when the two conflict <in appealing to
the equity of the court, she was appealing to the "king's
conscience">; CHANCERY (2).
"Equity is that system ofjustice which was developed in and
administered by the High Court of Chancery in England in
the exercise of its extraordinary Jurisdiction. This definition
is rather suggestive than precise; and invites inquiry rather
than answers it. This must necessarily be so. Equity, in its
technical and scientific legal sense, means neither natural
justice nor even all that portion of natural justice which
is susceptible of being judicially enforced. It has, when
employed in the language of English law. a precise, definite
and limited signification, and is used to denote a system of
justice which was administered in a particular court the
nature and extent of which system cannot be defined in a
single sentence, but can be understood and explained only
by studying the history of that court, and the principles
upon which it acts. In order to begin to understand what
equity is, it is necessary to understand what the English
High Court of Chancery was, and how it came to exercise
what is known as its extraordinary jUrisdiction. Every true
definition of equity must, therefore, be, to a greater or
lesser extent, a history." George T. Bispham, The Principles
ofEquity 1-2 Uoseph D. McCoy ed., 11th ed. 1931).
"In its technical sense, equity may ... be defined as a
portion of natural justice which, although of a nature more
suitable forjudicial enforcement, was for historical reasons
not enforced by the Common Law Courts, an omission
which was supplied by the Court of Chancery. In short, the
whole distinction between equity and law is not 50 much
a matter of substance or principle as of form and history."
R.E. Megarry, Snell's Principles ofEquity 2 (23d ed. 1947).
"The term 'equity' is an illustration of Mr. Towkington's
proposition that some words have a legal meaning very
unlike their ordinary one. In ordinary language 'equity'
means natural justice; but the beginner must get that
idea out of his head when dealing with the system that
the lawyers call equity. Originally, indeed, this system was inspired by ideas of natural justice, and that is why it
acquired its name; but nowadays equity is no more (and
no less) natural justice than the common law, and it is in
fact nothing else than a particular branch of the law of
England. Equity, therefore, is law. The student should not
allow himself to be confused by the lawyer's habit of con
trasting 'law' and 'equity,' for in this context 'law' is simply
an abbreviation for the common law. Equity is law in the
sense that it is part of the law of England: it is not law only
in the sense that it is not part of the common law." Glanville
Williams, Learning the Law 25-26 (llth ed. 1982).
5. A right, interest, or remedy recognizable by a court of
equity <there was no formal contract formation, so they
sued for breach in equity>. [Cases: Equity (;:::::> 1.1
contravening equity (kon-tr<l-veen-ing). (1888) A right
or interest that is inconsistent with or contrary to a
right sought to be enforced.
countervailing equity (kown-t<lr-vayl-ing). (1824) A
contrary and balancing equity, equally deserving of
consideration.
latent equity (lay-t<lnt). (I8c) An equitable claim or
right known only by the parties for and against whom
it exists, or that has been concealed from one who is
interested in the subject matter. -Also termed secret
equity.
perfect equity. (1821) An equitable title or right that, to
be a legal title, lacks only the formal conveyance or
other investiture that would make it cognizable at law;
esp., the equity ofa real-estate purchaser who has paid
the full amount due but has not yet received a deed.
secret equity. See latent equity.
6. The right to decide matters in equity; equity juris
diction <the court decided that the wrong was egre
gious enough to ignore the statute of |
to decide matters in equity; equity juris
diction <the court decided that the wrong was egre
gious enough to ignore the statute of limitations and
decide the case in equity>. [Cases: EquityC=>1.17. The
amount by which the value of or an interest in property
exceeds secured claims or liens; the difference between
the value ofthe property and all encumbrances upon it
<thanks to the real-estate boom, the mortgaged house
still had high equity>. Also termed cushion.
negative equity. The difference between the value ofan
asset and the outstanding amount of the loan secured
by the asset when the asset's current value is less than
the loan's balance.
8. An ownership interest in property, esp. in a business
<the founders gave her equity in the business in return
for all her help>. See OWNERS' EQUITY; BOOK EQUITY;
MARKET EQUITY. 9. A share in a publicly traded
company <he did not want to cash in his equity>.
equity, bill in. See BILL (2).
equity, court of. See COURT.
equity accounting method. See ACCOUNTING
METHOD.
equity capital. See CAPITAL.
equity contra legem (kon-tra lee-jam). lnt'l law. The use
ofequity in derogation ofthe law, where, under the cir
cumstances of the case, an exception to the law is needed
to achieve an equitable and just result. Sometimes
620 equity financing
shortened to contra legem. See EX AEQUO ET BONO. Cf. I right to foreclose on any security held by the creditor
EQUITY I~TRA LEGEM.
equity financing. See FINANCING.
equity insolvency. See INSOLVENCY.
equity intra legem (in-trCllee-jClm). A court's power to
interpret and apply the law to achieve the most equi
table result. -Sometimes shortened to intra legem.
Also written equity infra legem. Cf. EQUITY CONTRA
LEGEM.
equity jurisdiction. See JURISDICTION.
equity jurisprudence. See JURISPRUDENCE.
equity kicker. See EQUITY PARTICIPATION.
equity loan. See home equity loan under LOAN.
equity ofexoneration (eg-zon-a-ray-shan). The right of
a person who is secondarily liable on a debt to make
the primarily liable party discharge the debt or reim
burse any payment that the secondarily liable person
has made . One example is the right ofa surety to call
on the principal for reimbursement after the surety has
paid the debt. Unlike contribution, which exists when
the parties are equally liable, the equity of exonera
tion exists when parties are successively liable. Also
termed right ofexoneration. See EXONERATION.
equity of partners. The right of each partner to have
the firm's property applied to the firm's debts. [Cases:
Partnership 9179.]
equity of redemption. Real estate. The right of a mort
gagor in default to recover property before a foreclosure
sale by paying the principal, interest, and other costs
that are due . A defaulting mortgagor with an equity
ofredemption has the right, until the foreclosure sale,
to reimburse the mortgagee and cure the default. In
many jurisdictions, the mortgagor also has a statutory
right to redeem within six months after the foreclosure
sale, and the mortgagor becomes entitled to any surplus
from the sale proceeds above the amount of the out
standing mortgage. -Also termed right ofredemption.
See CLOG ON THE EQUITY OF REDEMPTION; REDEMP
TION (4); STATUTORY RIGHT OF REDEMPTION. [Cases:
Mortgages (;==591, 600.]
"A mortgage is technically a conveyance of title to property
as security for a debt. The law courts, with typical tech
nicality, early adopted the rule that if the debt was not
paid on the very day it was due, the debtor lost his land.
The equity courts, however, with more liberality, and with
more of a recognition of the real purpose of the transac
tion, recognized the fact that the securing of the debt,
rather than the act of conveyance of title was the principal
thing giving character to the transaction. Accordingly they
alleviated the severity of the legal rule by, in effect. giving
the land back to the debtor if he would pay the debt, even
though it had not been paid on time. This equitable right
to redeem, even after default in paying the debt when it
was due, was called the 'equity of redemption. Charles
Herman Kinnane, A First Book on AngloAmerican Law 309
(2d ed. 1952).
equity ofsubrogation. (1850) The right ofa person who
is secondarily liable on a debt, and who pays the debt, to
personally enforce any right that the original creditor
could have pursued against the debtor, including the and any right that the creditor may have to contribution
from others who are liable for the debt. Also termed
right ofsubrogation; (in Scots law) right ofrelief See
SUBROGATION. [Cases: Subrogation 91.]
equity-of-the-statute rule. (1959) In statutory construc
tion, the principle that a statute should be interpreted
according to the legislators' purpose and intent, even
if this interpretation goes beyond the literal mean ing
of the text. Under this little-used rule, for example,
if a statute defines jury-tampering to include a party's
"giving a juror food or drink," the giving ofcigars to a
juror would also fall within that definition. Cf. GOLDEN
RULE; MISCHIEF RULE; PLAIN-MEANING RULE. [Cases:
Statutes C-::;:; 189.]
equity participation. (1947) The inclusion ofa lender in
the equity ownership of a project as a condition of the
lender's granting a loan. -Also termed equity kicker.
equity pleading. See PLEADING (2).
equity praeter legem (pree-tar lee-jClm) The use of
equity to fill a gap in the law. Sometimes shortened
to praeter legem.
equity ratio. 1. The percentage relationship between a
purchaser's equity value (esp. the amount of a down
payment) and the property value. 2. The measure of a
shareholder's equity divided by total equity.
equity security. See SECURITY.
equity stock. See STOCK.
equity term. See TERM (5).
equity to a settlement. (1838) A wife's equitable right,
arising when her husband sues in equity for the reduc
tion of her equitable estate to his own possession, to
have all or part of that estate settled upon herself and
her children. Also termed wife's equity; wife's settle
ment. [Cases: Husband and Wife 912.]
equivalence ofadvantages. See RECIPROCITY (2).
equivalent, adj. (lSc) 1. Equal in value, force, amount,
effect, or significance. 2. Corresponding in effect or
function; nearly equal; virtually identical.
equivalent, n. Patents. An element that (1) existed before
another element; (2) can perform the same function as
the other element; and (3) is recognizable as a substi
tute for the other element. For instance, mechani
cal devices are equivalents when one skilled in the art
would have recognized that each device would produce
the same result. If the equivalent is known at the time
an invention is conceived, the invention's patentability
may be questioned. See ANALOG. [Cases: Patents 9
237.]
"If a given substitute is an equivalent under certain Cir
cumstances or in certain settings, and is not an equiva
lent under certain other circumstances or in certain other
settings, then the substitution is patentable, provided the
claim contains express limitations to the circumstances
or settings in which the substitution is nonequivalent."
Roger Sherman Hoar, Patent Tactics and the Law 43 (3d
ed. 1950).
equivalents doctrine. See DOCTRINE OF EQUIVALENTS.
621
equivocal (i-kwiv-d-kal), adj. (17c) 1. Of doubtful char
acter; questionable. 2. Having more than one meaning
or sense; ambiguous.
equivocality test (i-kwiv-d-kal-d-tee). See RES IPSA
LOQUITUR TEST.
equivocation (i-kwiv-d-kay-shdn). See latent ambiguity
under AMBIGUITY.
equuleus (i-kwoo-lee-ds), n. [Latin] Roman law. A rack
in the shape ofa horse, used for torture.
ERA. abbr. EQUAL RIGHTS AMENDMENT.
erase, vb. (l4c) 1. To rub or scrape out (something
written); to obliterate. 2. To obliterate (recorded
material). 3. To seal (criminal records) from disclo
sure. [Cases: Criminal Law 1226(3); Records
32.] erasure, n.
Erastian (i-ras-chdn or i-ras-tee-dn). (l7c) Hist. A
follower ofThomas Erastus (1524-1583), who thought
that offenses against religion and morality should be
punished by the civil power and not by the censures of
the church. _ As a sect, Erastians had great int1uence in
England, particularly among 17th-century common
law lawyers.
erasure ofrecord. See EXPUNGEMENT OF RECORD.
erciscundus (er-sis-kan-dds), adj. [Latin] Civil law. To
be divided. - A suit judicium familiae erciscundae was
one to partition an inheritance.
erect, vb. (ISc) 1. To construct. 2. To establish. -In
England, erect is one of the formal words ofincorpo
ration in a royal charter, being part ofthe phrase, "We
do incorporate, erect, ordain, name, constitute, and
establish." See ERIGIMUS.
erectile dysfunction. See IMPOTENCE.
E reorganization. See REORGANIZATION (2).
ergo (ar-goh or air-goh), adv. [Latin] Therefore; thus.
ergolabus (dr-goh-Iay-bds), n. [Latin] Civil law. A person
who contracts to perform work by personally furnish
ing the materials and labor.
Erie-bound, adj. (Ofa federal court) required to apply
the Erie doctrine. [Cases: Federal Courts (;:::>372.]
Erie doctrine (eer-ee). (1943) The principle that a federal
court exercising diversity jurisdiction over a case that
does not involve a federal question must apply the sub
stantive law ofthe state where the court sits. Erie R.R. v.
Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938). Cf. REVERSE
ERIE DOCTRINE. [Cases: Federal Courts (;:::>373.]
Erie/Klaxon doctrine. See KLAXON DOCTRINE.
erigimus (i-rij-d-mds). [Latin] Hist. We erect. -This was
one ofthe words used in a corporation's royal charter.
See ERECT (2).
ERISA or J-ris-J). abbr. EMPLOYEE RETIREMENT
INCOME SECURITY ACT.
eristic (e-ris-tik), adj. Ofor relating to controversy or
disputation. Also termed eristical. error
ermine (ar-min), n. (I8c) The station ofa judge; judge
ship. -The term refers to the fur trimmings (made from
the coats ofwhite weasels called "ermine") adorning
official robes ofEnglish judges. ermined, adj.
erosion. (1841) The wearing away ofsomething by action
ofthe elements; esp., the gradual eating away ofsoil by
the operation ofcurrents or tides. Cf. ACCRETION (1);
DELlCTION; AVULSION (2); ALLUVION.
err (Jr), vb. (14c) To make an error; to be incorrect or
mistaken <the court erred in denying the motion for
summary judgment>.
errant (er-Jnt), adj. (14c) 1. Fallible; incorrect; straying
from what is proper <an errant judicial holding>. 2.
Traveling <a knight errant>.
errata sheet. (1932) An attachment to a deposition tran
script containing the deponent's corrections upon
reading the transcript and the reasons for those cor
rections. -Also termed errata page.
erratum (i-ray-tJm or i-rah-tdm), n. [Latin "error"] (16c)
An error that needs correction. PI. errata (i-ray-td or
i-rah-td). See CORRIGENDUM.
erroneous (i-roh-nee-ds), adj. (15c) Incorrect; inconsis
tent with the law or the facts.
erroneous assessment. See ASSESSMENT.
erroneous extradition. See extraordinary rendition
under RENDITION.
erroneous jndgment. See JUDGMENT.
erroneous rendition. See RENDITION.
erroneous tax. See TAX.
erronice (i-roh-nd-see), adv. [Law Latin) Erroneously;
through error or mistake.
error, n. (13c) 1. An assertion or belief that does not
conform to objective reality; a belief that what is false
is true or that what is true is false; MISTAKE.
error in corpore (kor-pa-ree). (lSe) A mistake involv
ing the identity ofa particular object, as when a party
buys a horse believing it to be the one that the party
had already examined and ridden, when in fact it is
a different horse.
error in negotio (ni-goh-shee-oh). (1944) A mistake
about the type of contract that the parties actually
wanted to enter.
errorin qualitate (kwah-ld-tay-te |
about the type of contract that the parties actually
wanted to enter.
errorin qualitate (kwah-ld-tay-tee). A mistake affect
ing the quality ofthe contractual object.
error in quantitate (kwahn-td-tay-tee). A mistake
affecting the amount ofthe contractual object.
reissuable error. See REISSUABLE ERROR.
2. A mistake oflaw or offact in a tribunal's judgment,
opinion, or order. [Cases: Federal Civil Procedure
2653; Judgment (;:::>355, 356.J
assigned error. An alleged error that occurred in a
lower court and is pointed out in an appellate brief
as grounds for reversal <appellants' two assigned
errors appeared to the court to be harmless errors>.
622 error, assignment of
See ASSIGNMENT OF ERROR. [Cases: Appeal and Error
G':::>71S-754; Federal Courts C=>714.]
Caldwell error. The constitutionally impermissible
error ofresting a death sentence on a determination
made by a sentencer who has been led to believe that
the responsibility for determining the appropriate
ness ofthe defendant's death sentence lies elsewhere.
Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633
(I985) . The error most often occurs when the prose
cutor or the judge tells the jury that the death sentence,
ifinappropriate, may be overturned on appeal. [Cases:
Sentencing and Punishment C=>1780(2).]
dear error. (18c) A trial judge's decision or action that
appears to a reviewing court to have been unquestion
ably erroneous . Even though a clear error occurred,
it mav not warrant reversal. -Also termed clear and
unmistakable error. [Cases: Appeal and Error C=>
999(1), 1008.1(5); Criminal Law ~-::,1030(1); Federal
Courts ~~>850.1.1
clerical error. (18c) An error resulting from a minor
mistake or inadvertence, esp. in writing or copying
something on the record, and not from judicial rea
soning or determination . Among the boundless
examples ofclerical errors are omitting an appendix
from a document; typing an incorrect number; mis
transcribing a word; and failing to log a calL A court
can correct a clerical error at any time, even after
judgment has been entered. See Fed. R. Civ. P. 60(a);
Fed. R. Crim. P. 36. Also termed scrivener's error;
vitium clerici. See VITIUM SCRIPTORIS. [Cases: Federal
Civil Procedure <':=:;;2653; Judgment C=>306.]
cross-error. (1838) An error brought by the party
responding to a writ oferror.
cumulative error. The prejudicial effect oftwo or more
trial errors that may have been harmless individually.
The cumulative effect of multiple harmless errors
may amount to reversible error. See CUMULATIVE
ERROR ANALYSIS. [Cases: Appeal and Error C=> 1026;
Criminal Law C=> 1186.1; Federal Courts C='891.]
error apparent ofrecord. See plain error.
error in vacuo. See harmless error.
fatal error. See reversible error.
fundamental error. See plain error.
harmful error. See reversible error.
harmless error. (185!) An error that does not affect a
party's substantive rights or the case's outcome. - A
harmless error is not grounds for reversaL See Fed. R.
Civ. P. 61; Fed. R. Crim. P. 52. Also termed techni
cal error; error in vacuo. Cf. substantial error. [Cases:
Administrative Law and Procedure C=>764; Appeal
and Error 1025-lO74; Criminal Law C=> 1162;
Federal Courts (;=;'891.]
invited error. (1893) An error that a party cannot
complain of on appeal because the party, through
conduct, encouraged or prompted the trial court to
make the erroneous ruling. [Cases: Administrative Law and Procedure Appeal and Error
882; Criminal Law C=>1137.]
manifest constitutional error. (1985) An error by the
trial court that has an identifiably negative impact on
the trial to such a degree that the constitutional rights
of a party are compromised . A manifest constitu
tional error can be reviewed by a court ofappeals even
ifthe appellant did not object at trial.
manifest error. (18c) An error that is plain and indis
putable, and that amounts to a complete disregard
ofthe controlling law or the credible evidence in the
record. [Cases: Appeal and ErrorC=>999(l), 1008.1(7);
Criminal Law C:)1030(1).]
obvious error. See OBVIOUS ERROR.
plain error. (1801) An error that is so obvious and preju
dicial that an appellate court should address it despite
the parties' failure to raise a proper objection at trial.
A plain error is often said to be so obvious and
substantial that failure to correct it would infringe a
party's due-process rights and damage the integrity of
the judicial process. See Fed. R. Evid. 103(d). -Also
termed fundamental error; error apparent ofrecord.
[Cases: Appeal and Error (;:::::>181; Criminal Law <::=-)
1030; Federal Courts C=>611.]
reissuable error. See REISSUABLE ERROR.
reversible error. (1855) An error that affects a party's
substantive rights or the case's outcome, and thus is
grounds for reversal ifthe party properly objected at
trial. -Also termed harmful error; prejudicial error;
fatal error. [Cases: Administrative Law and Procedure
C=>764; Appeal and Error C=> 1025-1074; Criminal
Law C=> 1162; Federal Courts C=>891.]
scrivener's error. See clerical error.
substantial error. An error that affects a party's sub
stantive rights or the outcome of the case. A sub
stantial error may require reversal on appeal. Cf.
harmless error. [Cases: Appeal and Error C=> 181;
Federal Courts C:=891.]
technical error. See harmless error.
3. An appeal <a proceeding in error>.
error, assignment of. See ASSIGNMENT OF ERROR.
error, writ of. See WRIT OF ERROR.
error calculi (er-or kal-kyuu-h). [Latin] Roman & civil
law. An error in calculation.
"If it occurs in a judgment and is fully eVident, no appeal
is necessary. The judge himself may correct it. In public
administration, error calculi is without any legal effect. A
reexamination and correction (retractatio) is admissible
even after ten or twenty years." Adolf Berger, Encyclopedic
Dictionary ofRoman Law 456 (1953).
error de persona (dee pdr-soh-nd). [Latin "error ofthe
person"] A mistake about a person's identity. Cf. ERROR
NOMINIS.
errore acerrimo non affectato insimulatove (e-ror-ee
;:l-ser-i-moh non af-ek-tay-toh in-sim-yuu-I;Hoh-vee).
