Glossary Flashcards
A FORTIORI
A FORTIORI
By reason of being the stronger case. A form of argument. Thus one might seek to argue that if it is lawful for a university to buy land then a fortiori it must be lawful to take land on lease.A FORTIORI
By reason of being the stronger case. A form of argument. Thus one might seek to argue that if it is lawful for a university to buy land then a fortiori it must be lawful to take land on lease.
AB INITIO
From the beginning.
ABSOLVITOR
See decree.
AC
“Appeal Cases”, a series of law reports of cases in the UK Supreme Court and, before that, in the House of Lords. Also privy Council cases..
ACTS OF SEDERUNT
Orders of the Court of Session regulating court procedures.
ACTS OF ADJOURNAL
As Acts of Sederunt, but for High Court of Justiciary.
AD FACTUM PRAESTANDUM
See specific implement.
ADJUST
In a civil action, there is an initial “adjustment” period when the parties can make changes in their written pleadings. At this stage the “record” is “open.” After the adjustment period the “record is closed.” Any changes thereafter are by “amendment.”
ADVOCATE
(i) Member of Faculty of Advocates, specialising in Court of Session and High Court work. Similar to English barrister. (ii) Lawyer who undertakes court cases. (In Scotland, all solicitors are advocates in this sense, but some only for lower courts.)
ADVOCATE GENERAL
(i) The Advocate General for Scotland is a UK Government minister, advising UK Government on Scottish legal matters and representing UK Government in Scottish litigation. Not to be confused with the Lord Advocate. (ii) The Advocates General who advise the Court of Justice of the European Union.
AFFIDAVIT
A statement sworn as true, not in court but before (usually) a notary public. Affidavits can be used as legal evidence in some types of case.
AGENT/AGENCY
See mandate.
ALL ER
“All England”, a series of law reports (mainly English).
AMEND
(i) Where legislation changes the text of earlier legislation, without however repealing it, the earlier text is said to be amended. (ii) See adjust.
APPELLANT
Person appealing to higher court from decision of lower court.
APS
Act of the Parliament of Scotland (until 1707).
ARBITRATION
Where two parties agree to resolve a dispute not by litigation but by referring the matter to the decision of a third person, an arbitrator (or arbiter).
ASP
Act of the Scottish Parliament (from 1999).
ASSOILZIE
(The Z is silent.) To assoilzie is to pronounce decree of absolvitor in favour of the defender.
ATTORNEY
(i) US term for a lawyer. (ii) A “power of attorney” is a document authorising one person to act for another. (A type of mandate.) Eg Adam goes abroad for six months and grants a power of attorney to his sister Morag for that period.
ATTORNEY GENERAL
Minister who advises government on matters of English law, and public international law, and represents Crown in English litigation.
AUDIENCE
If a lawyer has the “right of audience” in a court that means s/he can appear there for a client. Advocates and solicitor-advocates have right of audience in all courts.
Other solicitors only in lower courts.
AUDI ALTERAM PARTEM
Latin: “to hear the other party.” One of the “rules of natural justice”, namely that the other party has a right to be heard.
AVER
To aver is to claim the truth of certain facts. Noun is “averment”.
AVIZANDUM
(i) If a court “makes avizandum” that means that it will not give judgement at once but will take time to consider. (ii) An excellent bookshop specialising in law, at 56A Candlemaker Row. Edinburgh.
BAR
(1) Collective term for lawyers authorised to practice before courts; (2) More narrowly, lawyers who do only court work, ie advocates.
BARRISTER
English equivalent of advocate.
BENCH
(i) Chair on which judge sits (not in fact bench at all); (ii) Collective term for judges. Eg “There are too few women on the bench.”
BILL
A proposed statute that is being considered by the UK or Scottish parliaments.
BLACKLETTER LAW
“Blackletter law” means legal doctrine as opposed, for example, to questions of public policy or legal philosophy. So called because law texts were formerly
sometimes printed in blackletter typeface.
BONA FIDES
(Latin, “good faith.”) Good faith. (Fide is the ablative form eg “The purchaser was in bona fide.”) To be in good faith is to act honestly, to be unaware of any irregularity or wrongdoing. Eg a purchaser from a thief is in good faith if s/he has no reason to suspect that the goods are stolen.
BURDEN OF PROOF
See onus probandi.
CANON LAW
Law of the Christian Church. Some parts of canon law (eg much of family law) became part of ordinary law, in Scotland and elsewhere.