[Latin] Hist. Through error of the most pointed or
positive character, not merely pretended or feigned.
errore lapsus (e-ror-ee lap-s;:)s). [Latin] Hist. Mistaken
through error. This type ofmistake was usu. not suf
ficient to invalidate a contract.
error in fact. See mistake offact (1) under MISTAKE.
error in law. See mistake oflaw (1) under MISTAKE.
error in vacuo (in vak-yoo-oh). [Latin "error in a void"]
See harmless error under ERROR.
error nominis (nahm-;:)-nis). [Latin "error of name"]
A mistake of detail in a person's name. Cf. ERROR DE
PERSONA.
error of fact. See mistake offact (1) under MISTAKE.
error-of-judgment rule. The doctrine that a professional
is not liable to a client for advice or an opinion given
in good faith and with an honest belief that the advice
was in the client's best interests, but that was based on a
mistake either in judgment or in analyzing an unsettled
area of the professional's business . For example, an
attorney who makes an error in trial tactics involving
an unsettled area of the law may, under certain cir
cumstances, defeat a malpractice claim arising from the
tactical error. -Also termed judgmental immunity.
error oflaw. See mistake oflaw (1) under MISTAKE.
errors, assignment of. See ASSIGNMENT OF ERRORS.
errors-and-omissions insurance. See INSURANCE.
ERS. abbr. ECONOMIC RESEARCH SERVICE.
ESA. abbr. 1. ECONOMICS AND STATISTICS ADMINISTRA
TION. 2. EMPLOYMENT STANDARDS ADMINISTRATION.
ESBT. abbr. See electing small-business trust under TRUST
(3).
escalation clause. See ESCALATOR CLAUSE.
escalator clause. (1930) 1. A contractual provision that
makes pricing flexible by increasing or decreasing the
contract price according to changing market condi
tions, such as higher or lower taxes or operating costs.
Cf. DE-ESCALATION CLAUSE. [Cases: Contracts C=c229,
231.] 2. A provision in a divorce decree or divorce agree
ment providing for the automatic increase of alimony
payments upon the occurrence of any of various trig
gering events, such as cost-of-living increases or an
increase in the obligor's salary . Escalation clauses for
child support are often unenforceable. [Cases: Child
Support C=c 161; Divorce C=c240(2), 243, 245.] 3. Oil
& gas. A provision in a long-term gas contract allowing
the base price of the gas to be adjusted as the market
changes. The actual adjustment may be up or down.
[Cases: Gas C=c 14.1(3).] -Also termed escalation
clause;fluctuating clause.
escambium. See CAMBIUM (2).
escape, n. (14c) 1. The act or an instance of breaking
free from confinement, restraint, or an obligation. 2.
An unlawful departure from legal custody without the
use of force. -Also termed actual escape. Cf. PRISON
BREACH. [Cases: Escape C=c 1.]
"In the technical sense an 'escape' is an unauthorized
departure from legal custody; in a loose sense the word is
used to indicate either such an unlawful departure or an avoidance of capture. And while the word is regularly used
by the layman in the broader sense it usually is limited to
the narrower meaning when used in the law, -although
this is not always so." Rollin M. Perkins & Ronald N. Boyce,
Criminal Law 559 (3d ed. 1982).
constructive escape. A prisoner's obtaining more
liberty than the law allows, while not fully regain
ing freedom.
3. At common law, a criminal offense committed by a
peace officer who allows a prisoner to depart unlaw
fully from legal custody. -Also termed voluntary
escape. [Cases: Escape C=c3.] -escape, vb.
negligent escape. The offense committed by a peace
officer who negligently allows a prisoner to depart
from legal custody.
"Escapes are either voluntary, or negligent. Voluntary are
such as are by the express consent of the keeper, after
which he never can retake his prisoner again, (though
the plaintiff may retake him at any time) but the sheriff
must answer for the debt. Negligent escapes are where
the prisoner escapes without his keeper's knowledge or
consent; and then upon fresh pursuit the defendant may
be retaken, and the sheriff shall be excused, if he has him
again before any action brought against himself for the
escape." 3 William Blackstone, Commentaries on the Laws
ofEngland415-16 (1768).
escape clause. (1945) A contractual provision that
allows a party to avoid performance under specified
conditions; specif., an insurance-policy provision
usu. contained in the "other insurance" section of the
policy -requiring the insurer to provide coverage only
if no other coverage is available. Cf. EXCESS CLAUSE;
PRO RATA CLAUSE.
escapee. (19c) A prisoner or other inmate who has
escaped from lawful custody. [Cases: Escape C=c 1.]
"The word 'escapee' is employed at times by those who
are not careful in the use of language. They probably think
this word is comparable to 'arrestee' or 'employee.' But the
arrestee did not do the arresting and the employee did not
do the employing. The employee does the work but that
makes him a worker, not a workee." Rollin M. Perkins &
Ronald N. Boyce, Criminal Law 560 (3d ed. 1982).
escape period. Labor law. A time agreed upon in some
union contracts during which workers may withdraw
from the union near the end ofone term covered by the
contract and before the start of the next.
escape warrant. See WARRANT (1).
escapium (e-skay-pee-;:)m), n. [Law Latin] That which
comes by chance or accident. In medieval Latin, the
term often referred to the escape of a prisoner or the
straying ofcattle.
escheat (es-cheet), n. (14c) 1. Hist. The reversion ofland
ownership back to the lord when the immediate tenant
dies without heirs. See WRIT OF ESCHEAT. 2. Reversion
of property (esp. real property) to the state upon the
death ofan owner who has neither a will nor any legal
heirs. [Cases: Escheat C=c 1-8.] 3. |
owner who has neither a will nor any legal
heirs. [Cases: Escheat C=c 1-8.] 3. Property that has
so reverted. See heirless estate under ESTATE (3).
escheat, vb. -escheatable, adj.
"All escheats, under the English law, are declared to be
strictly feudal, and to import the extinction of tenure....
The rule [was] that if lands were held in trust and the cestui
que trust without heirs, the lands did not escheat to the
crown, but the trustee, being in esse and in the legal seisin
of the land, took the land discharged of the trust, and
bound as owner for the feudal services. But as the feudal
tenures do not exist in this country, there are no private
persons who succeed to the inheritance by escheat; and
the state steps in the place of the feudal lord, by virtue of
its sovereignty, as the original and ultimate proprietor of
all the lands within its jurisdiction." 4 James Kent, Com
mentaries on American Law *423-24 (George Comstock
ed., 11th ed. 1866).
escheat grant. See GRANT.
escheator (es-cheet-ar). Hist. A royal officer appointed to
assess the value of property escheating to the Crown.
Corrupt officers led many to associate the escheator
with fraudulent conduct, giving rise to the word cheat
as used in the modern sense. -Also termed cheater.
escheat patent. See escheat grant under GRANT.
escheccum (es-chek-am), n. [Latin] Hist. A jury or inqui
sition.
Escobedo rule (es-b-bee-doh). Criminal procedure. lhe
principle that a statement by an unindicted, targeted
suspect in police custody is inadmissible at trial unless
the police warn the suspect ofthe right to remain silent
and provide an opportunity for the suspect to consult
with retained or appointed counseL This rule was
a precursor to the Miranda rule. Escobedo v. Illinois,
378 U.S. 478, 84 S.Ct. 1758 (1964). See MIRANDA RULE.
[Cases: Criminal Law (;:::::>412.2(3),517.2(3),518.]
escot (e-skot), n. (17c) Hist. English law. A tax paid in
boroughs and corporations to support the commu
nity.
escribano (es-kree-bah-noh), n. [Spanish] Spanish law.
A notary; speci., an officer who has authority to set
down in writing, and attest to, transactions and con
tracts between private persons, as well as judicial acts
and proceedings.
escritura (es-kree-toor-ah), n. [Spanish] Spanish law. A
written instrument, such as a contract; esp., a deed that
either is prepared by an escribano or notary of a corpo
ration or council (concejo) or is sealed with a monarchi
calor governmental seaL
escritura publica (es-kree-toor-ah p3b-li-ka). See PUBLIC
WRITING (2).
escroquerie (es-kroh-ka-ree), n. [French] Fraud; swin
dling; cheating.
escrow (es-kroh), n. (16c) 1. A legal document or property
delivered by a promisor to a third party to be held by
the third party for a given amount of time or until
the occurrence of a condition, at which time the third
party is to hand over the document or property to the
promisee <the agent received the escrow two weeks
before the closing date>. [Cases: Deposits and Escrows
11-26.J 2. An account held in trust or as security
<the earnest money is in escrow>. -Also termed
escrow account; impound account; reserve account. See
escrow account under ACCOU;:\IT. [Cases: Deposits and
Escrows C=: 1LJ 3. The holder of such a document,
property, or deposit <the attorney performed the function of escrow>. Also termed escrow agent.
[Cases: Deposits and Escrows C=:13.] 4. The general
arrangement under which a legal document or property
is delivered to a third person until the occurrence of a
condition <creating an escrow>. escrow, vb.
'Like 'scroll' and 'scrawl: the word 'escrow' is derived from
the NormanFrench word for a writing or a written instru
ment. It has come in practice to refer to a security device:
one or both parties to a transaction deposit property or
an instrument with a third party until some condition has
occurred. The property or instrument may be referred to as
'the escrow'; the delivery is said to be 'in escrow.'" Restate
ment (Second) of Contracts 103 em!. a (1979).
escrow account. See ACCOUNT .
escrow agent. See AGENT (2).
escrow agreement. (1882) Ibe instructions given to the
third-party depositary of an escrow. [Cases: Deposits
and Escrows (;:..-, 15.]
escrow contract. See CONTRACT.
escrow deposit. See escrow account under ACCOUNT.
escrowee. See escrow agent under AGENT (2).
escrow holder. See escrow agent under AGENT (2).
escrowl (es-krohl), n. Hist. 1. An escrow. 2. A scroll.
escrow officer. See escrow agent under AGENT (2).
escuage (es-kyoo-ij). [French, fro Latin escuagium] See
SCUTAGE.
E-Sign Act. The short name for the Electronic Signa
tures in Global and National Commerce Act, a 2000
federal statute that establishes the legal equivalency of
electronic contracts, electronic signatures, and other
electronic records with their paper counterparts .
The E-Sign Act applies to all types of transactions,
whether in interstate or foreign commerce, unless a
specific exception applies. Among the few exceptions
are documents related to family law and probate law,
most documents required by the Uniform Commer
cial Code, court documents, and a list of notices that
directly impact the lives of consumers (e.g., a notice of
termination of utility services or a notice of eviction).
[Cases: Signatures C=:1.]
esketores (es-ka-tor-eez), n. pl. Hist. Robbers; destroyers
of others' lands or fortunes.
eskipper (a-skip-<Jr), vb. To ship. Also termed eskip
pare (es-b-pair-ee).
eskippeson (a-skip-[<J]-san), n. Shippage; passage by
sea. -Also termed skippeson.
eslisor (es-h-zar). See ELISOR.
esne (ez-nee), n. Hist. A hireling of servile condition; a
hired laborer or a slave.
esnecy (es-ni-see), n. Hist. Seniority: the condition, right,
or privilege ofthe eldest-born . The term esp. applied
to the privilege of the eldest among coparceners to
make a first choice of shares upon a voluntary parti
tion. -Also termed aesnecia.
ESOP (ee-sop). abbr. See employee-stock-ownership plan
under EMPLOYEE BENEFIT PLAN.
625
espera (es-pd-fd), n. A period fixed by law or by a court
within which certain acts are to be performed (such as
payment ofa debt).
espionage (es-pee-d-nahzh). (l8c) The practice of using
spies to collect information about what another govern
ment or company is doing or plans to do.
industrial espionage. (1962) Intellectual property. One
company's spying on another to steal trade secrets or
other proprietary information.
Espionage Act. A federal law that criminalizes and
punishes espionage, spying, and related crimes. 18
USCA 793 et seq . Two Espionage Acts were passed.
The 1917 act criminalized false statements intended
to interfere with the war effort; to willfully cause or
attempt to cause dissension in the armed forces; or
to willfully obstruct national recruiting and enlist
ment activities. This act remains enforceable "when
the United States is at war." The 1918 act criminalized
speech intended to obstruct war-bond sales; to generate
scorn or contempt for democratic government, the flag,
or the uniform of the Army or Navy; to urge reduced
production of war materials with the intent to hinder
the war effort; or to express support for a national
enemy or opposition to the United States' cause. The
act's constitutionality was upheld by the U.S. Supreme
Court before it was repealed in 1921. [Cases: War and
National Emergency C=>48.]
esplees (es-pleez), n. pl. (17c) Archaic. 1. Products yielded
from land. 2. Rents or other payments derived from
land. 3. Land itself. -Also termed explees.
espousals (d-spow-zdlz), n. (14c) Mutual promises
between a man and a woman to marry one another.
[Cases: Breach of Marriage Promise C=>4, S.]
"Espousals were of two kinds: sponsalia per verba de
futuro, which take place if man and woman promise each
other that they will hereafter become husband and wife;
sponsalia per verba de praesenti, which take place if they
declare that they take each other as husband and wife now,
at this very moment." 2 Frederick Pollock & Frederic William
Maitland, History ofEnglish Law Before the Time ofEdward
1368 (2d ed. 1899).
espouse, vb. (lSc) 1. To marry. 2. To dedicate oneself to
and advocate for (a cause).
esquire (es-kwIr or e-skwIr). (ISc) 1. Hist. A candidate
for knighthood who assisted knights in martial endeav
ors. 2. Hist. A member of the gentry whose rank was
inferior to that ofa knight. 3. Archaic. A landed gentle
man; a member ofthe landed gentry. 4. (usu. cap. as an
honorific) A title ofcourtesy commonly appended after
the name ofa lawyer. -Abbr. Esq.
"Heralds and experts on honour for a long time regarded
serjeants either as inferior to esquires or at most as being
equals by reason of office. James Whitelocke, a barrister
with historical interests and a future serjeant, said in
1601 that becoming a serjeant carried with it the status of
esquire, so that the proper description was 'A.B. esquire,
serjeant at law.' Chief Justice Dyer, however, argued in 1580
that the name of esquire was 'drowned' on creation as a
serjeant, the latter being a higher degree; and the same
point of view was urged in 1611 by the serjeants in a pre
cedence dispute. It was probably not until the eighteenth
century that the heralds accepted the priority of serjeants essoin day
before esquires. By that time the rank of esquire had begun
its decline, and according to the courts it belonged to all
barristers at law by virtue of their profession.: J,H. Baker,
The Order ofSerjeants at Law 52 (1984).
essence, of the. See OF THE ESSENCE.
essence test. Labor law. A test under which an arbitra
tor's interpretation of a collective-bargaining agree
ment must be upheld if it derives in any rational way
from the agreement, viewed in light ofthe agreement's
language, its context, and any other evidence of the
parties' intention. [Cases: Labor and Employment
IS92; Labor and Employment 1623(1).]
essendi quietum de tolonio (e-sen-dI kWI-ee-tdm dee
td-Ioh-nee-oh). [Latin "a writ to be free ofa toll"] Hist.
A writ available to a citizen or a burgess of any city or
town who, by charter or prescription, is exempt from
a particular toll.
essential finding. See FINDING OF FACT.
essentialia (e-sen-shee-ay-Iee-d). [Law Latin "essentials"]
Scots law. Terms or qualities essential to the existence of
a particular right or contract. Cf. ACCIDENTALIA.
"Essentialia. This term, applied to a contract, or right,
or other subject of law, signifies those things which are
essential to the very being of the contract or right, as such,
and any alteration in which would make the contract or
right resolve into one of another kind." William Bell, Bell's
Dictionary and Digest of the Law ofScotland 406 (George
Watson ed., 7th ed. 1890).
essentialia feudi (e-sen-shee-ay-Iee-d fyoo-dl). [Law
Latin] Scots law. The essential terms of a feudal right.
Cf. ACCIDENTALIA FEUDI.
essential mistake. See MISTAKE.
essential term. See fundamental term under TERM (2).
essoin (e-soyn), n. [fr. Old French essoi(g)ne "excuse"]
(14c) Hist. 1. An excuse for not appearing in court on
an appointed day in obedience to a summons. 2. The
offering or presentation of such an excuse. -Also
spelled essoign.
'The first return-day of every term, properly speaking, is
the first day of that term; and on that day the court used
formerly to sit ... to hear the essoigns, or excuses, of such
as did not appear according to the summons of the writ.
This day therefore came to be called the essoign-day of
the term." 1 George Crompton, Practice Common-Placed:
Rules and Cases of Practice in the Courts of King's Bench
and Common Pleas liv (3d ed. 1787).
essoin, vb. [fr. Old French essoi(g)nier "to excuse"] (14c)
Hist. To present an excuse for not appearing in court
as ordered.
"Upon the summons, the defendant either appeared, or
essoigned, or made default. If he did the former, the plain
tiff declared against him, and the cause was proceeded in
by the court; and if he did the latter, the plaint |
, the plain
tiff declared against him, and the cause was proceeded in
by the court; and if he did the latter, the plaintiff had liberty
to take out further process against him. But if he essoigned,
that is, sent an excuse to the court why he could not attend,
he was to send it by the return day of the writ which if he
did, a further process did not issue against him." 1 George
Crompton, Practice Common-Placed: Rules and Cases of
Practice in the Courts of King's Bench and Common Pleas
liv (3d ed. 1787).
essoin day. Hist. English law. The first general return day
of the term, when the courts sat to receive essoins .
626 essoin de malo villae
By the Law Terms Act (1830), essoin days were elimi
nated as a part of the term. St. 11 Geo. 4; 1 Will. 4, ch.
70, 6.
essoin de malo villae (dee mal-oh viI-eel. Hist. A proce
dure by which a defendant, who was in court the first
day but was then taken ill without pleading, would
send two essoiners to state in court that the defendant
was detained by sickness in a particular village and
thus unable to attend. -This essoin would be accepted
unless the plaintiff could show its falsity.
essoiner (e-soyn-<lr), n. Hist. A person making an
essoin. Also termed essoiniator (e-soyn-ee-ay-t.:lr).
essoin roll. Hist. A roll upon which essoins were entered,
together with the day to which they were adjourned.
establish, vb. (14c) 1. To settle, make, or fix firmly; to
enact permanently <one object ofthe Constitution was
to establish justice>. 2. To make or form; to bring about
or into existence <Congress has the power to establish
Article III courts>. 3. To prove; to convince <the House
managers tried to establish the President's guilt>.
established royalty. See ROYALTY (1).
establishment, n. (ISc) 1. The act of establishing; the
state or condition of being established. 2. An institu
tion or place ofbusiness. 3. A group of people who are
in power or who control or exercise great influence over
something.
Establishment Clause. (1959) The First Amendment pro
vision that prohibits the federal and state governments
from establishing an official religion, or from favoring
or disfavoring one view of religion over another. U.S.
Const. amend. I. Cf. FREE EXERCISE CLAUSE. [Cases:
Constitutional Law (;:::> 1294.]
estadal (es-tah-dahl), n. [Spanish] Hist. In Spanish
America, a measure of land of 16 square varas, or
yards.
estadia (es-tah-dee-ah), n. [Spanish] Spanish law. 1. A
delay in a voyage, or in the delivery ofcargo, caused
by the charterer or consignee, who becomes liable for
demurrage. 2. The time for which the party who has
chartered a vessel, or is bound to receive the cargo,
must pay demurrage because of a delay in performing
the contract. -Also termed sobrestadia (soh-bray
stah-dee-ah).
estandard (.:l-stan-d.:lrd), 11. [Law French] A standard of
weights and measures.
est a scavoir (ayah skah-vwahr). [Law French, prob. fr.
Latin est sciendum "it is to be known"] It is to be under
stood or known; to wit. _ This expression is common
in Sir Thomas de Littleton's 15th-century Treatise on
Tenures, written in Law French. See SCIENDGM EST.
estate. (ISc) 1. 1he amount, degree, nature, and quality
of a person's interest in land or other property; esp., a
real-estate interest that may become possessory, the
ownership being measured in terms of duration. See
periodic tenancy under TENANCY.
absolute estate. A full and complete estate that cannot
be defeated. "The epithet absolute is used to distinguish an estate
extended to any given time, without any condition to
defeat or collateral limitation to determine [i.e., terminate]
the estate in the mean time, from an estate subject to a
condition or collateral limitation. The term absolute is of
the same signification with the word pure or simple, a
word which expresses that the estate is not determinable
by any event besides the event marked by the clause of
limitation." G.c. Cheshire, Modern Law of Real Property
54 (3d ed. 1933).
base estate. Hist. An estate held at the will ofthe lord,
as distinguished from a freehold.
concurrent estate. (18c) Ownership or possession of
property by two or more persons at the same time.
In modern practice, there are three types of concur
rent estates: tenancy in common, joint tenancy, and
tenancy by the entirety. -Also termed concurrent
interest.
"A concurrent estate is simply an estate -whether present
or future, defeasible or non-defeasible, in fee simple, in tail,
for life, or for years that is owned by two or more persons
at the same time. 0 transfers 'to A and B and their heirs.'
A and B own a present concurrent estate in fee simple
absolute." Thomas F. Bergin & Paul G. Haskell, Preface to
Estates in Land and Future Interests 53 (2d ed. 1984).
conditional estate. See estate on condition.
contingent estate. (I7c) An estate that vests only if a
specified event does or does not happen. Cf. estate
on condition,
defeasible estate. (17c) An estate that may come to an
end before its maximum duration has run because
of the operation of a special limitation, a condition
subsequent, or an executory limitation. _ Ifan estate
is defeasible by operation of a special limitation, it is
called a determinable estate.
derivative estate. (18c) A particular interest that has
been carved out of another, larger estate. Cf. original
estate.
determinable estate. (17c) An estate that is defeasible
by operation of a special limitation. -Also termed
determinable freehold.
equitable estate. (l7c) An estate recognized in equity,
such as a trust beneficiary's interest. See EQUITY.
"[Ajlegal estate was a right in rem, an equitable estate a
right in personam, that is to say, the former conferred a
right enforceable against the whole world, the latter one
which could be enforced only against a limited number of
persons:' G.c. Cheshire, Modern Law of Real Property 54
(3d ed. 1933).
equitable life estate. An interest in real or personal
property that lasts for the life of the holder of the
estate and that is equitable as opposed to legal in its
creation. -An example is a life estate held by a trust
beneficiary. [Cases: Life Estates 21.]
estate ad remanentiam (ad rem-.:l-nen-shee-.:lm). An
estate in fee simple.
estate at sufferance. See tenancy at sufferance under
TENANCY.
estate at will. See tenancy at will under TENANCY.
627
estate by curtesy. An estate owned by a wife, to
which the husband is entitled upon her death. See
CURTESY.
estate by elegit. An estate held by a judgment creditor,
entitling the creditor to the rents and profits from
land owned by the debtor until the debt is paid. See
ELEGIT.
estate by entirety. A common-law estate in which
each spouse is seised of the whole of the property.
An estate by entirety is based on the legal fiction
that a husband and wife are a Single unit. The estate
consists offive unities: time, title, interest, possession,
and marriage. The last of these unities distinguishes
the estate by entirety from the joint tenancy. A joint
tenancy can exist with any number ofpersons, while
an estate by entirety can be held only by a husband
and wife and is not available to any other persons.
And it can be acquired only during the marriage. This
estate has a right of survivorship, but upon the death
of one spouse, the surviving spouse retains the entire
interest rather than acquiring the decedent's interest.
Most jurisdictions have abolished this estate. -Also
termed estate by the entirety; estate by entireties; estate
by the entireties; tenancy by the entirety; tenancy by the
entireties. Cf joint tenancy and tenancy in common
under TE:-<ANCY. [Cases: Husband and Wife
14.2.]
estate by purchase. An estate acquired in any manner
other than by descent. See PURCHASE.
estate by statute staple. An estate in a defendant's land
held by a creditor under the statute staple until the
debt was paid. See STATUTE STAPLE.
estate by the curtesy ofEngland. See CURTESY.
estate for a term. See tenancy for a term under
TENANCY.
estate for life. See life estate.
estate for years. See tenancy for a term under
TE:-<ANCY.
estate in common. See tenancy in common under
TENANCY.
estate in fee simple. See FEE SIMPLE.
estate infee tail. See FEE TAIL.
estate in gage. An estate that has been pledged as
security for a debt. See MORTGAGE.
estate in partnership. A joint estate that is vested in
the members ofa partnership when real estate is pur
chased with partnership funds and for partnership
purposes. [Cases: Partnership
estate in possession. An estate in which a present
interest passes to the tenant; an estate in which the
tenant is entitled to receive the rents and other profits
arising from the estate. [Cases: Estates in Property
1.]
estate in remainder. See REMAINDER (1).
estate in reversion. See REVERSION (1). estate
estate in severalty (sev-<J-r<Jl-tee). An estate held by a
tenant separately, without any other person being
joined or connected in interest.
estate in tail. See FEE TAIL.
estate in vadio (in vad-ee-oh). An estate in gage or
pledge. See MORTGAGE.
estate less than freehold. An estate for years, an estate
at will, or an estate at sufferance.
estate on condition. (ISc) An estate that vests, is
modified, or is defeated upon the occurrence or non
occurrence of some specified event. -While an estate
on limitation can revert without any action by the
grantor or the grantor's heirs. an estate on condition
requires the entry ofthe grantor or the grantor's heirs
to end the estate whenever the condition occurs.
Also termed estate on conditional limitation; condi
tional estate. Cf. estate on limitation.
estate on conditional limitation. See estate on condi
tion.
estate on condition expressed. (ISc) A contingent estate
in which the condition upon which the estate will fail
is stated explicitly in the granting instrument.
estate on condition implied. (I8c) A contingent estate
haVing some condition that is so inseparable from
the estate's essence that it need not be expressed in
words.
estate on limitation. (lSc) An estate that automati
cally reverts back to the grantor according to a pro
vision, usu. regarding the passage of a determined
time period, designated by words such as "during,"
"while," and "as long as." Seefee simple determinable
under FEE SIMPLE. Cf. estate on condition.
estate pur autre vie. See life estate pur autre vie.
estate tail. See FEE TAIL.
estate tail quasi. An estate granted by a life tenant,
who, despite using language of conveyance that is
otherwise sufficient to create an estate tail, is unable
to grant in perpetuity.
executed estate. See REMAINDER (I).
expectant estate. See FUTURE INTEREST.
fast estate. See real property under PROPERTY.
freehold estate. See FREEHOLD.
future estate. See FUTURE INTEREST.
joint estate. (ISc) Any of the follOWing five types of
estates: (1) a joint tenancy, (2) a tenancy in common,
(3) an estate in coparcenary (a common-law estate
in which coheirs hold as tenants in common), (4) a
tenancy by the entirety, or (5) an estate in partner
ship. [Cases: Husband and Wife C::"::> 14.2-14.7; Joint
Tenancy Tenancy in Common
landed estate. An interest in real property, esp.
suburban or rural land, as distinguished from real
estate situated in a city. -Also termed landed
property.
leasehold estate. See LEASEHOLD.
628 estate
legal estate. An interest enforced in law rather than
in equity.
legal life estate. See life estate.
life estate. (l8c) An estate held only for the duration of a
specified person's life, usu. the possessor's. -Most life
estates created, for example, by a grant "to Jane for
life" are beneficial interests under trusts, the corpus
often being personal property, not real property.
Also termed estate for life; legal life estate; life tenancy.
See LIFE TENANT. [Cases: Ufe Estates C=o 1.]
life estate pur autre vie (p;:lr oh-tr;:l vee). (1888) A life
estate for which the measuring lite -the life whose
duration determines the duration of the estate -is
someone's other than the possessor's. Also spelled
life estate per autre vie. [Cases: Ufe Estates C=o 1.]
marital estate. See marital property under PROPERTY.
next eventual estate. (1836) An estate taking effect
upon an event that terminates the accumulation of
undisposed rents and profits; an estate taking effect
when the existing estate terminates.
nonancestral estate. An estate from any source other
than the owner's ancestors. -Also termed nonances
tral property.
nonfreehold estate. Any estate in real property without
seisin, such as an estate for years, from period to
period, at will, or at sufferance; any estate except a
|
seisin, such as an estate for years, from period to
period, at will, or at sufferance; any estate except a
fee simple, fee tail, or life estate.
original estate. An estate that is the first of one or more
derivative estates, bearing to each other the relation
of a particular estate and a reversion.
particular estate. An estate or interest less than a fee
simple, such as a fee tail, a life estate, or a term for
years. _ It is so called because the estate is a mere part
(particula) of the fee Simple.
periodic estate. See periodic tenancy under TENANCY.
possessory estate. (18c) An estate giving the holder the
right to possess the property, with or without an own
ership interest in the property.
present estate. An estate in immediate possession; one
vested at the present time, as distinguished from a
future estate. See present interest under INTEREST
(2).
qualified estate. Any estate that is not absolute and
unconditional; a limited or conditional estate.
reversionary estate. See REVERSION.
separate estate. 1he individual property of one oftwo
persons who stand in a marital or business relation
ship. See SEPARATE PROPERTY. Divorce
252.3(3); Husband and Wife 10-202.]
settled estate. An estate created or limited under a
settlement; an estate in which the powers of alien
ation, devising, and transmission according to the
ordinary rules ofdescent are restrained by the settle
ment's terms. stipendiary estate (stI-pen-dee-er-ee). Hist. An estate
granted in return for services, usu. of a military
kind.
vested estate. (18c) An estate with a present right of
enjoyment or a present fixed right of future enjoy
ment.
2. All that a person or entity owns, including both real
and personal property.
bankruptcy estate. See BANKRUPTCY ESTATE.
3. The property that one leaves after death; the col
lective assets and liabilities of a dead person. [Cases:
Executors and Administrators C=o38-73.]
"The word 'estate' was probably adopted because in early
days it was possible to ascertain a man's status or position
in life by discovering the particular kind of tenure by which
he held his lands. The quality of his tenure gave a clue to
his status. The baron for example ought in theory to be the
holder of a barony; he has the status of a baron because he
has the estate of a baron .... [O]ne of the distinguishing
marks of [the] freehold estates was the uncertainty of their
duration. They were invariably held either for life, or for
some other space of time dependent upon an event which
might not happen within a lifetime, and thus a freehold
estate came to be regarded as one which involved the per
formance of free services only, but as one which endured
for an uncertain time. In this way, the word 'estate' came
to denote the quantity of a man's interest in land." C.c.
Cheshire, Modern Law ofReal Property 26 (3d ed. 1933).
adjusted gross estate. 1. The total value ofa decedent's
property after subtracting administration expenses,
funeral expenses, creditors' claims, and casualty
losses. _ The value ofthe adjusted gross estate is used
in computing the federal estate tax. Cf. net probate
estate under PROBATE ESTATE. 2. See gross estate (1).
ancestral estate. An estate that is acquired by descent
or by operation of law with no other consideration
than that ofblood.
augmented estate. A refinement of the elective share
to which a surviving spouse is entitled, whereby the
"fair share" is identified as something other than
the traditional one-third of the probate estate . The
current version ofthe Uniform Probate Code uses a
sliding scale that increases with each year of marriage.
Under the UPC, a surviving spouse has accrued full
marital-property rights after 15 years of marriage.
This percentage of spousal entitlement is applied to
a reconceptualization of the decedent's estate to take
into account more than just the assets remaining in
the probate estate at death. Also added into the calcu
1ation are the value ofcertain inter vivos transfers that
the decedent made to others in a way that depleted the
probate estate; the value of similar transfers made to
others by the spouse as well as the value of the marital
property owned by the spouse at the decedent's death;
and the value ofinter vivos transfers of property made
by the decedent to the spouse. The Uniform Probate
Code adopted this version of the augmented-estate
concept in an attempt to equalize the treatment of
surviving spouses in non-community-property states
vis-a.-vis community- property states. Unif. Probate
629
Code 2-202. See ELECTIVE SHARE. [Cases: Wills ~~
778-803.]
decedent's estate. (18c) The real and personal property
that a person possesses at the time of death and that
passes to the heirs or testamentary beneficiaries.
[Cases: Executors and Administrators (...'":::'38-73.]
estate ofinheritance. An estate that may descend to
heirs.
gross estate. 1. The total value of a decedent's property
without any deductions. 2. Loosely, adjusted gross
estate. [Cases: Internal Revenue (;::=>4168-4182.30.]
heirless estate. The property of a person who dies intes
tate and without heirs. See ESCHEAT.
net estate. See net probate estate under PROBATE
ESTATE.
netprobate estate. See PROBATE ESTATE.
probate estate. See PROBATE ESTATE.
residuary estate. (18c) The part of a decedent's estate
remaining after payment of all debts, expenses, stat
utory claims, taxes, and testamentary gifts (special,
general, and demonstrative) have been made. -Also
termed residual estate; residue; residuary; residuum.
[Cases: Wills
taxable estate. (18c) A decedent's gross estate reduced
by allowable deductions (such as administration costs
and ESOP deductions). IRC (26 USCA) 2051. _ The
taxable estate is the amount that is subject to the
federal unified transfer tax at death. [Cases: Internal
Revenue C::::'4168-4182.30.]
4. A tract ofland, esp. one affected by an easement.
"The old definitions of this word [estate] generally confine
it to lands or realty. Thus, according to lord Coke. 'state or
estate signifieth such inheritance, freehold. term for years,
&c., as any man hath in lands or tenements.' Co. Utt. 345a.
So Cowell defines it to be 'that title or interest which a man
hath in lands or tenements; and the same definition is
given in the Termes de la Ley. And this limited sense of the
word has been relied on, in argument, in some cases ....
But. according to the settled modern doctrine, the term
estate is of much more extensive import and application,
being indeed genus generalissimum. and clearly compre
hending things personal as well as real; person as well as
real estate." 1 Alexander M. Burrill, A Law Dictionary and
Glossary 561 (2d ed. 1867).
dominant estate. (18c) An estate that benefits from
an easement. Also termed dominant tenement;
dominant property; upper estate. Cf. servient estate.
[Cases: Easements (;::=> 1,38.]
lower estate. See servient estate.
real estate. See real property under PROPERTY.
servient estate (s;Jr-vee-;mt). (I8c) An estate burdened
by an easement. Also termed servient tenement;
servient property; lower estate. Cf. dominant estate.
lCases: Easements 38.]
upper estate. See dominant estate.
estate duty. See DUTY (4).
estate freeze. (I986) An estate-planning maneuver
whereby an owner ofa closely held business exchanges estoppel
common stock for dividend-paying preferred stock and
gives the common stock to his or her children, thus
seeking to guarantee an income in retirement and to
avoid estate tax on future appreciation in the business's
value.
estate from period to period. See periodic tenancy under
TENANCY.
estate in expectancy. See FUTURE INTEREST.
estate in freehold. See FREEHOLD.
estate in lands. (16c) 1. Property that one has in lands,
tenements, or hereditaments, [Cases: Estates in
Property 1.] 2. The conditions or circumstances
under which a tenant stands in relation to the leased
property.
estate in remainder. See REMAINDER (1).
estate planning. (1938) 1. The preparation for the dis
tribution and management ofa person's estate at death
through the use ofwills, trusts, insurance policies, and
other arrangements, esp. to reduce administration costs
and transfer-tax liability. [Cases: Wills 1-202.]2.
A branch of law that involves the arrangement of a
person's estate, taking into account the laws ofwills,
taxes, insurance, property, and trusts.
estates of the realm. I. The lords spiritual, the lords
temporal, and the commons of Great Britain. Also
termed the three estates. 2. In feudal Europe, the clergy,
nobles, and commons. -Because the lords spiritual
had no separate assembly or negative in their political
capacity, some authorities reduce the estates in Great
Britain to two, the lords and commons. In England
(until about the 14th century), the three estates of the
realm were the clergy, barons, and knights. In legal
practice, the lords spiritual and lords temporal are usu.
collectively designated simply as lords.
estate's property. See PROPERTY OF THE ESTATE.
estate tax. See TAX.
estate trust. See TRUST.
ester in judgment (es-t<lr). [Law French] To appear before
a tribunal, as either plaintiff or defendant.
estimated damages. See liqUidated damages under
DAMAGES.
estimated tax. See TAX.
estimated useful life. See USEFUL LIFE.
estop (e-stop), vb. (15c) To bar or prevent by estoppel.
estoppage (e-stop-ij), n. (I8c) The state or condition of
being estopped.
estoppel (e-stop-;:JI), n. (16c) 1. A bar that prevents one
from asserting a claim or right that contradicts what
one has said or done before or what has been legally
established as true. [Cases: Estoppel (...~52-59.]2. A bar
that prevents the relitigation of issues. 3. An affirmative
defense alleging good-faith reliance on a misleading
representation and an injury or detrimental change in
position resulting from that reliance. Cf. WAIVER (1).
[Cases: Estoppel C::::'83-87.] estop, vb.
630 estoppel
'''Estoppe,' says Lord Coke, 'cometh of the French word
estoupe, from whence the English word stopped; and it is
called an estoppel or conclusion, because a man's own act
or acceptance stoppeth or c!oseth up his mouth to allege
or plead the truth.' [Co. Litt. 352a.] Estoppel may also be
defined to be a legal result or 'conclusion' arising from an
admission which has either been actually made, or which
the law presumes to have been made, and which is binding
on all persons whom it affects." Lancelot Feilding Everest.
Everest and Strode's Law ofEstoppel 1 (3d ed. 1923).
"In using the term 'estoppel,' one is of course aware of its
kaleidoscopic varieties. One reads of estoppel by conduct,
by deed, by laches, by misrepresentation, by negligence, by
Silence, and so on. There is also an estoppel by judgment
and by verdict; these, however, obviously involve proce
dure. The first-named varieties have certain aspects in
common. But these aspects are not always interpreted by
the same rules in all courts, The institution seems to be
flexible." John H. Wigmore, "The Scientific Role of Consid
eration in Contract," in Legal Essays in Tribute to Orrin Kip
McMurrav641 , 643 (1935).
administrative collateral estoppel. See COLLATERAL
ESTOPPEL.
assignee estoppel. Patents. The equitable doctrine
that bars the assignee of a patent from contesting
the patent's validity under some circumstances, as
when the assignee seeks to avoid royalty payments, to
void an assignment contract, or to mitigate damages
related to the assignee's fraudulent acquisition ofthe
patent. _ The doctrine prevents an assignee from
Simultaneously attacking and defending the validity
of the same patent. [Cases: Patents C=> 129(3).]
assignor estoppel. Patents. Estoppel barring someone
who has assigned the rights to a patent from later
attacking the patent's validity. Westinghouse Elec.
& Mfg. Co. v. Formica Insulation Co., 266 U.S. 342,
45 S.Ct. 117 (1924). The doctrine was narrowed by
Diamond Scientific Co. v. Ambico, Inc., 848 F,2d 1220
(Fed. Cir. 1988), 'in which the court held that in some
circumstances equity may outweigh the public-policy
reasons behind the estoppel doctrine. [Cases: Patents
collateral estoppel. See COLLATERAL ESTOPPEL.
equitable estoppel. (18c) 1. A defensive doctrine pre
venting one party from taking unfair advantage of
another when, through false language or conduct, the
person to be estopped has induced another person
to act in a certain way, with the result that the other
person has been injured in some way. -This doctrine
is founded on principles of fraud. The five essential
elements of this type of estoppel are that (1) there
was a false representation |
founded on principles of fraud. The five essential
elements of this type of estoppel are that (1) there
was a false representation or concealment ofmaterial
facts, (2) the representation was known to be false by
the party making it, or the party was negligent in not
knowing its falsity, (3) it was believed to be true by the
person to whom it was made, (4) the party making
the representation intended that it be acted on, or
the person acting on it was justified in assuming
this intent, and (5) the party asserting estoppel
acted on the representation in a way that will result
in substantial prejudice unless the claim of estoppel
succeeds. Also termed estoppel by conduct; estoppel in pais. [Cases: Estoppel ~--=52-96.12. See promissory
estoppel.
estoppel by conduct. See equitable estoppel.
estoppel by contract. A bar that prevents a person from
denying a term, fact, or performance arising from a
contract that the person has entered into.
estoppel by deed. Estoppel that prevents a party to a
deed from denying anything recited in that deed if
the party has induced another to accept or act under
the deed; esp., estoppel that prevents a grantor of a
warranty deed, who does not have title at the time
of the conveyance but who later acquires title, from
denying that he or she had title at the time of the
transfer. See AFTER-ACQUlRED-TITLE DOCTRINE.