CAPACITY
The ability to have rights and enter into juristic acts. Some persons have restricted capacity. Thus a person with severe mental handicap (see incapax) could own property (passive capacity) but not, on his own, sell it. Again a company has legal capacity for most things but not eg marriage.
CAUSE
(i) The reason for something. (ii) A court case.
CAUTION
(Pronounced “cayshun.”) A guarantee for someone else’s debt.
CITATION
To cite is to call a person to court, whether as a party or as a witness.
CIVIL
As well as being the opposite of criminal, civil also means Roman. “Civil law” = Roman law. A “civilian” legal system is one much influenced by Roman law
CLAIMANT
English term for pursuer. (Until 1999 claimants were called plaintiffs.)
CODE
(i) Part of the Corpus Juris Civilis. (ii) A statute that systematically sets forth the whole of a large area of law. The two most famous codes are the French Code Civil (also called the Code Napoléon) and the German Bürgerliches Gesetzbuch (the BGB). They have had international influence.
COLLEGE OF JUSTICE
Established by the College of Justice Act 1532. Effectively another name for the Court of Session.
COMMENCEMENT
A statute that has received Royal Assent is not “in force” until it has been “commenced”. This can happen immediately on Royal Assent but usually happens later, eg several months.
COMMISSIONERS OF JUSTICIARY
Judges of High Court of Justiciary.
COMMON LAW
(i) Unenacted law. (ii) A collective term for the Anglo-American legal systems.
COMPENSATION
As well as ordinary meaning, compensatio means mutual extinction of debts. A owes B £1000 and B owes A £700. By compensation these collapse to A owing B £300.
COMPETENCE
What an official or an official body can lawfully do. Eg: “An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.” (Scotland Act 1998 s 29(1).) Or: “The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.” (TEU article 5.)
COMPLAINT
Criminal charge by procurator fiscal, triggering “summary” procedure, ie trial without jury. Contrast indictment. Oddly the term “complainer” refers to victim of the crime, not to the prosecutor.
CONCLUSION
Statement in a writ of what the pursuer seeks from the court, eg damages, divorce etc. Also verbal form eg “pursuer concludes for damages of £200,000”.
CONDEMNATOR
See decree.
CONDESCENDENCE
Statement of (alleged) facts within a writ.
CONFIRMATION
Authorisation from local sheriff court necessary before executor can wind up estate.
CONSENSUS IN (AD IDEM PLACITUM)
Agreement. The two parties to a contract must intend the same thing – otherwise no valid contract exists.
CONSISTORIAL
Consistorial law is family law.
CONSOLIDATION
A consolidation statute is one which does not make new law but which repeals and re-enacts earlier legislation, in the interests of tidiness and simplification, is called a consolidating act.
CONSTRUCTION
Interpretation. Verb is construe ie interpret.
CONVENTION RIGHTS
Rights conferred by the European Convention on Human Rights
CONVENTIONAL
By agreement.
CORPORATION
Any juristic person other than a partnership.
CORPUS JURIS CIVILIS
Latin: “body of civil law”. Most important legal text of all time. Compilation of Roman law issued in Constantinople in 6th c AD on orders of Emperor Justinian. Four parts: (i) Institutes (Institutiones); (ii) Digest (Digesta or Digestum), also called Pandects (Pandectae); (iii) Code (Codex); (iv) Novels (Novellae).
COUNSEL
An advocate. Senior counsel = Queen’s Counsel. Junior counsel = any advocate other than a QC.
COUNTERCLAIM
A claim made by defender against pursuer, in addition to his defences to the pursuer’s action.
COURT OF JUSTICE OF THE EUROPEAN UNION
Court of the European Union. Sits in Luxembourg. (Do not confuse with the European Court of Human Rights.) Divided into (i) the Court of Justice, (ii) the General Court and (iii) the Civil Service Tribunal.
COURT OF SESSION
Established 1532. Sits in Edinburgh only. Divided into Outer House and Inner House. Outer House is a court of first instance. Inner House hears appeals from Outer House and other lower courts. Judges are called “Lords of Council and Session” or “Senators of the College of Justice.”
CRAVE
Same as conclusion. “Crave” is used in the sheriff courts.
CROWN
Term used to mean the state, which the Queen personifies.
CROWN AGENT
Civil service solicitor in charge of criminal cases.
CROWN AND PROSECUTION SERVICE
The prosecution service.
CULPA
Fault.
CULPABLE HOMOCIDE
Criminal killing falling short of murder.
CURATOR BONIS
(Latin, “administrator of property”.) A type of judicial factor, appointed to look after the affairs of an incapax. The term has now been replaced by “guardian”.