Also termed estoppel by warranty. [Cases: Estoppel
"The apparent odiousness of some classes of estoppel,
chiefly estoppels by deed, seems to result not so much
from the nature of an estoppel, as from the highly techni
cal rules of real property law upon which it operated, and
with which it was aSSOCiated. Estoppels by record, indeed,
stand upon a considerably higher footing than estoppels by
deed ...." Lancelot Feilding Everest, Everest and Strode's
Law ofEstoppel 10 (1923).
estoppel by election. The intentional exercise of a choice
between inconsistent alternatives that bars the person
making the choice from the benefits of the one not
selected.
estoppel by inaction. See estoppel by silence.
estoppel by judgment. See COLLATERAL ESTOPPEL.
estoppel by laches. (1894) An equitable doctrine by
which some courts deny relief to a claimant who has
unreasonably delayed or been negligent in asserting
a claim. [Cases: Equity C=>67.]
estoppel by misrepresentation. An estoppel that
arises when one makes a false statement that induces
another person to believe something and that results
in that person's reasonable and detrimental reliance
on the belief. [Cases: Estoppel
estoppel by negligence. An estoppel arising when a neg
ligent person induces someone to believe certain facts,
and then the other person reasonably and detrimen
tally relies on that belief. [Cases: Estoppel
estoppel by record. See COLLATERAL ESTOPPEL
estoppel by representation. An estoppel that arises
when one makes a statement or admission that
induces another person to believe something and that
results in that person's reasonable and detrimental
reliance on the belief; esp., equitable estoppel. [Cases:
Estoppel C=>82-87.]
estoppel by silence. (1872) Estoppel that arises when
a party is under a duty to speak but fails to do so.
Also termed estoppel by standing by; estoppel by
inaction. [Cases: Estoppel
estoppel by standing by. See estoppel by silence.
estoppel by verdict. See COLLATERAL ESTOPPEL.
estoppel by warranty. See estoppel by deed.
631
estoppel in pais. See equitable estoppel.
estoppel on the record. See prosecution-history
estoppel.
file-wrapper estoppel. See prosecution-history
estoppel.
judicial estoppel. (1886) Estoppel that prevents a
party from contradicting previous declarations
made during the same or an earlier proceeding ifthe
change in position would adversely affect the pro
ceeding or constitute a fraud on the court. -Also
termed doctrine ofpreclusion ofinconsistent positions;
doctrine ofthe conclusiveness ofthe judgment. [Cases:
Estoppel ~68.]
legal estoppel. Estoppel recognized in law (as distin
guished from equitable estoppel or estoppel in pais),
such as an estoppel resulting from a recital or other
statement in a deed or official record, and preclud
ing any denial or assertion concerning a fact. [Cases:
Estoppel
marking estoppel. Patents. Estoppel that prevents a
party from asserting that a product is not covered by
a patent if that party has marked the product with a
patent number. -This type ofestoppel has been ques
tioned in recent years, and has been sharply limited
by some courts. [Cases: Patents ~222.]
promissory estoppel. (1924) The principle that a
promise made without consideration may nonethe
less be enforced to prevent injustice if the promisor
should have reasonably expected the promisee to
rely on the promise and ifthe promisee did actually
rely on the promise to his or her detriment. -Also
termed (inaccurately) equitable estoppel. [Cases:
Estoppel ~85.]
''The doctrine of promissory estoppel is equitable in origin
and nature and arose to provide a remedy through the
enforcement of a gratuitous promise. Promissory is distinct
from equitable estoppel in that the representation at issue
is promissory rather than a representation offact. 'Promis
sory estoppel and estoppel by conduct are two entirely
distinct theories. The latter does not require a promise.'"
Ann Taylor Schwing, California Affirmative Defenses
34:16, at 35 (2d ed. 1996) (quoting Division of Labor Law
Enforcement v. Transpacific Transp. Co., 88 Cal. App. 3d
823,829 (Cal. Ct. App. 1979.
prosecution-history estoppel. Patents. lhe doctrine
limiting a patent-holder's invocation of the doctrine
of equivalents by eliminating from the claims those
elements that the holder surrendered or abandoned
during the prosecution of the patent. -Also termed
estoppel on the record; file-wrapper estoppel. See
DOCTRINE OF EQUIVALENTS. [Cases: Patents
168(2.1).]
quasi-estoppel. (1823) An equitable doctrine prevent
ing one from repudiating an act or assertion if it
would harm another who reasonably relied on the
act or assertion.
technical estoppel. 1. An estoppel arising from a matter
of record or from a deed made by the party who is
claimed to be estopped. -Estoppels by deed or by
record are called "technical" because the rules of estrepement
estoppel apply with certainty in appropriate cases.
[Cases: Estoppel~' 1, 12.]2. COLLATERAL ESTOPPEL.
See estoppel by deed.
estoppel certificate. (1897) 1. A signed statement by a
party (such as a tenant or a mortgagee) certifying for
another's benefit that certain facts are correct, such as
that a lease exists, that there are no defaults, and that
rent is paid to a certain date. - A party's delivery of
this statement estops that party from later claiming a
different state offacts. 2. See WAIVER OF CLAIMS AND
DEFENSES.
estoppel per rem judicatam (p;3r rem joo-di-kay-t;3m).
See COLLATERAL ESTOPPEL.
estover (e-stoh-var). (usu. pl.) 1. Wood that a tenant is
allowed to take for fuel, the manufacture or repair of
agricultural instruments, and the erection and mainte
nance of fences and hedges; necessary supplies. Also
termed botes. See BOTE (1); common ofestovers under
COMMON. 2. The tenant's right to obtain that wood. 3.
ALIMONY.
estoveriis habendis (es-td-veer-ee-is hd-ben-dis). [Latin]
Hist. See DE ESTOVERIIS HABENDIS.
estrange, vb. 1. To separate, to keep away (a person or
thing), or to keep away from (a person or thing). 2.
To destroy or divert affection, trust, and loyalty.
estrangement, n.
estray (e-stray), n. 1. A valuable tame animal found
wandering and ownerless; an animal that has escaped
from its owner and wanders about. -At common law,
an estray belonged to the Crown or to the lord of the
manor, but today the general rule is that it passes to
the state in trust for the true owner, who may regain it
by proving ownership. An animal cannot be an estray
when on the range where it was raised and where its
owner permits it to run, and esp. when the owner is
known to the party who takes the animal. [Cases:
Animals ~58.1 2. FLOTSAM.
estreat (e-street), n. (15c) A copy or duplicate of some
original writing or record, esp. of a fine or amercement
imposed by a court, extracted from the record, and cer
tified to one who is authorized and required to collect
it. -Also termed (in Scots law) extract.
estreat, vb. (16c) To take out a forfeited recognizance
from the recordings ofa court and return it to the court
to be prosecuted.
estrepe (e-streep), vb. (17c) 1. To strip; to despoil; to
commit waste upon an estate, as by cutting down trees
or removing buildings. 2. To injure the value ofa rever
sionary interest by stripping or spoiling the estate. See
WASTE (1).
estrepement (e-streep-mant), n. (16c) A species ofaggra
vated waste, by stripping or devastating land to the
injury ofthe reversioner, esp. pending a suit for posses
sion. See DE ESTREPAMENTO. [Cases: Waste C::> 16.J
et, con}. [Latin] And. This conjunction was the intro
ductory word ofseveral Latin and Law French phrases
that were once common.
et adjournatur (et aj-<1r-nay-t<1r). [Latin] Hist. And it is
adjourned. This phrase was used in the old reports,
when argument ofa case was adjourned to another day,
or where a second argument was had.
et al. (et al or ahl). abbr. 1. [Latin et alii or et alia] And
other persons <the office of Thomas Webb et al.>. 2.
[Latin et alibi] And elsewhere.
et alii e contra (et ay-Iee-I ee kon-tr<1). [Latin "and others
on the other side"] Hist. A phrase often used in the Year
Books, describing a joinder in issue.
et alius (et ay-Iee-<1s). [Latin] And another.
et allocatur (et al-<1-kay-t<1r). [Latin] And it is allowed.
etc. abbr. ET CETERA.
et cetera (et set-<1r-<1). [Latin "and others"] (12c) And
other things. The term usu. indicates additional,
unspecified items in a series. -Abbr. etc.
et de ceo se mettent en Ie pays (ay d<1 say-oh S<1 me-tawn
on 1<1 pay). [Law French] Hist. And of this they put
themselves upon the country. See CONCLUSION TO THE
COUNTRY; GOING TO THE COUNTRY.
et de hoc ponit se super patriam (et dee hok poh-nit see
s[y]oo-p<1r pay-tree-<1m). [Latin] Hist. And of this he
puts himself upon the country. This was the formal
conclusion of a common-law plea in bar by way of
traverse.
et ei legitur in haec verba (et ee-I lee-j<1-t<1r in heek
v<1r-b<1). [Latin] Hist. And it is read to him in these
words. This phrase was formerly used in entering
the prayer ofoyer on the record.
eternal law. See NATURAL LAW.
et habeas ibi tunc hoc breve (et hay-bee-<1s ib-I t<1ngk
hok bree-vee). [Latin] Hist. And that you have then and
there this writ. These were the formal words directing
the return ofa writ. The literal translation was retained
in the later form ofa considerable number ofwrits.
et habuit (et hab-yoo-it). [Latin "and he had [it]"] Hist.
A common phrase in the Year Books, indicating that a
party's application or demand was granted.
ethical, adj. (16c) 1. Of or relating to moral obligations
that one person owes another; esp., in law, of or relating
to legal ethics <the ethical rules regarding confidences>.
See LEGAL ETHICS. 2. In conformity with moral norms
or standards of professional conduct <refusing to
identify the informant was a perfectly ethical act>.
ethical absolutism. See MORAL ABSOLUTISM.
ethical consideration. (often cap.) A structural compo
nent of the ethical canons set forth in the legal pro
fession's Model Code of Professional Responsibility,
containing a goal or ethical principle intended to guide
a lawyer's professional conduct. Ethical considerations
are often used in the interpretation and application of
the Model Rules of Professional Conduct. -Abbr. EC. Cf. DISCIPLINARY RULE. [Cases: Attorney and Client
C=>32(2).]
ethical drug. See DRUG.
ethical jurisprudence. See JURISPRUDENCE.
ethical relativism. See MORAL RELATIVISM.
ethical wall. (1988) A screening mechanism maintained
by an organization, esp. a law firm, to protect client
confidences from improper disclosure to lawyers or
staff who are not involved in a particular representa
tion. The screening mechanism is designed to prevent
lawyer |
lawyers or
staff who are not involved in a particular representa
tion. The screening mechanism is designed to prevent
lawyer or law-firm disqualification from certain rep
resentations because of conflicts of interest. -Also
termed screening mechanism; Chinese wall. [Cases:
Attorney and Client C=>21.15.]
ethics. See LEGAL ETHICS.
ethnic cleansing. (1991) The officially sanctioned forcible
and systematic diminution or elimination of targeted
ethnic minorities from a geographic area, usu. by con
fiscating real and personal property, ordering or con
doning mass murders and mass rapes, and expelling
the survivors . In theory, the purpose ofethnic cleans
ing is to drive all members ofthe victimized group out
ofa territory. In practice, ethnic cleansing is nearly syn
onymous with genOcide as mass murder is a charac
teristic ofboth. Ethnic cleansing additionally includes
mass rapes for two cultural reasons: (1) the victims are
often put to death by their relatives or commit suicide,
and (2) any children born are regarded as belonging to
the father's ethnic group, not the mother's. Both acts
murder and rape -are intended to diminish or extin
guish the victimized minority. Cf. GENOCIDE.
ethnic profiling. See RACIAL PROFILING.
et hoc paratus est verificare (et hok p<1-ray-t<1s est ver
<1-fi-kair-ee). [Latin] And this he is prepared to verify.
This phrase traditionally concluded a plea in confes
sion and avoidance, or any pleading that contained new
affirmative matter. A pleading containing this phrase
was technically said to "conclude with a verification,"
as opposed to a simple denial.
et hoc petit quod inquiratur per patriam (et hok pet-it
kwod in-kw<1-ray-t<1r p<1r pay-tree-<1m). [Latin "and
this he prays may be inquired of by the country"]
Archaic. The conclusion of a plaintiff's pleading that
tendered an issue to the country. See CONCLUSION TO
THE COUNTRY.
etiam causa non cognita (ee-shee-<1m kaw-z<1 non kog
ni-t<1). [Latin] Hist. Even where the cause is not known;
absent an investigation . Some decrees could be issued
without a full factual inquiry or trial.
etiam in articulo mortis (ee-shee-<1m in ahr-tik-p-Ioh
mor-tis). [Latin] Scots law. Even at the point of death.
The phrase appeared in reference to a circumstance
under which one could revoke a will.
etiam in lecto (ee-shee-<1m in lek-toh). [Law Latin] Hist.
Even upon deathbed.
et inde petitjudicium (et in-dee pet-it joo-dish-ee-<1m).
[Latin "and thereupon he prays judgment"] Archaic.
633
A clause found at the end of a pleading, requesting
judgment in that party's favor.
etiquette of the profession. See LEGAL ETIQUETTE.
et modo ad hunc diem (et moh-doh ad hangk dI-dm).
[Latin "and now at this day"] Archaic. The formal begin
ning of an entry ofappearance or ofa continuance.
et non (et non). [Latin "and not"] Archaic. A phrase
formerly used in pleading to introduce the negative
averments ofa special traverse. See ABSQUE HOC.
et seq. (et sek). abbr. [Latin et sequens "and the folloWing
one," et sequentes (masc.) "and the following ones," or
et sequentia (neuter) "and the following ones"] (18c)
And those (pages or sections) that follow <11 USCA
101 et seq.>.
et sic (et sik). [Latin "and so"] Archaic. The introductory
words ofa special conclusion to a plea in bar, intending
to render the plea positive and not argumentative.
et sic ad judicium (et sik ad joo-dish-ee-ilm). [Latin]
Archaic. And so to judgment.
et sic ad patriam (et sik ad pay-tree-dm). [Latin] Hist.
And so to the country. _ This phrase was used in the
Year Books to record an issue to the country.
et sic de anno in annum quamdiu ambo bus partibus
placuerit (et sik dee an-oh in an-dm kwam-dee-yoo
am-bil-b<ls pahr-til-bils plak-yoo-air-it). Hist. And so,
from year to year, so long as both parties please, or
are agreed. -The phrase appeared in reference to tacit
relocation. See TACIT RELOCATION.
et sic jecit (et sik fee-sit). [LatinJ Archaic. And he did
so.
et sic pendet (et sikpen-dit). [Latin] Hist. And so ithangs.
-This phrase was used in the old reports to signify that
a point was left undetermined.
et sic ulterius (et sik <ll-teer-ee-ils). [Latin] Archaic. And
so on; and so further; and so forth.
et uxor (et ak-8or). [LatinJ Archaic. And wife. -This
phrase was formerly common in case names and legal
documents (esp. abstracts oftitle) involving a husband
and wife jointly. It usu. appears in its abbreviated form,
et ux. <conveyed the land to Donald Baird et ux.>. See
UXOR.
et vir (et veer). [Latin] Archaic. And husband. See VIR.
EU. abbr. EUROPEAN L"NION.
Euclidean zoning. See ZONING.
eundo et redeundo (ee-an-doh et red-ee-,m-doh). [Latin]
Hist. Going and returning. -This phrase was once used
to describe vessels in transit.
eundo, morando, etredeundo (ee-an-doh, mil-ran-doh,
et red-ee-;m-doh). [LatinJ Hist. GOing, remaining, and
returning. -This phrase was once used to describe a
person (for example, a witness or legislator) who is priv
ileged from arrest while traveling to the place where
aSSigned duties are to be performed, while remaining
there, and while returning. European Copyright Directive
eunomy (yoo-nil-mee), n. (l9c) A system of good laws
that lead to civil order and justice. -Also termed
eunomia. Cf. DYSNOMY. eunomic, adj.
Euratom. A European Union organization that coor
dinates the development and use of nuclear energy in
Europe. -It was created in 1958 and merged with the
European Economic Community in 1967. Itis governed
by the Council ofthe European Union.
eureka model. Patents. The view that the inventive
process is the product of a stroke ofluck rather than
labor. _ The notion is used to counter labor-based
theories justifying intellectual-property rights, since
no labor is involved in a "eureka" discovery. ct LABOR
DESERT MODEL; VALUE-ADDED MODEL.
eureka moment. Slang. The instant when an inventor
realizes the answer to a question or the Significance of
a discovery. Also termed flash ofgenius.
Euribor. abbr. EURO INTERBANK OFFERED RATE.
euro (yuur-oh). (1981) The official currency of most
countries in the European Union. -On January 1, 1999,
the euro became the single currency of the participat
ing countries. Euro notes and coins began circulating
on January 1, 2002.
Eurodollar. (1960) United States currency held in a bank
outside the U.S., usu. in Europe, and used to settle
international transactions.
Euro Interbank Offered Rate. A measure ofwhat major
international banks charge each other for large-vol
ume, short-term loans ofeuros, based on interest-rate
data prOVided daily by a panel of representative banks
across Europe. -Abbr. Euribor. Cf. LONDON INTER
BANK OFFERED RATE.
European Commission ofHuman Rights. A body ofthe
Council ofEurope charged with overseeing the opera
tion of the European Convention on Human Rights.
The commission was abolished in 1998. The European
Court of Human Rights absorbed its functions. See
EUROPEAN COURT OF HUMAN RIGHTS.
European Community. See EUROPEAN UNION.
European Convention on Human Rights and Funda
mental Freedoms. A 1950 international agreement to
protect human rights. -The European Commission
for Human Rights and the European Court for Human
Rights were created under the convention's terms.
[Cases: Treaties C='8.J
European Copyright Directive. An official instruction
ofthe European Union designed to promote uniformity
in certain aspects of copyright law and related rights,
esp. on the Internet. -Officially titled Directive 2001/29
on the Harmonisation ofCertain Aspects ofCopyright
and Related Rights in the Information Society, this is
the European Union equivalent of the Digital Millen
nium Copyright Act. Among other provisions, the
directive provides broad exclusive rights of reproduc
tion and distribution to copyright holders, and requires
E.U. member nations to prohibit the circumvention of
technical measures and devices intended to prevent
634 European Court of Human Rights
the alteration or reproduction of copyrighted works.
[Cases: Copyrights and Intellectual Property C==>34.]
European Court ofHuman Rights. The judicial body
of the Council of Europe. 'the court was set up in
1959 and was substantially changed in 1994-1998. As
of 2008, the court had 47 judges, each elected by the
Council of Europe's Parliamentary Assembly. The court
adjudicates alleged violations of the civil and political
rights enumerated in the Convention for the Protection
of Human Rights and Fundamental Freedoms.
European Currency Unit. A monetary unit that was the
precursor of the euro. -Created in 1979, it was an arti
ficial currency used by the members of the European
Union as their internal accounting unit. It ceased to
exist in January 1999, when it was replaced by the
euro. Abbr. ECV; ecu. See EURO.
European Economic Community. See EUROPEAN
UNION.
European law. (1844) 1. The law of the European Union.
2. More broadly, the law of the European Union,
together with the conventions ofthe Council ofEurope,
including the European Convention on Human Rights.
3. More broadly still, all the law current in Europe,
including the law ofEuropean organizations, the North
Atlantic Treaty Organization, and all the bilateral and
multilateral conventions in effect, as well as European
customary law.
European option. See OPTION.
European Patent Convention. A 1973 treaty allowing
a patent applicant to obtain patent protection in all
signatory nations, mostly European Union members,
through a single blanket filing and examination
procedure. -The Community patent is valid in any
member nation in which it is registered. The procedure
is administered through the European Patent Office
in Munich, Germany and The Hague, Netherlands. -
Abbr. EPe. Also termed Convention on the Grant of
European Patent.
European Patent Office. The office that receives filings,
conducts examinations, and issues Community patents
applied for under the European Patent Convention.
The office is located in Munich, Germany, and The
Hague, Netherlands.
European Patent Organization. A centralized patent
grant system, established in 1978, comprising a leg
islative body (the Administrative Council) and an exec
utive body (the Patent Office).
European-style option. See European option under
OPTION.
European Union. An association of European nations
whose purpose is to achieve full economic unity (and
eventual political union) by agreeing to eliminate
barriers to the free movement of capital, goods, and
labor among the member-nations. -The European
Union was formed as the European Economic Com
munity (EEC) by the Treaty of Rome in 1957, and
later renamed the European Community (EC). The European Community became the European Union
when the Maastricht Treaty on European Union took
effect in November 1993. Abbr. EU.
euthanasia (yoo-th,,-nay-zh,,), n. (1869) The act or
practice of causing or hastening the death of a person
who suffers from an incurable or terminal disease or
condition, esp. a painful one, for reasons of mercy.
Euthanasia is sometimes regarded by the law as second
degree murder, manslaughter, or criminally negligent
homicide. In 2001, the Netherlands became the first
nation to legalize euthanasia. Also termed mercy
killing. See LIVING WILL; ADVANCE DIRECTIVE. Cf.
assisted suicide under SUICIDE; DYATHANASIA. [Cases:
Homicide euthanasic (yoo-th,,-nay-zik),
a~j.
"The translation of the Greek word euthanasia -'easy
death' contains an ambiguity. It connotes that the means
responsible for death are painless, so that the death is
an easy one. But it also suggests that the death sought
would be a relief from a distressing or intolerable condi
tion of living (or dying), 50 that death. and not merely the
means through which it is achieved, is good or right in
itself. Usually, both aspects are intended when the term
euthanasia is used; but when that is not the case, there
can be consequences in legal analysis." Alexander Morgan
Capron, "Euthanasia," in 2 Encyclopedia ofCrime andJustice
709, 709 (Sanford H. Kadish ed., 1983).
active euthanasia. Euthanasia performed by a facilita
tor (such as a healthcare practitioner) who not only
provides the means of death but also carries out the
final death-causing act.
involuntary euthanasia. Euthanasia of a competent,
nonconsenting person.
non voluntary euthanasia. Euthanasia ofan incompe
tent, and therefore nonconsenting, person.
passive euthanasia |
ia. Euthanasia ofan incompe
tent, and therefore nonconsenting, person.
passive euthanasia. The act of allowing a terminally ill
person to die by either Withholding or withdrawing
life-sustaining support such as a respirator or feeding
tube.
voluntary euthanasia. Euthanasia performed with the
terminally ill person's consent. [Cases: Health
913.]
euthanize (yoo-th,,-nIz), vb. (1873) To put to death by
euthanasia. This term is used chiefly in reference to
animals. Also termed euthanatize.
evacuee. A person who has been evacuated, esp. because
ofa natural disaster or an imminent man-made danger,
such as war. -This loanword from French dates from
World War I. Cf. displaced person under PERSON (1);
REFUGEE.
evaluative fact. See FACT.
Evarts Act (ev-Jrts). An 1891 federal statute that estab
lished the circuit courts ofappeals (now U.S. courts of
appeals) and fixed the contemporary method of federal
appellate review.
evasion. See TAX EVASION.
evasive, adj. (17c) Tending or seeking to evade; elusive;
shifting. _ Ifa pleading requiring a response is evasive,
635
the responding party may move for a more definite
statement. Fed. R. Civ. P. 12(e).
evasive answer. See ANSWER (2).
even date. The same date . This jargonistic phrase is
sometimes used in one instrument to refer to another
instrument with the same date, esp. when both relate to
the same transaction (as a deed and a mortgage).
evenings. Hist. The delivery at evening or night to a cus
tomary tenant of a gratuity in the form of a portion
of the grass, corn, or other crop that the tenant cuts,
mows, or reaps for the lord.
even lot. See round lot under LOT (3).
event-driven audit. See AUDIT.
evergreen contract. See CONTRACT.
evict, vb. (15c) 1. To expel (a person, esp. a tenant), from
real property, usu. by legal process. Also termed put
out. 2. Archaic. To recover (property or title) from a
person by legal process. -evictor, n.
eviction. (16c) The act or process oflegally dispossessing
a person ofland or rental property. See FORCIBLE ENTRY
AND DETAINER. Cf. EJECTMENT. [Cases: Forcible Entrv
and Detainer P6; Landlord and Tenant P287.] ,
actual eviction. (18c) A physical expulsion ofa person
from land or rental property. [Cases: Landlord and
Tenant (;::, 171(1).]
constructive eviction. (1826) 1. A landlord's act of
making premises unfit for occupancy, often with the
result that the tenant is compelled to leave. [Cases:
Landlord and Tenant 172.] 2. The inability of a
land purchaser to obtain possession because ofpara
mount outstanding title . Such an eviction usu. con
stitutes a breach of the covenants of warranty and
quiet enjoyment.
eviction by paramount title. An eviction by judicially
establishing title superior to that under which the
possessor claims. Also termed eviction by title
paramount. [Cases: Landlord and Tenant P 174.]
eviction by title paramount. See eviction by paramount
title.
partial eviction. An eviction, either constructive or
actual, from a portion ofa tenant's premises. [Cases:
Landlord and Tenant P 172(1), 190(2).]
retaliatory eviction. (1966) An eviction nearly
always illegal-commenced in response to a tenant's
complaints or involvement in activities with which
the landlord does not agree. [Cases: Landlord and
Tenant (::::>278,284(1),290(3),298(1).
summary eviction. (1907) An eviction accomplished
through a Simplified legal procedure, without the for
malities of a full trial. [Cases: Landlord and Tenant
P293.]
total eviction. (1832) An eviction that wholly deprives
the tenant of any right in the premises. [Cases:
Landlord and TenantPl72(l), 190(1).] evidence
evidence, n. (14c) 1. Something (including testimony,
documents and tangible objects) that tends to prove or
disprove the existence of an alleged fact <the bloody
glove is the key piece of evidence for the prosecution>.
[Cases: Criminal Law P661; Federal Civil Procedure
P2011; Trial 43.]2. Seefact in evidence under
FACT. 3. The collective mass of things, esp. testimony
and exhibits, presented before a tribunal in a given
dispute <the evidence will show that the defendant
breached the contract>. 4. The body oflaw regulat
ing the admiSSibility ofwhat is offered as proof into
the record of a legal proceeding <under the rules of
evidence, the witness's statement is inadmissible
hearsay that is not subject to any exception>. Also
termed (in sense 4) rules ofevidence. [Cases: Criminal
Law P661; Federal Civil Procedure C::=>2011; Trial
P43.] evidence, vb.
"Evidence is any matter of fact which is furnished to a legal
tribunal, otherwise than by reasoning or a reference to
what is noticed without proof, as the basis of inference in
ascertaining some other matter of fact." James B. Thayer,
Presumptions and the Law ofEvidence. 3 Harv. L. Rev. 141,
142 (1889).
"EVidence, broadly defined, is the means from which an
inference may logically be drawn as to the existence of
a fact; that which makes eVident or plain. Evidence is the
demonstration of a fact; it signifies that which demon
strates, makes clear, or ascertains the truth of the very
fact or point in issue, either on the one side or on the
other. In legal acceptation, the term 'evidence' includes all
the means by which any alleged matter of fact, the truth
of which is submitted to investigation, is established or
disproved. 'Evidence' has also been defined to mean any
species of proof legally presented at the trial of an issue,
by the act of the parties and through the medium of wit
nesses, records, documents, concrete objects, and the
like." 31A c.J.S. Evidence 3, at 67-68 (1996).
adminicular evidence. Rare. Corroborating or auxil
iary evidence presented for the purpose of explaining
or completing other evidence.
admissible evidence. (18c) Evidence that is relevant and
is of such a character (e.g., not unfairly prejudicial,
based on hearsay, or privileged) that the court should
receive it. -Also termed competent evidence; proper
evidence; legal evidence. [Cases: Criminal Law P
661; Federal Civil Procedure P20l1; Trial
autoptic evidence. See demonstrative evidence.
best evidence. (I7c) Evidence of the highest quality
available, as measured by the nature ofthe case rather
than the thing being offered as evidence. The term is
usu. applied to writings and recordings. If the original
is available, it must be offered rather than a copy or
oral rendition. Fed. R. Evid. 1002. Also termed
primary evidence; original evidence. See BEST-EVI
DENCE RULE. Cf. secondary evidence. [Cases: Criminal
Law C----=> 398-403; Evidence G--=> 157-187.]
"In some circumstances, 'best evidence' may mean that
evidence which is more specific and definite as opposed
to that which is merely general and indefinite or descrip
tive. However, 'best evidence' or 'primary evidence' is
variously defined as that particular means of proof which
is indicated by the nature of the fact under investigation
as the most natural and satisfactory, or as that kind of
proof which under any possible circumstances affords the
greatest certainty of the fact in question; or as evidence
which carries on its face no indication that better remains
behind." 32A c.J.S. Evidence 1054, at 417 (1996).
character evidence. (1949) Evidence regarding some
one's general personality traits or propensities, of a
praiseworthy or blameworthy nature; evidence of a
person's moral standing in a community. Fed. R. Evid.
404, 405, 608 . Character evidence is usu., but not
always, prohibited if offered to show that the person
acted in conformity with that character. Cf. reputa
tion evidence. [Cases: Criminal LawC=>375; Evidence
C=> 106; Witnesses C=>333-362.]
circumstantial evidence. (18c) 1. Evidence based on
inference and not on personal knowledge or obser
vation. -Also termed indirect evidence; oblique
evidence. Cf. direct evidence (1). [Cases: Criminal Law
C=>338(2), 552; Evidence C=>100,587.]2. All evidence
that is not given by eyewitness testimony.
"Indirect evidence (called by the civilians, oblique, and more
commonly known as circumstantial evidence) is that which
is applied to the principal fact, indirectly, or through the
medium of other facts, by establishing certain circum
stances or minor facts, already described as evidentiary,
from which the principal fact is extracted and gathered by
a process of special inference ...." Alexander M. Burrill, A
Treatise on the Nature, Principles and Rules ofCircumstan
tial Evidence 4 (1868).
"Some circumstantial evidence is very strong, as when you
find a trout in the milk." Henry David Thoreau, Journal, 11
Nov. 1850, in 2 Journal of Henry D. Thoreau 94 (Bradford
Torrey & Francis H. Allen eds., 1962).
"Evidence of some collateral fact, from which the existence
or non-existence of some fact in question may be inferred
as a probable consequence, is termed circumstantial
evidence." William P. Richardson, The Law of Evidence
111, at 68 (3d ed. 1928).
"Testimonial evidence readily defines itself by its name; it
is any assertion by a human being, offered to evidence the
truth of the matter asserted. Circumstantial evidence is any
and all other evidence. Scientifically the term 'circumstan
tial' is indefensible, for it does not correlate with 'testimo
nial'; a more correct equivalent would be 'nontestimonial.'
But no one has yet invented an acceptable substitute for
'circumstantial.''' John H. Wigmore, A Students' Textbook of
the Law of Evidence 38 (1935).
clear and convincing evidence. (17c) Evidence indicat
ing that the thing to be proved is highly probable or
reasonably certain . This is a greater burden than
preponderance ofthe evidence, the standard applied
in most civil trials, but less than evidence beyond a
reasonable doubt, the norm for criminal trials.
Also termed clear and convincing proof See REASON
ABLE DOUBT. Cf. PREPONDERANCE OF THE EVIDENCE.
[Cases: Evidence C=>596(1).]
communicative evidence. See testimonial evidence.
competent evidence. 1. See admissible evidence. 2. See
relevant evidence.
conclusive evidence. (17c) 1. Evidence so strong as to
overbear any other evidence to the contrary. -Also
termed conclusive proof [Cases: Criminal Law
549; Evidence C=>584(1).] 2. Evidence that so prepon
derates as to oblige a fact-finder to come to a certain
conclusion. concomitant evidence. (17c) Evidence that, at the time
ofthe act, the alleged doer of the act was present and
actually did it.
conjlicting evidence. (1803) Evidence that comes from
different sources and is often irreconcilable.
corroborating evidence. (17c) Evidence that differs
from but strengthens or confirms what other evidence
shows (esp. that which needs support). -Also termed
corroborative evidence. Cf. cumulative evidence.
credible evidence. (17c) Evidence that is worthy of
belief; trustworthy evidence.
critical evidence. (18c) Evidence strong enough that its
presence could tilt a juror's mind. Under the Due
Process Clause, an indigent criminal defendant is usu.
entitled to an expert opinion of the merits ofcritical
evidence. -Also termed crucial evidence.
crucial evidence. See critical evidence.
cumulative evidence. (18c) Additional evidence that
supports a fact established by the existing evidence
(esp. that which does not need further support). Cf.
corroborating evidence. [Cases: Criminal Law C=>675;
Federal Civil Procedure C=>2011; Trial C=>56.]
demeanor evidence. (1909) The behavior and appear
ance of a witness on the witness stand, to be con
sidered by the fact-finder on the issue of credibility.
[Cases: Criminal Law C=>553; Evidence C=>588.]
demonstrative evidence (di-mon-strJ-tiv). (17c)
Physical evidence that one can see and inspect (i.e.
an explanatory aid, such as a chart, map, and some
computer simulations) and that, while of probative
value and usu. offered to clarify testimony, does
not playa direct part in the incident in question .
This term sometimes overlaps with and is used as a
synonym of real evidence. -Also termed illustra
tive evidence; autoptic evidence; autoptic proference;
real evidence; tangible evidence. See nonverbal testi
mony under TESTIMONY. Cf. real evidence; testimonial
evidence. [Cases: Criminal Law C=>404.5-404.85;
Evidence C=> 188-198.]
''There remains a |
.5-404.85;
Evidence C=> 188-198.]
''There remains a source of proof, distinct from either
circumstantial or testimonial evidence, viz., what the
tribunal sees or hears by its own senses. Whether this
should be termed 'evidence' or not is a question of words,
open to difference of view. But it is universally conceded
to be an available source of proof. Bentham's term for it,
'real evidence,' came into wide vogue, but is ambiguous.
The term 'autoptic proference' (etymologically meaning
'showing to the tribunal's own vision') is preferable." John
H. Wigmore, A Students' Textbook of the Law of Evidence
39 (1935).
derivative evidence. (1961) Evidence that is discovered
as a result ofillegally obtained evidence and is there
fore inadmissible because of the primary taint. See
EXCLUSIONARY RULE; FRUIT-OF-THE-POISONOUS-TREE
DOCTRINE. [Cases: Criminal Law C=>394.1(3).]
direct evidence. (16c) 1. Evidence that is based on
personal knowledge or observation and that, if true,
proves a fact without inference or presumption.
Also termed positive evidence. Cf. circumstantial
evidence; negative evidence. [Cases: Criminal Law~
549; Evidence ~5S7.] 2. See original evidence (1).
"A little reflection shows that no disputed case will ordinar
ily be proved solely by circumstantial or solely by testimo
nial evidence. Ordinarily there is evidence of both kinds.
The matter has been obscured by the use of the term 'direct
evidence,' - a term sometimes used to mean testimonial
evidence in general, but sometimes also limited to apply
only to testimony directly asserting the fact-in-issue ....
The term 'direct' evidence has no utility." John H. Wigmore,
A Students' Textbook of the Law of Evidence 40 (1935).
documentary evidence. (1Sc) Evidence supplied by a
writing or other document, which must be authen
ticated before the evidence is admissible. [Cases:
Criminal Law ~429-446; Evidence ~325-3S3.]
downright evidence. See DOWNRIGHT EVIDENCE.
evidence aliunde. See extrinsic evidence (1).
evidence-in-chief (1Sc) Evidence used by a party in
making its case-in-chief. [Cases: Criminal Law ~
6S2; Federal Civil Procedure ~2015; Trial ~61.]
exclusive evidence. (1Sc) The only facts that have, or
are allowed by law to have, any probative force at all
on a particular matter in issue.
"[T]here is an important class of rules declaring certain
facts to be exclusive evidence, none other being admis
sible. The execution of a document which requires attesta
tion can be proved in no other way than by the testimony
of an attesting witness, unless owing to the death or some
other circumstance his testimony is unavailable. A written
contract can generally be proved in no other way than by
the production of the writing itself, whenever its produc
tion is possible." John Salmond, Jurisprudence 48S (Glan
ville L. Williams ed., 10th ed. 1947).
exculpatory evidence (ek-sk<ll-p'Hor-ee). (1Sc)
Evidence tending to establish a criminal defendant's
innocence. Fed. R. Crim. P. 16. The prosecution has
a duty to disclose exculpatory evidence in its posses
sion or control when the evidence may be material
to the outcome of the case. See BRADY MATERIAL.
[Cases: Criminal Law~359, 1992.]
expert evidence. (16c) Evidence about a scientific, tech
nical, professional, or other specialized issue given
by a person qualified to testify because offamiliarity
with the subject or special training in the field. -Also
termed expert testimony. Fed. R. Evid. 702-705. See
DAUBERT TEST. [Cases: Criminal Law ~469-494;
Evidence ~505-574.]
extrajudicial evidence. (1Sc) Evidence that does not
come directly under judicial cognizance but neverthe
less constitutes an intermediate link between judicial
evidence and the fact requiring proof. It includes
all facts that are known to the tribunal only by way
ofinference from some form ofjudicial evidence. See
JUDICIAL NOTICE. Cf. judicial evidence.
extrinsic evidence. (17c) 1. Evidence relating to
a contract but not appearing on the face of the
contract because it comes from other sources, such
as statements between the parties or the circum
stances surrounding the agreement. Extrinsic
evidence is usu. not admissible to contradict or add
to the terms of an unambiguous document. -Also termed extraneous evidence; parol evidence; evidence
aliunde. [Cases: Evidence ~3S4-469.] 2. Evidence
that is not legitimately before the court. Cf. intrinsic
evidence. 3. Evidence that is calculated to impeach a
witness's credibility, adduced by means other than
cross-examination of the witness . The means may
include evidence in documents and recordings and
the testimony of other witnesses. See Fed. R. Evid.
60S(b) & note.
"Under [Federal Rule of Evidence] 608(b), if the witness
denies engaging in untruthful misconduct, the cross
examiner must 'take the witness' answer,' meaning the
questioner may not introduce extrinsic evidence to contra
dict the witness' denial through other witness testimony
or the introduction of impeaching documents, or indeed
any other evidence than the cross-examination, even if the
questioner waits until it is his turn to put on evidence."
Paul F. Rothstein, The Federal Rules of Evidence 312 (3d
ed. 2003).
fabricated evidence. (1Sc) False or deceitful evidence
that is unlawfully created, usu. after the relevant
event, in an attempt to achieve or avoid liability or
conviction. -Also termedfabricated fact.
false evidence. Seefalse testimony under TESTIMONY.
forensic evidence. (1Sc) Evidence used in court; esp.,
evidence arrived at by scientific or technical means,
such as ballistic or medical evidence. [Cases: Evidence
~150.1
foundational evidence. (1946) Evidence that deter
mines the admissibility ofother evidence.
habit evidence. (1921) Evidence of one's regular
response to a repeated specific situation. Fed. R.
Evid. 406. [Cases: Criminal Law ~3S5; Evidence
~13S.]
hearsay evidence. See HEARSAY.
illegally obtained evidence. (1924) Evidence obtained
by violating a statute or a person's constitutional or
other right, esp. the Fourth Amendment guarantee
against unreasonable searches, the Fifth Amendment
right to remain silent, or the Sixth Amendment right
to counsel. [Cases: Criminal Law ~394.1-394.6;
Evidence ~154.]
illustrative evidence. See demonstrative evidence.
immaterial evidence. (1Sc) 1. Evidence lacking in pro
bative value. 2. Evidence offered to prove a matter
that is not in issue. [Cases: Criminal Law ~3S2;
Evidence ~143.]
impeachment evidence. (1S61) Evidence used to under
mine a witness's credibility. Fed. R. Evid. 607-610.
[Cases: Witnesses ~311-409.]
impertinent evidence. See irrelevant evidence.
incompetent evidence. (1Sc) Evidence that is for any
reason inadmissible. [Cases: Criminal Law ~3S5;
Evidence ~14S.]
incriminating evidence. (1S7S) Evidence tending to
establish guilt or from which a fact-trier can infer
guilt.
inculpatory evidence (in-kal-pa-tor-ee). (1849)
Evidence showing or tending to show one's involve
ment in a crime or wrong.
indirect evidence. See circumstantial evidence (1).
indispensable evidence. (18c) Evidence without which
a particular fact cannot be proved.
insufficient evidence. (17c) Evidence that is inadequate
to prove or support a finding of something . This
term usu. describes a case that is not strong enough
to even get to the fact-finder. [Cases: Evidence C=>
584-601.]
intrinsic evidence. (17c) 1. Evidence brought out by
the examination ofthe witness testifying. 2. Evidence
existing within a writing. Cf. extrinsic evidence (2).
irrelevant evidence. Evidence not tending to prove or
disprove a matter in issue. Fed. R. Evid. 401-403.
Also termed impertinent evidence. See IRRELEVANT.
[Cases: Criminal Law C=>338; Evidence C=>99.]
judicial evidence. (17c) Evidence produced in court,
consisting of all facts brought to the attention of or
admitted into evidence before the tribunal. Cf. extra
judicial evidence.
legal evidence. (17c) 1. See admissible evidence. 2. All
admissible evidence, both oral and documentary, of
such a character that it reasonably and substantially
proves the point rather than merely raising suspicion
or conjecture.
material evidence. (17c) Evidence having some logical
connection with the facts ofconsequence or the issues.
Cf. relevant evidence; immaterial evidence. [Cases:
Criminal Law C=>382; Evidence C=> 143.]
mathematical evidence. (18c) 1. Loosely, evidence that
establishes its conclusions with absolute certainty. 2.
Evidence pertaining to mathematical or statistical
matters, or probabilities.
mediate evidence. See secondary evidence.
medical evidence. (18c) Evidence furnished by a doctor,
nurse, or other qualified medical person testifying in
a professional capacity as an expert, or by a standard
treatise on medicine or surgery. [Cases: Criminal Law
C=>473, 476; Evidence C=>555.l0.]
moral evidence. (17c) Loosely, evidence that depends
on a belief, rather than complete and absolute proof.
Generally, moral evidence is testimonial.
multiple evidence. (1926) Evidence with probative or
other value on more than one issue but usu. admitted
into evidence for one specific purpose . Impeach
ment evidence, for example, may not be probative on
a particular issue but may nonetheless affect the jury's
perceptions ofseveral issues.
negative evidence. (17c) Evidence suggesting that an
alleged fact does not exist, such as a witness's tes
tifying that he or she did not see an event occur .
Negative evidence is generally regarded as weaker
than positive evidence because a positive assertion
that a witness saw an event is a stronger statement than an assertion that a witness did not see it. But
a negative assertion will sometimes be considered
positive evidence, depending on the witness's oppor
tunity to see the event. For instance, testimony that
the witness watched the entire game and saw no riot
in the stands is stronger than testimony stating only
that the witness did not see a riot. -Also termed
negative testimony. Cf. direct evidence (1). [Cases:
Criminal Law C=>387; Evidence C=> 147,586.]
newly discovered evidence. (18c) Evidence existing at
the time of a motion or trial but then unknown to a
party, who, upon later discovering it, may assert it as
grounds for reconsideration or a new trial. See Fed. R.
Civ. P. 60(b). [Cases: Criminal Law C=>938; Federal
Civil Procedure C=>928, 2350, 2655; New Trial C=>
99.]
no evidence. See NO EVIDENCE.
oblique evidence. See circumstantial evidence (1).
opinion evidence. (1955) A witness's belief, thought,
inference, or conclusion concerning a fact or facts.
Fed. R. Evid. 701-705. See OPINION (3); OPINION
RULE. [Cases: Criminal Law C=>448; Evidence
470-574.]
"In a sense all testimony to matter of fact is opinion
evidence; i.e. it is a conclusion formed from phenomena
and mental impressions.' James B. Thayer, A Preliminary
Treatise on Evidence at the Common Law 524 (1898).
oral evidence. See testimonial evidence.
original evidence. (18c) 1. A witness's statement that
he or she perceived a fact in issue by one of the five
senses, or that the witness was in a particular physical
or mental state. -Also termed direct evidence. Cf.
HEARSAY. 2. See best evidence.
parol evidence (p;:J-rohl or par-;:Jl). (18c) 1. Evidence
of oral statements. [Cases: Criminal Law C=>447;
Evidence C=>384-469.] 2. See extrinsic evidence (1).
See PAROL-EVIDENCE RULE.
partial evidence. (17c) Evidence that establishes one
ofa series offacts.
personal evidence. See TESTIMONY.
positive evidence. See direct evidence (1).
preappointed evidence. (1850) Evidence prescribed in
advance (as by statute) for the proof ofcertain facts.
preliminary evidence. (18c) Evidence that is necessary
to begin a hearing or trial and that may be received
conditionally in anticipation ofother evidence linking
it to issues in the case. Fed. R. Evid. 104. [Cases:
Evidence C=> 117; Federal Civil Procedure C=>2014.]
presumptive evidence. (17c) 1. Evidence deemed suf
ficient to establish another fact unless discredited
by other evidence. [Cases: Evidence C=>53-89.] 2.
Archaic. Circumstantial evidence as distinct from
testimonial evidence. -Also termed probable
evidence.
prima facie evidence (pn-m;:J fay-sh;:J). (18c) Evidence
that will establish a fact or |
ie evidence (pn-m;:J fay-sh;:J). (18c) Evidence
that will establish a fact or sustain a judgment unless
639 evidence
contradictory evidence is produced. [Cases: Evidence
(>584(1).]
-The legislative branch may create an evidential presump
tion, or a rule of 'prima facie' evidence, i.e., a rule which
does not shut out evidence, but merely declares that
certain conduct shall suffice as evidence until the opponent
produces contrary evidence." John H. Wigmore, A Students'
Textbook of the Law of Evidence 237 (1935).
primary evidence. See best evidence.
privileged evidence. (1897) Evidence that is exempt
from production to an opposing party or tribunal
(with certain, limited exceptions) because it is covered
by one or more statutory or common-law protections,
such as the attorney-client privilege. See privileged
communication under COMMUNICATION. [Cases:
Privileged Communications and Confidentiality
1,2,100.]
probable evidence. See presumptive evidence.
probative evidence (proh-b;Hiv). (1877) Evidence that
tends to prove or disprove a point in issue. Cf. relevant
evidence. [Cases: Criminal Law (>338; Evidence (>
99.]
proffered evidence (prof-ard). (1904) 1. Evidence that
is offered to the court to obtain a ruling on its admis
sibility. 2. Evidence whose admissibility depends on
the existence or nonexistence of a preliminary fact.
[Cases: Evidence (::::, 117; Federal Civil Procedure C=J
2011.]
proper evidence. See admissible evidence.
prospectant evidence (pra-spek-tant). (1924) Evidence
that, before someone does an act, suggests that the
person might or might not do the act. This evidence
typically falls into any of five categories: (1) moral
character or disposition, (2) physical and mental
capacity, (3) habit or custom, (4) emotion or motive,
and (5) plan, design, or intention.
Queen's evidence. English law. Testimony provided
by one criminal defendant, usu. under a promise of
pardon, against another criminal defendant. -Also
termed (when a king reigns) King's evidence. See
state's evidence.
real evidence. (17c) 1. Physical evidence (such as
clothing or a knife wound) that itself plays a direct
part in the incident in question. Also termed
physical evidence. [Cases: Criminal Law (>405;
Evidence C=:: 188.] 2. See demonstrative evidence.
"Anything which is believed for any other reason than that
someone has said so, is believed on real evidence." John
Salmond, jurisprudence 480 (Glanville L. Williams ed., 10th
ed. 1947).
rebuttal evidence. (1859) Evidence offered to disprove
or contradict the evidence presented by an opposing
party. Rebuttal evidence is introduced in the rebut
ting party's answering case; it is not adduced, e.g.,
through cross-examination during the case-in-chief
of the party to be rebutted. Also termed rebutting
evidence. [Cases: Criminal Law (>683; Federal Civil
Procedure C=~)2015; Trial relevant evidence. (18c) Evidence tending to prove
or disprove a matter in issue. Relevant evidence
is both probative and material and is admissible
unless excluded by a spedfic statute or rule. Fed. R.
Evid. 401-403. -Also termed competent evidence.
Cf. material evidence; probative evidence. [Cases:
Criminal Law C~338; Evidence
reputation evidence. (1888) Evidence of what one is
thought by others to be . Reputation evidence may
be introduced as proof of character when character
is in issue or is used circumstantially. Fed. R. Evid.
405(a). -Also termed reputalional evidence. Cf.
character evidence. [Cases: Criminal Law C::;:)375;
Evidence C;;) 106; Witnesses
retrospectant evidence (re-tra-spek-t<Jnt). (1929)
Evidence that, although it occurs after an act has been
done, suggests that the alleged doer ofthe act actually
did it <when goods have been stolen, and the thief
is sought, a person's later possession of those goods
amounts to retrospectant evidence that this person
took them >. -Also termed traces.
satisfactory evidence. (l7c) Evidence that is sufficient
to satisfy an unprejudiced mind seeking the truth.
Also termed sufficient evidence; satisfactory proof
[Cases: Evidence (::::'584(1).]
scientific evidence. (17c) Fact or opinion evidence
that purports to draw on specialized knowledge of
a science or to rely on scientific principles for its evi
dentiary value. See DAUBERT TEST. [Cases: Criminal
Law (::::>388; Evidence C=:: 150,505-574.]
secondary evidence. (17c) Evidence that is inferior
to the primary or best evidence and that becomes
admissible when the primary or best evidence is lost
or inaccessible . Examples include a copy of a lost
instrument or testimony regarding a lost instrument's
contents. -Also termed mediate evidence; mediate
testimony; substitutionary evidence. See Fed. R. Evid.
1004. Cf. best evidence. [Cases: Criminal Law ~~398,
403; Evidence
secondhand evidence. See HEARSAY.
secret evidence. (1983) Classified information that
may be used against a defendant in an immigration
proceeding but withheld from the defendant, the
defendant's lawyer, and the public on national-secu
rity grounds . The use of secret evidence was made
easier under the Anti-Terrorism and Effective Death
Penalty Act of 1996. [Cases: Aliens, Immigration, and
Citizenship
signature evidence. Highly distinctive evidence of
a person's prior bad acts . While ordinarily inad
missible, signature evidence will be admitted if it
shows, for example, that two crimes were committed
through the same planning, design, scheme, or modus
operandi, and in such a way that the prior act and the
current act are uniquely identifiable as those of the
defendant. See Fed. R. Evid. 404(b). [Cases: Criminal
Law (>369.15; Evidence (>129(5), 133.]
640 evidence by inspection
slight evidence. (ISc) A small quantity ofevidence; esp.,
the small amount of evidence sufficient to remove a
presumption from a case or for a rational fact-finder
to conclude that something essential has not been
established beyond a reasonable doubt. See SLIGHT
EVIDENCE RULE.
state's evidence. (1SS6) Testimony provided by one
criminal defendant -under a promise ofimmunity
or reduced sentence -against another criminal
defendant. See TURN STATE'S EVIDENCE.
substantial evidence. (17c) 1. Evidence that a rea
sonable mind could accept as adequate to support
a conclusion; evidence beyond a scintilla. See SUB
STANTIAL-EVIDENCE RULE. [Cases: Administrative
Law and Procedure ~791; Evidence ~597.] 2.
The product of adequately controlled investigations,
including clinical studies, carried out by qualified
experts that establish the effectiveness ofa drug under
FSA regulations. 21 USCA 355(e).
substantive evidence (s;}b-st;}n-tiv). Evidence offered to
help establish a fact in issue, as opposed to evidence
directed to impeach or to support a witness's credibil
ity.[Cases: Criminal Law~337; Evidence ~266.]
substitutionary evidence. See secondary evidence.
sufficient evidence. See satisfactory evidence.
tainted evidence. (IS76) Evidence that is inadmissi
ble because it was directly or indirectly obtained by
illegal means. See FRUIT-OF-THE-POISONOUS-TREE
DOCTRINE. [Cases: Criminal Law ~394; Evidence
~154.]
tangible evidence. Physical evidence that is either real
or demonstrative. See demonstrative evidence; real
evidence.
testimonial evidence. (1S31) A person's testimony
offered to prove the truth ofthe matter asserted; esp.,
evidence elicited from a witness. -Also termed com
municative evidence; oral evidence. Cf. demonstrative
evidence. [Cases: Trial ~43.]
"An assertion is testimonial evidence whether made out of
court or in court, if it is offered with a view to persuading
the tribunal of the matter asserted." John H. Wigmore, A
Students' Textbook of the Law of Evidence 120 (1935).
traditionary evidence. (1Sc) Evidence derived from a
deceased person's former statements or reputation.
Traditionary evidence is admissible to prove ancestry,
ancient boundaries, or similar facts, usu. when no
living witnesses are available to testify. [Cases: Bound
aries ~35(2); Evidence ~274, 302.]
unwritten evidence. (ISc) Evidence given orally, in
court or by deposition.
evidence by inspection. See demonstrative evidence
under EVIDENCE.
evidence code. A relatively comprehensive set of statu
tory provisions or rules governing the admissibility of
evidence at hearings and trials.
evidence ofdebt. See SECURITY (4).
evidence of indebtedness. See SECURITY (4). evidence ofinsurability. Information -such as medical
records or a medical examination -that an insurer
may require to establish a potential insured's qualifi
cation for a particular insurance policy. [Cases: Insur
ance ~2052.]
evidence of title. (17c) The means by which the own
ership of land is satisfactorily demonstrated within a
given jurisdiction. See DEED (2), (3). [Cases: Property
~9.]
"There are four kinds of evidence of title: abstract and
opinion, certificate oftitle, title insurance and Torrens cer
tificate. The certificate of title is used extenSively in the
Eastern states, and some Southern states. In urban centers
in a great many sections of the country, title insurance
occupies a dominant position in real estate transactions.
In farm areas the abstract and opinion method is common.
To a great extent, the acceptability of a particular kind
of evidence of title depends on the local custom." Robert
Kratovil, Real Estate Law 170 (6th ed. 1974).
evidence rules. See EVIDENCE (4).
evidencing feature. Evidence. A group ofcircumstances
that, when taken as a whole, form a composite feature
that can be reliably associated with a single object .
This term appears more frequently in criminal cases
than in civil. In criminal cases, it usu. refers to evidence
that establishes a perpetrator's identity, but in civil
cases it often refers to evidence that an event did or
did not occur. -Also termed evidencing mark; evi
dential mark.
evidencing mark. See EVIDENCING FEATURE.
evidentia (ev-i-den-shee-;}), n. [Law Latin] Evidence.
evidential, adj. Of, relating to, relying on, or constituting
evidence; EVIDENTIARY (1).
evidential fact. See evidentiary fact (2) under FACT.
evidential mark. See EVIDENCING FEATURE.
evidentiary (ev-i-den-sh;}-ree), adj. (1SlO) 1. Having the
quality ofevidence; constituting evidence; evidencing.
2. Pertaining to the rules of evidence or the evidence
in a particular case.
evidentiary fact. See FACT.
evidentiary hearing. See HEARING.
evince, vb. (17c) To show, indicate, or reveal <in abstain
ing from the vote, Hariden evinced misgivings about
the nomination>.
evocation (ev-<"l-kay-sh:m). French law. The act of with
drawing a case from an inferior court and bringing it
before a superior court.
evocative trademark. See suggestive trademark under
TRADEMARK.
evolution statute. See ANTI-EVOLUTION STATUTE.
ewage (yoo-ij), n. [Law French] Hist. A toll paid for water
passage.
ex. (ISc) 1. Former <ex-wife>. 2. Without <ex rights>. 3.
From <ex cathedra>. 4. (usu. cap.) abbr. Exhibit <Ex.
4>. 5. abbr. Example <this is but one ex. ofseveral that
might be cited>. 6. (cap.) abbr. EXCHEQUER.
641
ex abundanti (eks ab-an-dan-tI). [Latin "out of abun
dance"] Archaic. Abundantly; superfluously.
ex abundanti cautela (eks ab-an-dan-tJ kaw-tee-la).
[Latin] Archaic. Out ofabundant caution; to be on the
safe side.
exacta diligentia. See DILIGENTIA.
exaction, n. (15c) 1. The act ofdemanding more money
than is due; extortion. 2. A fee, reward, or other com
pensation arbitrarily or wrongfully demanded. [Cases:
Extortion and Threats (;:=-7,25.1.] -exact, vb.
exactor. 1. Civil law. A tax collector; a gatherer or receiver
ofmoney. 2. Hist. A collector ofpublic funds; a tax col
lector.
ex adverso (eks ad-var-soh). [Latin] On the other side .
This term is sometimes applied to opposing counsel.
ex aequitate (eks ee-kwa-tay-tee). [Latin] According to
equity; in equity.
ex aequo et bono (eks ee-kwoh et boh-noh). [Latin]
According to what is equitable and good . A decision
maker (esp. in international law) who is authorized to
decide ex aequo et bono is not bound by |
. A decision
maker (esp. in international law) who is authorized to
decide ex aequo et bono is not bound by legal rules and
may instead follow equitable principles. For example.
article 38(2) of the Statute of the International Court
of Justice provides that the Court may decide a case
ex aequo et bono if the parties agree thereto." 37 ILM
999. [Cases: Equity~54.]
ex-all. Without all rights and privileges . Securities sold
ex-all reserve all rights and privileges, such as pending
dividends, to the seller.
ex altera parte (eks al-tar-a [or awl-J pahr-tee). [Latin]
Of the other part.
examen (eg-zay-m;m), n. [Law Latin] A trial; investiga
tion.
examen computi (eg-zay-man bm-pyoo-tI). [Latin] The
balance of an account.
examination. (14c) 1.1he questioning of a witness under
oath. See DIRECT EXAMINATION; CROSS-EXAMINATION.
[Cases: Witnesses (>-:>224-228.] 2. Bankruptcy. The
questioning ofa debtor, esp. at the first meeting ofcred
itors, concerning such matters as the bankrupt's debts
and assets. [Cases: BankruptcyC=>3040.]3. An inquiry
made at the U.S. Patent and Trademark Office, upon
application for a patent, into the alleged invention's
novelty and utility, and whether it interferes with any
other pending application or in-force patent. [Cases:
Patents 104.] 4. Banking. The government's fact
finding mechanism for determining the soundness of
a bank's finances and management. [Cases: Banks and
Banking 17,235.] 5. Insurance. A periodic investi
gation by a state insurance commission into the affairs
and soundness of an insurance company licensed in
that state. [Cases: Insurance 1048.]
preliminary examination. Patents. A patent office's
initial review of an application, usu. to see whether
the specification is properly set out and to prepare a
search report. Patents C-~104.] examining board
4. PRELIMINARY HEARING. 5. A test, such as a bar exam
ination.
examination before trial. See DEPOSITION (1).
examination-in-chief. See DIRECT EXAMINATION.
examination on the voir dire. See VOIR DIRE.
examination pro interesse suo (proh in-t<'Jr-es-ee sly]
oo-oh). [l.atin "according to his interest"] A judicial
inquiry into the merits of a person's claim to seques
tered property. [Cases: Sequestration
"In practice. an examination pro interesse suo is an inquiry
described as follows: When any person claims to be entitled
to an estate or other property sequestered, whether by
mortgage or judgment, lease or otherwise, or has a title
paramount to the sequestration, he should apply to the
court to direct an inquiry whether the applicant has any
and what interest in the property sequestered." 79A c.J,S.
Sequestration 31. at 589 (1995).
examination system. Patents. A patent system in which
an invention is subjected to official scrutiny to deter
mine whether it qualifies for patent protection. Cf. REG
ISTRATION SYSTEM.
examined copy. See COpy,
examiner. (16c) 1. One authorized to conduct an exami
nation; esp,. a person appointed by the court, esp. a
court of equity, to administer an oath and take testi
mony. -Also formerly termed examiner ill chancery.
See MASTER (2). 2. A patent officer responsible for deter
mining the patentability ofan invention submitted to
the patent office. [Cases: Patents 104.] 3. MEDICAL
EXAMlNER. 4. BANK EXAMINER.
examiner in chancery. See EXAMINER (1).
examiner-in-chief. Hist. Patents. 1. A member of the
quasi-judicial body in the U.S. Patent and Trademark
Office that formerly heard appeals ofinterference deci
sions and patent-application rejections. 2. (pl. cap.) The
body comprising those members; the predecessor ofthe
Board of Appeals, the Board of Patent Interferences,
and the present-day Board of Patent Appeals and Inter
ferences.
examiner's amendment. Patents & Trademarks. Minor
changes in the form ofa patent or trademark applica
tion, made by the examiner rather than the applicant
For example, the examiner may correct spelling and
grammar rather than wait for the applicant to respond.
A patent examiner may also amend or cancel claims if
authorized by the applicant. [Cases: Patents C= 104;
Trademarks (>~1287.]
examiner's answer. Patents. The brief filed by a patent
examiner with the Board of Patent Appeals and Inter
ferences to rebut the arguments in an appeal brief and
to defend the examiner's decision to reject the applica
tion. Cf appeal briefunder BRIEF. [Cases: Patents
l11.J
examining authority. See AUTHORITY (3).
examining board. (1851) An appointed group ofpublic
officials responsible for conducting the tests required
by those applying for occupational and profeSSional
642 examining court
licenses. Also termed board ofexaminers. [Cases:
Licenses
examining court. See COURT.
examining group. Patents. A subunit ofthe Patent Office
consisting ofpatent examiners who specialize in a par
ticular area oftechnology. [Cases: Patents (::::::0 104.]
examining trial. See PRELIMINARY HEARING.
example. Patents. A detailed description of an inven
tion's embodiment. Alternatives without detail may
be referred to as by example. Also termed specific
example; working example. [Cases: Patents (::::::099.]
exannual roll (eks-an-yoo-al). Rist. In England, a roll
into which illeviable fines and desperate debts were
transcribed and that was annually read to the sheriff
upon his accounting to see what might be gotten.
ex ante (eks an-tee), adj. & adv. [Latin "from before"]
(1937) Based on assumption and prediction, on how
things appeared betorehand, rather than in hindSight;
subjective; prospective <from an ex ante perspective>.
Cf. EX POST.
ex arbitrio judicis (eks ahr-bi-tree-oh joo-di-sis).
[Latin] Civil law. At, from, or upon the discretion of
the judge.
ex assensu curiae (eks a-sen-s[y]oo kyoor-ee-ee or -I).
[Latin] By or with the consent of the court.
ex assensu patris (eks a-sen-sly]oo pay-tris). [Latin "by
or with the consent of the father"] Rist. A species of
dower ad ostium ecclesiae, under which a husband, by
his father's express consent, would endow his wife with
a parcel ofthe father's lands . This type ofdower was
abolished in England by the Dower Act (1833). St. 3 &
4 Will. 4, ch. 105, 13.
ex assensu suo (eks a-sen-s[y]oo s[y]oo-oh). [Latin "with
his assent"] Formal words in a default judgment for
damages.
ex auditu (eks aw-di-t[y]oo). [Latin] Rist. By hearsay;
by report.
ex bonis (eks boh-nis). [Latin] Civil law. Ofor relating to
goods or property.
ex bonis maternis (eks boh-nis ma-tdf-nis). [Latin] Rist.
Out of the goods succeeded to through the mother.
ex bonis paternis (eks boh-nis pa-tar-nis). [Latin] Rist.
Out of the goods succeeded to through the father.
excambiator (eks-kam-bee-ay-tar), n. [Latin] Rist. An
exchanger of lands; a broker.
excambion (eks-kam-bee-ahn), n. Scots law. 1. The
exchange of one piece of property for another, esp. an
exchange ofheritable estates. 2. EXCAMBIUM (1).
excambium (eks-kam-bee-am), n. [Latin] 1. An
exchange; a place where merchants meet to transact
their business. -Also termed (in Scots law) excam
bion. 2. An equivalent in recompense; a recompense in
lieu ofdower ad ostium ecclesiae.
ex capite (eks kap-i-tee). [Latin] On the ground of; by
reason of. See LIEGE POUSTIE. ex capite doli (eks kap-i-tee doh-h). [Law Latin] Rist.
On the ground ofdole; for the reason offraud. Also
termed ex capite fraudis.
ex capite inhibitionis (eks kap-i-tee in-hi-bish-ee-oh
nis). [Law Latin] Scots law. On the ground ofinhibition.
See INHIBITION (4).
ex capite interdictionis (eks kap-i-tee in-tar-dik-shee
oh-nis). [Law Latin] Rist. On the ground of interdic
tion. See INTERDICTION.
ex capite lecti (eks kap-i-tee lek-tI). [Law Latin] Scots
law. On the ground ofdeathbed . Under some cir
cumstances, a legal heir could overturn a deed that a
grantor made to the heir's detriment if the deed were
made within 60 days before the grantor's death.
ex capite metus (eks kap-i-tee ruee-tas). [Law Latin] Scots
law. On the ground of fear. A transaction could be
rescinded if it were induced by serious threats.
ex capite minorennitatis et laesionis (eks kap-i-tee min
or-en-i-tay-tis et lee-z[h]ee-oh-nis). [Law Latin] Scots
law. On the ground ofminority and lesion . The phrase
appeared in reference to a ground upon which a minor
could be restored against deeds granted by him during
his minority. The phrase also referred to a basis upon
which a minor could set aside a deed (on the ground of
lesion) if the deed were substantially onerous.
ex cathedra (eks ka-thee-dra or kath-a-dra), adv. &adj.
[Latin "from the chair"] (l7c) By virtue ofone's high
office or position; with authority <ex cathedra pro
nouncements>.
ex causa (eks kaw-za). [Latin] By title.
ex causa lucrativa (eks kaw-za loo-kr .. -tI-va). [Latin]
Rist. From a lucrative source; gratUitously.
ex causa mandati (eks kaW-Zd man-day-tr). [Latin]
Scots law. On account ofthe mandate; because ofthe
mandate.
"A mandatory is entitled to claim from the mandant
reimbursement of all moneys disbursed, as well as relief
from all obligations incurred, ex causa manclati i.e., on
account of the matter which the mandate authorised to be
done or performed."John Trayner, Trayner's Latin Maxims
195 (4th ed. 1894).
ex causa potestatis (eks kaw-za poh-tes-tay-tis). Roman
law. Because of his position of authority . Certain
men could not marry women who were subject to their
guardianship or control, and the reason was said to be
ex causa potestatis.
"Certain impediments to marriage in the civil law were
described as being ex causa potestatis. Th us a tutor or
curator could not marry his female ward until his office
had terminated, or unless his accounts had been passed.
A person administering a government or public office in a
province, and the members of his family, were not permit
ted to intermarry with a person domiciled in his province,
unless they had been betrothed to each other before he
had accepted the office." Alexander Wood Renton & George
Grenville Phillimore, The Comparative Law ofMarriage and
Divorce 6 (1910).
excellency. (usu. cap.) (16c) A title of honor given to
certain high officials or dignitaries, such as gover
643 exceptio
nors, ambassadors, and Roman Catholic bishops or
archbishops.
Excelsior list. Labor law. A roster of the names and
addresses of employees who are eligible to vote in a
union election. _ The NLRB requires an employer to
file the list within seven days after the employer and a
union reach a consent-election agreement. Excelsior
Underwear, Inc., 156 N.L.R.B. 1236 (1966). [Cases:
Labor and Employment 1191.]
exceptio (ek-sep-shee-oh), n. [Latin] Hist. 1. An excep
tion, plea, or objection. 2. Roman & civil law. A defen
dant's plea admitting the claim in principle but alleging
facts or legal provisions that negate it in this instance.
3. A defense to a claim that is justly brought but that
unjustly accuses the particular defendant named. PI.
exceptiones (ek-sep-shee-oh-neez).
exceptio dilatoria (dil-d-tor-ee-d). A dilatory excep
tion; an exception that defeated the action for a time
and created a delay, such as an agreement not to sue
within a certain time.
exceptio doli mali (doh-ll mal-I). An exception,
defense, or plea of fraud. Sometimes shortened to
exceptio doli.
exceptio dominii (dd-min-ee- I). A claim of ownership
by the defendant in an action to recover property.
exceptio dotis cautae non tlumeratae (doh-tis kaw-tee
non n[y]oo-md-ray-te |
autae non tlumeratae (doh-tis kaw-tee
non n[y]oo-md-ray-tee). A defense to an action for
the restitution of dowry, asserting that, although
promised, dowry was never paid.
exceptio in factum (in fak-t ..m). An exception on the
facts; an exception or plea founded on the peculiar
circumstances of a case.
exceptio in personam (in p ..r-soh-nJm). A plea or
defense of a personal nature that only the person to
whom it is granted by law may assert.
exceptio in rem (in rem). A plea or defense that is not
of a personal nature but is connected with the legal
circumstances on which the suit is founded, and that
may therefore be alleged by any party in interest, such
as an heir or surety ofthe proper or original debtor.
exceptio jurisjurandi (joor-is-juu-ran-dr). An excep
tion of oath; an exception or plea that the matter had
been sworn to. -This kind of exception was allowed
if a debtor, at a creditor's instance, had sworn that
nothing was due the creditor, but the creditor sued
anyway.
exceptio metus (met-ds). An exception, defense, or
of fear or compulsion.
exceptio non adimpleti contractus (non ad-im-plee
tI k ..n-trak-tds). An exception in a contract action
involving mutual duties or obligations, to the effect
that the plaintiff may not sue if the plaintiff's own
obligations have not been performed.
exceptio non numeratae pecuniae (ek-sep-shee-oh non
n[y]oo-m ..-ray-tee pi-kyoo-nee-ee). [Latinl Roman
law. An exception or defense that money was not
paid. 'This was one of the Roman law exceptions, founded on the
obligatio literarum of the Romans, The obligatio literarum
was constituted by a writing, the granter of which acknowl
edged receipt from the creditor of a certain sum of money.
But as the obligation was sometimes granted before the
money was advanced, spe numerandae pecuniae, by the
Roman law, the obligation, until the lapse of two years
after its date and delivery, did not prove the receipt of the
money; and the debtor against whom, within that time, a
demand for repayment was made, might plead the exceptio
non numeratae pecuniae; that is, that the money of which
repayment was demanded, was truly never advanced. The
exception was sufficient to elide the demand, unless the
creditor proved that he had advanced the money," William
Bell, Bell's Dictionary and Digest of the Law ofScotland 426
(George Watson ed., 7th ed, 1890).
exceptio non solutae pecuniae (non sJ-Ioo-tee pi
kyoo-nee-ee). A plea that the debt at issue in the suit
had not been discharged by payment (as the adverse
party alleged), notwithstanding the existence of a
receipt or acquittance reflecting payment. Cf. excep
tion pecuniae non numeratae.
exceptio pacti conventi (pak-tI-kdn-ven-tI). An excep
tion of compact; a defense or plea that the plaintiff had
agreed not to sue.
exceptio pecuniae non numeratae (pi-kyoo-nee-ee
non n[y]oo-md-ray-tee). An exception or plea of
money not paid; a defense by a party who was sued
on a promise to repay money that was never received
from the plaintiff. Cf. exceptio non solutae pecuniae;
PECUNIA NON NUMERATA.
exceptio peremptoria (pdr-emp-tor-ee-J). A peremp
tory exception that forever destroyed the subject
matter or ground of the action, such as the exceptio
doli mali and the exceptio metu5. -Also termed
exceptio perpetua.
exceptio plurium concubentium (ploof-ee-Jm kon
kyoo-ben-shee-Jm). Rare. The plea or defense in a
paternity action that the plaintiff had several lovers
around the time of conception.
exceptio rei judicatae (ree-I joo-dd-kay-tee). An
exception or plea of matter adjudged; a plea that the
subject matter of the action had been determined in
a previous action.
exceptio rei venditae et traditae (ree-I ven-d~-tee
et trad-d-tee). An exception or plea of the sale and
delivery [of a thing]. _ This exception presumes a
valid sale but, because no one can transfer a right
greater than what is possessed, no valid transfer of
property occurred, yet the real owner is nonetheless
estopped from contesting the sale.
exceptio senatusconsulti Macedoniani (sd-nay-t;)s
k;m-s;)l-tI mas-d-doh-nee-ay-nr). A defense to an
action for the recovery of money loaned, on the
ground that the loan was made to a person who was
under another person's paternal power . This defense
is so named from the decree of the senate that forbade
the recovery of such loans.
exceptio senatusconsulti Velleiani (sd-nay-tds-bn
S;)I-tl vel-ee-ay-nr). A defense to an action on a
contract of suretyship, on the ground that the surety
644 exception
was a woman and thus incapable ofbecoming bound
for another. This defense is so named from the
decree of the senate forbidding such sureties.
exceptio temporis (tem-p;:>-ris). An exception or plea
that the time prescribed by law for bringing a particu
lar action has expired.
exception, n. (14c) L A formal objection to a court's
ruling by a party who wants to preserve an overruled
objection or rejected proffer for appeal <the prosecu
tor stated her exception to the court's ruling disallow
ing the witness's testimony> . To make an exception
or objection, attorneys sometimes say, "I except" or "I
object." Exception properly refers only to an objection
made after an initial objection or proffer is made and
overruled. In most courts, an exception is no longer
required to preserve the initial objection. [Cases:
Appeal and Error C=248-280; 1048-1060; Pleading
C=228-228.23.]
The following quotation reflects former practice: "The
exception must be distinguished from the objection. Many
counsel are heard carelessly saying 'I except' when the
thing they are dOing is 'I object.' The exception serves an
entirely distinct purpose from the objection, ~a double
purpose, in fact. It warns the judge and the other party that
the excepter is not satisfied with the ruling and takes issue
with a view to appeal; and it sums up and preserves the
precise terms of the ruling. The proponent of the evidence
is the excepter if the ruling excludes the evidence; but if
it admits the evidence, the opponent of the evidence is
the excepter. Thus the excepter and the objector are not
necessarily the same parties." John H. Wigmore, A Students'
Textbook ofthe Law of Evidence 421 (1935).
declinatory exception (di-khn-d-tor-ee). Louisiana law.
An exception to a court's jurisdiction. -Grounds for
refuSing to submit to a court's jurisdiction include
lack of personal jurisdiction and insufficient service
of process. [Cases: Pleading
dilatory exception (dil-d-tor-ee). (1822) Louisiana law.
An exception intended to delay but not dismiss an
action. [Cases: Pleading C=>228.6, 228.7.]
general exception. (16c) 1. An objection pointing
out a substantive defect in an opponent's pleading,
such as the insufficiency of the claim or the court's
lack of subject-matter jurisdiction; an objection to
a pleading for want of substance. -Also termed
general demurrer. Cf. SPECIAL EXCEPTION (1). [Cases:
Pleading C=>228.13.] 2. An objection in which the
excepting party does not specify the grounds of the
objection.
peremptory exception. (16c) Louisiana law. A defensive
pleading asserting that no legal remedy exists for the
plaintiffs alleged injury, that res judicata or prescrip
tion bars the claim, or that an indispensable party has
not been included in the litigation. [Cases: Pleading
C=>228.8.]
special exception. See SPECIAL EXCEPTION.
2. Something that is excluded from a rule's operation
<employers with fewer than five employees are an
exception to the rule>. statutory exception. (18c) A provision in a statute
exempting certain persons or conduct from the stat
ute's operation. [Cases: Statutes
3. The retention of an existing right or interest, by
and for the grantor, in real property being granted to
another. Cf. RESERVATION (1). [Cases: Deeds 137,
141.] -except, vb.
exceptionable (ek-sep-shdn-;:>-b;:>l), adj. (17c) Liable to
objection; OBJECTIONABLE.
exceptional charge. See special charge under CHARGE.
exception clause. A clause that attempts to modify or
exclude the prima facie obligations that arise when a
document is signed. -Also termed exemption clause.
[Cases: DeedsC~137-140.]
exceptio plurium concubentium defense. 1. See
MULTIPLE ACCESS. 2. See exceptio plurium concuben
tium under EXCEPTIO.
exceptis eXcipiendis (ek-sep-tis ek-sip-ee-en-dis). [Latin]
With all necessary exceptions.
exceptor, n. One who takes exception; an objector.
Also spelled excepter.
excerpta (ek-s;,rp-t;:l), n. pl. [Latin] Extracts.
ex certa scientia (eks s;,r-td sI-en-shee-d). [Latin] Of
certain or sure knowledge . This phrase was anciently
used in patents, and imported full knowledge of the
subject matter on the part ofthe sovereign.
exces de pouvoir (ek-say d;:> poo-vwahr). [French
"excess of power"] 1. Int'llaw. Beyond the powers (of
a tribunal). 2. Administrative law. Beyond the powers
ofan official.
excess-benefit plan. See EMPLOYEE BENEFIT PLAN.
excess clause. An insurance-policy provision -usu.
contained in the "other insurance" section of the
policy -that limits the insurer's liability to the amount
exceeding other available coverage . This clause essen
tially requires other insurers to pay first. Cf. ESCAPE
CLAUSE; PRO RATA CLAUSE. [Cases: Insurance
2110.]
excess condemnation. See CONDEMNATION.
excess damages. See DAMAGES.
excess insurance. See INSURANCE.
excess insurer. See INSURER.
excessive assessment. See ASSESSMENT.
excessive bail. See BAIL (1).
excessive damages. See DAMAGES.
excessive drunkenness. See DRUNKENNESS.
excessive execution. An exercise ofa power ofappoint
ment exceeding the limits (express or statutory) set on
the use of the power.
excessive fine. See PINE (5).
Excessive Fines Clause. (1986)The clause of the Eighth
Amendment to the U.S. Constitution prohibiting the
imposition ofexcessive fines. [Cases: Fines C=> 1.3.]
645 Exchequer Division
excessive force. See FORCE.
excessive punishment. See PUNISHMENT.
excessive sentence. See SENTENCE.
excessive verdict. See VERDICT.
excess judgment. See JUDGMENT.
excess jurisdiction. See EXCESS OF JURISDICTION (1).
excess-liability damages. See excess damages under
DAMAGES.
excess limits. Insurance coverage against losses in excess
ofa speCified limit.
excess-lines insurance. See surplus-lines insurance
under INSURANCE.
excess margin. Equity in a brokerage firm's customer
account that exceeds either the legal-minimum dollar
amount for a margin account or the maintenance
requirement.
excess of jurisdiction. (17c) 1. A court's acting beyond
the limits of its power, usu. in one of three ways: (1)
when the court has no power to deal with the kind of
matter at issue, (2) when the court has no power to deal
with the particular person concerned, or (3) when the
judgment or order issued is of a kind that the court
has no power to issue. [Cases: Courts 40.] 2.
A court's departure from recognized and established
requirements oflaw, despite apparent adherence to
procedural form, the effect of which is a deprivation
of one's constitutional right. -Also termed excess
jurisdiction.
excess ofprivilege. (1889) 1. An excessive publication of
a privileged statement -that is, beyond the limits of
the privilege. [Cases: Libel and Slander 2. The
improper and malicious use ofthe privilege to publish
a statement. [Cases: Libel and Slander (;:::7 50.]
excess policy. See excess insurance under INSURANCE.
excess-profits tax. See TAX.
excess reinsurance. See REINSURANCE.
excess reserve. See RESERVE.
excess theory. Insurance. The principle that a tortfeasor
will be considered underinsured if the injured party's
damages exceed the tortfeasor's liability-insurance
coverage. _ This principle allows an injured party
to invoke underinsured-motorist coverage. Cf. GAP
THEORY. [Cases: Insurance C::)2787.]
excess vote. See VOTE (i).
excess water. See WATER.
exchange, n. (14c) Commercial law. L The act of trans
ferring interests, each in consideration for the other.
[Cases: Exchange |
4c) Commercial law. L The act of trans
ferring interests, each in consideration for the other.
[Cases: Exchange of Property ~1.)
bargained-for exchange. See BARGAINED-FOR
EXCHANGE.
like-kind exchange. See LIKE-KIND EXCHANGE.
tax-free exchange. See TAX-FREE EXCHANGE.
1031 exchange. See 1031 EXCHANGE. 2. Money or negotiable instruments presented as
payment; CURRENCY. See MEDIUM OF EXCHANGE. 3.
Ihe interchange or conversion ofmoney. See FOREIGN
EXCHANGE. 4. Ihe payment of a debt using a bill of
exchange or credit rather than money. 5. An orga
nization that brings together buyers and sellers of
securities, commodities, and the like to promote uni
formity in the customs and usages of merchants, to
facilitate the speedy adjustment of business disputes,
to gather and disseminate valuable commercial and
economic information, and to secure to its members
the benefits of cooperation in the furtherance of their
legitimate pursuits . The best-known exchanges are
stock, produce, livestock, cotton, and grain exchanges.
See RECIPROCAL EXCHANGE. [Cases: Exchanges ~
1-15; Securities Regulation ~40.l0-40.16.] 6. The
building or hall where members of an exchange meet
every business day to buy and sell for themselves, or
as brokers for their customers, for present and future
delivery. See SECURITIES EXCHANGE (1). exchange,
vb.
Exchange Act. See SECURITIES EXCHANGE ACT OF
1934
exchange agreement. See AGREEMENT.
exchange broker. One who negotiates money or merchan
dise transactions for others. [Cases: Brokers
exchange rate. The ratio for converting one country's
money into another country's money. See FOREIGN
EXCHANGE.
exchange ratio. The number of shares that an acquir
ing company must give for each share of an acquired
company.
exchange value. See VALUE (2).
Exchequer (eks-chek-~r or eks-chek-~r). (14c) 1. English
law. The government department charged with col
lecting and administering the national revenue; the
treasury department. The name is said to have derived
from the checkered cloth, resembling a chessboard,
that anciently covered the table on which certain of
the king's accounts were tallied, the sums being marked
and scored with counters. 2. COURT OF EXCHEQUER.
Abbe Ex.
Exchequer bill. A bill ofcredit issued in England by the
authority of Parliament; an instrument issued at the
Exchequer, usu. under the authority of an act of Par
liament passed for that specific purpose, containing
an engagement on the part of the government to repay,
with interest, the principal sums advanced.
Exchequer Chamber. An English court ofintermediate
appeal from the common-law courts, namely, the Court
of King's Bench, the Court of Common Pleas, and the
Court of Exchequer . It was established in 1822.
Also termed Camera Scaccarii.
Exchequer Division. Rist. English law. A division of
the High Court of Justice, to which the business of the
Court of Exchequer was specially assigned by section
646 excise
34 of the Judicature Act of IS73, and later merged into
the Queen's Bench Division in ISSl.
excise, n. (iSc) A tax imposed on the manufacture, sale,
or use ofgoods (such as a cigarette tax), or on an occu
pation or activity (such as a license tax or an attorney
occupation fee). -Also termed excise tax. Cf. income
tax and property tax under TAX. [Cases: Taxation C:::c
3251, 3602.]
excise lieu property tax. See TAX.
excise tax. See EXCISE.
excision. See FEMALE GENITAL MUTILATION.
excited utterance. (IS00) A statement about a startling
event made under the stress and excitement of the
event. An excited utterance may be admissible as a
hearsay exception. Fed. R. Evid. S03(2). Cf. PRESENT
SENSE IMPRESSION. [Cases: Criminal LawC:::c363-36S;
Evidence C:::c 120.]
excludable, adj. (1916) 1. (Of evidence) subject to exclu
sion <excludable hearsay>. 2. (Of an alien) ineligible
for admission or entry into a country.
excludable alien. See ALIEN.
exclude. See RIGHT TO EXCLUDE.
excludendo fiscum et relictam (eks-kloo-den-doh
tis-bm et ri-lik-tJm). [Law Latin] Hist. To the exclu
sion of the rights of the Crown and of the widow.
exclusion, n. 1. Tax. An item of income excluded from
gross income. -Also termed income exclusion. [Cases:
Internal Revenue C:::c311O; Taxation C:::c3447.]
annual exclusion. (1940) The amount allowed as non
taxable gift income during the calendar year. The
purpose of the annual exclusion is both to serve as
an estate-planning mechanism (so that gifts made
during the donor's lifetime remain nontestamentary
and nontaxable) and to eliminate the administra
tive inconvenience of taxing relatively small gifts. In
2009, for an individual, the first $13,000 in gifts can
be excluded; for married persons, the exclusion is
$26,000 per couple for joint gifts, regardless ofwhich
spouse supplied the donated property. IRC (26 USCA)
2503. -Also termed annual gift-tax exclusion.
[Cases: Internal Revenue C:::c4206.l0.]
2. Evidence. A trial judge's determination that an item
offered as evidence may not be presented to the trier of
fact (esp. the jury). 3. Insurance. An insurance-policy
provision that excepts certain events or conditions
from coverage. [Cases: Insurance C:::c209S.] -exclude,
vb. -exclusionary, adj.
automobile exclusion. A provision in some commer
cial general liability policies, excluding coverage for
damages arising from the use (including loading and
unloading) ofan automobile, aircraft, or other motor
vehicle owned, operated, rented, or borrowed by the
insured. [Cases: Insurance C:::c227S(i3).]
business-risk exclusion. An exclusion in some com
mercial general liability policies, excluding coverage
for common risks of doing business, including harm to the insured's product or work, damages
arising from a product recall, damages arising from
the insured's failure to perform under a contract,
or damages arising from a failure of the insured's
product to perform as intended. [Cases: Insurance
C:::c227S(20).]
design-defect exclusion. A provision in some umbrella
policies and some older commercial general liability
policies, excluding coverage for bodily injury arising
from the failure of the insured's product to perform
its intended function because of a defect or defi
ciency in its design, formula, specifications, instruc
tions, or advertising materials. [Cases: Insurance C:::c
227S(21).]
employee-liability exclusion. A provision in some com
mercial general liability policies, excluding coverage
for injury to an employee (or a member ofthe employ
ee's family), arising from and in the course ofemploy
ment with the insured . This exclusion is generally
intended to exclude from coverage all injuries covered
by the workers' -compensation laws. [Cases: Insurance
C:::c227S(1l, 12).]
employment-related-practices exclusion. A provision
in some commercial general liability policies, exclud
ing coverage for damages arising from an insured's
employment practices, including any policy, action, or
omission -such as coercion, demotion, evaluation,
reassignment, discipline, defamation, harassment,
humiliation, or discrimination -that is directed at
the person injured. [Cases: Insurance C:::c227S(1l).]
expected/intended exclusion. A provision in some com
mercial general liability policies, excluding coverage
for property damage or bodily injury that is expected
or intended by the insured, except any harm arising
from the use ofreasonable force to protect a person or
property. This exclusion is sometimes referred to as
"exclusion a" because it is the first exclusion listed on
most policies. -Also termed exclusion a; intentional
injury exclusion. [Cases: Insurance C:::c227S(3).]
failure-to-perform exclusion. A provision in some
commercial general liability policies, excluding
coverage for (1) the loss ofuse ofundamaged property
resulting from the insured's delay or failure in per
forming an obligation, or (2) a design defect or failure
in the insured's product. -Also termed loss-of-use
exclusion. [Cases: Insurance C:::c227S(21).]
knowledge-of-falsity exclusion. A provision in some
commercial general liability policies, excluding
coverage for damages arising from an oral or written
communication made by the insured with knowl
edge that it is false. [Cases: Insurance C:::c2303(2),
2313(2).]
named-insured exclusion. An exclusion limiting lia
bility-insurance coverage to a named insured whose
injuries were caused by another named insured under
the same insurance policy. [Cases: Insurance C:::c
227S(I),274S-2747.]
647
owned-property exclusion. Insurance. A provision in
a comprehensive general-liability insurance policy
allowing only third parties who are injured on or by
the insured's property to make liability claims against
the insurer. The provision ordinarily excludes
coverage for (1) property owned, rented, occupied,
sold, given away, or abandoned by the insured, (2)
personal property in the care, custody, or control
of the insured, and (3) property located where the
insured and its employees work. [Cases: Insurance
(:::::> 2278(25).1
own-product exclusion. A provision in some com
mercial general liability policies, excluding coverage
for property damage to a product that is manufac
tured, sold, handled, distributed, or disposed of by
the insured. [Cases: Insurance C;)2278(21).]
own-work exclusion. A provision in some commer
cial general liability policies, excluding coverage for
damage to the work or services performed by the
insured. [Cases: Insurance (:::::> 2278(21).]
pollution exclusion. A provision in some commer
cial general liability policies, excluding coverage for
bodily injury or property damages arising from the
discharge, dispersal, release, or escape of chemicals,
waste, acid, and other pollutants . Pollution-exclu
sion clauses may take one of two forms: (1) sudden
and accidental, and (2) absolute. The sudden-and
accidental clause, usu. limited to policies issued before
1985, contains an exception under which the damages
are covered (Le., exempted from the exclusion) if the
discharge or other release was sudden and acciden
tal. The absolute pollution exclusion, in most policies
issued since 1985, does not contain this exception.
[Cases: Insurance C=:'2278(17).j
sistership exclusion. A provision in some commer
cial general liability policies, excluding coverage for
damages arising from the withdrawal, inspection,
repair, replacement, or loss of use of the insured's
product or work, to the extent that the product or
work is withdrawn or recalled from the market
because of a known or suspected defect or defi
ciency. -Also termed recall exclusion. [Cases: Insur
ance (>.)2278(24).J
exclusion a. See expected/intended exclusion under
EXCLUSION (3).
exclusionary hearing. See HEARING.
exclusionary practice. Antitrust. A method by which a
firm can gain or maintain monopoly power without the
express or tacit cooperation ofcompeting or potentially
competing firms.
exclusionary rule. (1855) 1. Evidence. Any rule that
excludes or suppresses evidence <despite many excep
tions, hearsay has long been inadmissible under
an exclusionary rule>. Also termed exclusion
ary evidence rule. [Cases: Evidence (:::::> 154, 314.]
2. Criminal procedure. A rule that excludes or sup
presses evidence obtained in violation of an accused
person's constitutional rights <in accordance with the exclusive economic zone
exclusionary rule, the court did not admit the drugs
into evidence because they had been obtained during
a warrantless search of the defendant's home>. See
FRUIT-OF-THE-POISONOUS-TREE DOCTRINE; GOOD
FAITH EXCEPTION. [Cases: Criminal Law
"The deterrence of unreasonable searches and seizures is
a major purpose of the exclusionary rule .... But the rule
serves other purposes as well. There is, for example, ...
'the imperative of judicial integrity,' namely. that the
courts do not become 'accomplices in willful disobedience
of a Constitution they are sworn to uphold: ... A third
purpose of the exclusionary rule ... IS that of 'assuring
the people all potential victims of unlawful government
conduct that the government would not profit from its
lawless behavior, thus minimizing the risk of seriously
undermining popular trust in the government.''' Wayne R.
LaFave &Jerold H. Israel, Criminal Procedure 3.1, at 107
(2d ed. 1992) (quoting Elkins v. United States, 364 U.S. 206,
80S.ct. 1437 (1960); United States v. Calandra, 414 U.S.
338,94 S.Ct. 613 (1974) ( |
414 U.S.
338,94 S.Ct. 613 (1974) (dissent)).
"In the simplest of exclUSionary rule cases, the challenged
evidence is quite clearly 'direct' or 'primary' in its relation
ship to the prior arrest, search, interrogation, lineup or
other identification procedure. Such is the case when that
evidence is an identification occurring at the confrontation
between suspect and victim or witness, a confession or
admission made in response to questioning, or physical
evidence obtained by search or arrest. Not infrequently,
however, challenged evidence is 'secondary' or 'derivative'
in character. This occurs when, for example, a confession is
obtained after an illegal arrest, physical evidence is located
after an illegally obtained confeSSion, or an in-court iden
tification is made following an illegally conducted pretrial
identification. In these situations, it is necessary to deter
mine whether the derivative evidence is 'tainted' by the
prior constitutional or other violation." Wayne R. LaFave
&Jerold H. Israel, Criminal Procedure 9.3, at 471 (2d
ed. 1992).
exclusionary zoning. See ZONING.
exclusive agency. See AGENCY (1).
exclusive-agency listing. See LISTING (1).
exclusive authorization-to-selliisting. See exclusive
agency listing under LISTING (1).
exclusive contract. See EXCLUSIVE-DEALING ARRANGE
MENT.
exclusive control. (1890) Under the doctrine of res
ipsa loquitur, a defendant's sole management of and
responsibility for the instrumentality causing harm .
Exclusive control is a prerequisite to the doctrine's
applicability. See RES IPSA LOQUITUR. [Cases: Negli
gence (:::::>,1614.]
exclusive-dealing arrangement. (1943) An agreement
requiring a buyer to purchase all needed goods or
services from one seller. -Often shortened to exclusive
dealing. Also termed exclusive contract. See require
ments contract under CONTRACT. [Cases: Antitrust and
Trade Regulation
exclusive easement. See EASEMENT.
exclusive economic zone. Int'llaw. An area just beyond
the territorial sea, extending up to 200 nautical miles
from the baseline of the territorial sea, in which the
coastal country enjoys special authority for economic
purposes. Abbr. EEZ.
648 exclusive evidence
exclusive evidence. See EVIDENCE.
exclusive franchise. See exclusive agency under AGENCY
(1).
exclusive jurisdiction. See JURISDICTION.
exclusive license. See LICENSE.
exclusive listing. See exclusive-agency listing under
LISTING (1).
exclusive ownership. See FEE SIMPLE.
exclusive possession. See POSSESSION.
exclusive right of sale. The right to sell a principal's
products or to act as the seller's real-estate agent to the
exclusion of all others, including the owner. -Also
termed exclusive right to sell. Cf. exclusive agency under
AGENCY (1).
exclusive sale. See SALE.
exclusive use. See USE (1).
exclusive-use clause. A lease provision enumerating con
ditions for a lessee's use of the leased property. [Cases:
Bailment C=> 1; Landlord and Tenant C=>134.]
ex colore (eks kd-Ior-ee). [Latin] By color; under color of;
under pretense, show, or protection of.
ex comitate (eks kom-d-tay-tee). [Latin] Out of comity
or courtesy.
excommengement (eks-b-menj-mdnt), n. See EXCOM
MUNICATION.
ex commodato (eks kom-d-day-toh). [Latin "out ofloan"]
Hist. (Of a right ofaction) arising out of a loan.
excommunicant (eks-kd-myoo-ni-bnt), n. (16c) Eccles.
law. 1. An excommunicated person. 2. Rare. An excom
municator.
excommunication, n. (15c) Eccles. law. A sentence of
censure pronounced by a spiritual court for an offense
falling under ecclesiastical cognizance; expulsion
from religious society or community . In England,
an excommunicated person was formerly subject to
various civil disabilities, such as an inability to be a
juror, to be a witness in any court, or to sue to recover
lands or money due. These penalties were abolished
by the Ecclesiastical Courts Act (1813). St. 53 Geo. 3,
ch. 127. -Also termed excommengement. -excom
municate, vb.
"Closely allied to outlawry is excommunication; it is in fact
an ecclesiastical outlawry, and, like temporal outlawry,
though once it was the law's last and most terrible weapon
against the obstinate offender, it is now regarded as a
normal process for compelling the appearance in court of
those who are accused. Indeed as regards the laity, since
the spiritual courts can not direct a seizure of the body,
lands, or goods, those courts must, if mere citations fail to
produce an appearance, at once have recourse to their last
weapon. Then, as ordained by William the Conqueror, the
lay power comes to their aid. If the excommunicate does
not seek absolution within forty days (this period seems
to be fixed already in the twelfth century), the ordinary
will signify this to the kind; a writ for the arrest of the
offender will be issued, and he will be kept in prison until
he makes his submission." 2 Frederick Pollock & Frederic
William Maitland, History ofEnglish Law Before the Time of
Edward 1500 (2d ed. 1899). excommunicato capiendo (eks-kd-myoo-ni-kay-toh
kap-ee-en-doh). [Latin] Hist. Eccles. law. A writ that,
being founded on a bishop's certificate of excommu
nication, required the sheriff to arrest and imprison
the defendant . The writ issued out of chancery and
was returnable to the King's Bench. Cf. DE CONTUMACE
CAPIENDO.
excommunicator. (17c) A person who excommunicates.
excommunicato recapiendo (eks-b-myoo-ni-kay-toh
ri-kap-ee-en-doh). [Latin] Hist. Eccles. law. A writ
commanding that an excommunicant -who had
been committed to prison for obstinacy but who was
unlawfully freed before agreeing to obey the church's
authority -should be found, retaken, and imprisoned
again.
ex comparatione scriptorum (eks kom-pd-ray-shee-oh
nee skrip-tor-dm). [Latin] Bya comparison ofwritings
or handwritings . This term was formerly used in the
law ofevidence.
ex concessis (eks kdn-ses-is). [Latin] From the premises
granted; according to what has already been allowed.
ex consulto (eks kdn-sal-toh). [Latin] With consultation
or deliberation.
ex continenti (eks kon-td-nen-tI). [Latin] Civil law.
Immediately; without any interval or delay.
ex contractu (eks bn-trak-t[y]oo). [Latin "from a
contract"] Arising from a contract <action ex con
tractu>. Cf. EX DELICTO (1).
ex-coupon bond. See BOND (2).
exculpate (ek-skdl-payt or ek-skal-payt), vb. (17c) To free
from blame or accusation. Cf. EXONERATE (1). -excul
pation (ek-sbl-pay-shdn), n. -exculpatory (ek-skal
pd-tor-ee), adj.
exculpatory clause. (1891) A contractual provision
relieving a party from liability resulting from a neg
ligent or wrongful act. A will or a trust may contain
an exculpatory clause purporting to immunize a fidu
ciary from a breach ofduty; the clause may reduce the
degree of care and prudence required of the fiduciary.
But courts generally find that if an exculpatory clause
in a will or trust seeks to confer absolute immunity, it
is void as being against public policy. See EXEMPTION
CLAUSE. [Cases: Contracts C=> 114, 189.5.]
exculpatory evidence. See EVIDENCE.
exculpatory-no doctrine. (1977) Criminal law. The prin
ciple that a person cannot be charged with making a
false statement for falsely denying guilt in response to
an investigator's question . This doctrine is based on
the Fifth Amendment right against self-incrimination.
But the U.S. Supreme Court has overruled this doctrine
in federal law. Brogan v. United States, 522 U.S. 398, 118
S.Ct. 805 (1998). [Cases: Fraud C=>68.1O(1).]
ex curia (eks kyoor-ee-d). [Latin] Out of court; away
from the court.
649 execute
excusable, adj. (I4c) (Of an illegal act or omission) not
punishable under the specific circumstances <excus
able neglect>.
excusable assault. See ASSAULT.
excusable homicide. See HOMICIDE.
excusable neglect. See NEGLECT.
excusatio (ek-skyoo-zay-shee-oh), n. [Latin] Roman 1&
civil law. An excuse or reason that exempts someone
from some duty or obligation.
excusator (ek-skyoo-zay-tdr), n. (l7c) 1. Hist. An excuser.
2. In old German law, a defendant; one who wholly
denies the plaintiff's claim.
excuse (ek-skyoos), n. (l4c) l. A reason that justifies an
act or omission or that relieves a person of a duty. 2.
Criminal law. A defense that arises because the defen
dant is not blameworthy for having acted in a way that
would otherwise be criminal. -The following defenses
are the traditional excuses: duress, entrapment, infancy,
insanity, and involuntary intoxication. Also termed
legal excuse. Cf. JUSTIFICATION (2). [Cases: Criminal
Law 38.] -excuse (ek-skyooz), vb. -excusa
tory (ek-skyooz-;Hor-ee), adj.
excuse by failure of presupposed conditions. See com
mercial impracticability under IMPRACTICABILITY.
excuss (ek-sk<ls), vb. (18c) To seize and detain by law.
excussio (ek-sk3-s[h]ee-oh), 11. [Latin] Roman 1& civil law.
A diligent prosecution ofa remedy against a debtor; esp.,
the exhausting of a remedy against a principal debtor
before resorting to a surety. Also termed excussion.
ex-date. See EX-DIVIDEND DATE.
ex debito justitiae (eks deb-i-toh jas-tish-ee-ee). [Latin]
From or as a debt of justice; in accordance with the
requirement ofjustice; of right; as a matter of right.
ex debito naturali (eks deb-i-toh nach-a-ray-h). [Law
Latin] Scots law. Arising from natural obligation. -The
phrase appeared in reference to an obligation that was
moral rather than legal.
ex defectu juris (eks di-fek-t[y]oo joor-is). [Law Latin]
Scots law. From a defect in the right. _ A seller had
to warrant a purchaser against an eviction based on a
defect in the seller's own right.
ex defectu natalium (eks di-fek-t[y]oo nd-tay-Iee-dm).
[Law Latin] Hist. From defect of parentage. -Formerly,
this phrase appeared in reference to a basis upon which
the court rejected the will ofa bastard who died without
issue.
ex defectu sanguinis (eks di-fek-t[y]oo sang-gwa-nis).
[Latin] Hist. From failure ofblood; for want of issue.
ex detectu familiae (eks di-Iek-t[y]oo fa-mil-ee-ee). [Law
Latin] Hist. From choice of a certain family. _ lhe
phrase appeared in reference to the sovereign's right
to bestow honors on those whom he chose.
ex deliberatione Dominorum Concilii (eks di-lib-a-ray
shee-oh-nee dom-;J-nor-dm bn-sil-ee-I). [Law Latin]
Hist. After consideration by the Lords of Council. "Formerly all writs which passed the Signet were procured
by presentation of a bill (or petition) for such writ. The bill
was perused and considered by the Lord Ordinary on the
Bills, and if he was satisfied, the bill was passed and the
writ issued: the latter bearing the words ex deliberatione
Dominorum Concilii to signify that the bill had been con
sidered. These words are still appended to almost all writs
which pass the signet, but they are now only words of style,
since the writs are now passed periculo petentis without
being submitted to the Lords." John Trayner, Trayner's Latin
Maxims 196-97 (4th ed. 1894).
ex delicto (eks d;J-lik-toh), adj. 1& adv. [Latin "from a
wrong"] 1. Arising from a crime or tort <action ex
delicto>. -Although ex delicto refers most commonly
to a tort in modern usage, it referred historically to
both torts and crimes. Cf. IN DELICTO; EX CONTRACTU.
2. 111t'1Iaw. Rare. As a consequence of a crime or tort
<because they were counterfeit, the goods were seized
and condemned ex delicto>.
ex delicto trust. See TRUST.
ex demissione (eks d;J-mish-ee-oh-nee). [Latin "upon the
demise"] Hist. A phrase forming part ofthe title of the
old action of ejectment. Abbr. ex demo |