DAMAGES
(Always plural) means not harm but the right to compensation for harm.
DAMNUM
Latin: Loss. Damnum injuria datum means loss caused by wrongdoing (ie by another person).
DE MINIMIS NON CURAT LEX
Latin: the law is not concerned with trivial matters. The law usually disregards trivial deviations from norms.
DEBATE
Court hearing in which questions of law are argued and determined. Contrast “proof.”
DECERN
A court is said to “decern” when it issues its decree.
DECLARATOR
Decree setting forth existence of rights without necessarily seeking to enforce them.
DECREE
(Stress is on first syllable.) The order of a court disposing of a case, in favour of the pursuer or the defender. The three main types of decree are (a) condemnator, in which the pursuer’s case is upheld, (b) absolivitor, in which the defender’s case is upheld, and (c) dismissal, in which no decision is reached, eg because the pursuer has abandoned the action or because the pursuer has sued in the wrong court etc. Dismissal is decree in favour of defender but since no determination of dispute not res judicata. A decree in absence is where defender has not appeared. Decree in foro contentioso is where defender has appeared.
DEFENDANT
English term for defender.
DEFENDER
Person against whom an action is raised, opposite of pursuer.
DELEGATED LEGISLATION
See secondary legislation.
DELICT
(In England called tort.) A civil wrong other than breach of contract. Jack, driving carelessly, knocks Jill off her bike, and the bike is damaged and her arm is broken. That is a delict. A delict may be deliberate, or (more usually) a matter of negligence. Some delicts are also crimes: eg a mugging is both a crime and a delict. Some delicts are not crimes (accidental causing of harm is not a crime at common law though sometimes is by statute) and a few crimes are not delicts, eg possessing narcotics. (The law of delict is also called the law of reparation.)
DEVIL
Person training to be an advocate.
DEVOLUTION
The grant of limited administrative and legislative power to a sub-national unit. In the UK there is devolution to Scotland, Wales and Northern Ireland. The areas of law where power is devolved are called devolved areas. The remainder are called reserved areas. For instance the Scottish Parliament has legislative competence on property law (devolved) but not on company law (reserved).
DIET
A meeting; a date fixed for the hearing of a case.
DILIGENCE
The set of processes whereby a decree for payment can be enforced against the assets of the defender.
DIRECTIVE
EU legislation that has to be transposed by the members states – hence an order to members states requiring them legislate in certain terms. By contrast, EU regulations take effect without the need for transposition.
DIRECTOR OF PUBLIC PROSECUTIONS
Heed of the English Crown Prosecution Service.
DISMISSAL
See decree.
DISTINGUISH
To distinguish a precedent is to show that the precedent in fact deals with a different situation and so is not a true precedent.
DOMINIUM
(Latin.) Ownership.
ENACTMENT
General term for item of legislation, including statutes and statutory intruments.
ENTAIL
English term (also sometimes used here) for tailzie.
EQUITY
Slippery word with many meanings. (i) Special branch of English law. (ii) Fairness, to be applied where law is silent or too rigid. (iii) Share capital of company. (iv) Value of land or buildings minus debt secured thereon.
ESTO
(Latin: “let it be so”, ie even if.) Jack asks Jill out. She doesn’t fancy him. Her reply: “I am not free this evening, but esto I were free I would still not go out with you.”
EUROPEAN CONVENTION ON HUMAN RIGHTS
International treaty, sponsored by Council of Europe, binding member states to respect certain rights.
EUROPEAN COURT OF HUMAN RIGHTS
Court set up by Council of Europe to interpret and apply European Convention on Human Rights. Sits in Strasbourg. Not a court of the EU.
EUROPEAN COURT OF JUSTICE
See Court of Justice of the European Union.
EXCAMBION
A swap. Verb is excamb.
EXCEPTION
A defence in an action.
EXCUTION
(i) Capital punishment; (ii) Performance of a contract; (ii) Signing of a deed; (iv) Seizure of assets for debt.
EX LEGE
Latin: “out of law”. By reason of law. The contrast is with something which is based on consent (ex voluntate).
EX VOLUNTATE
See ex lege.
EXTRACT
A full and officially certified copy of something. Eg extract decree.
FACULT OF ADVOCATES
Professional body to which all advocates belong. Presided over by the Dean of Faculty.
FEUDAL LAW
Mediaeval land law. Land was not owned absolutely (allodially) but “held” of a “superior” who held of a higher superior, up to Crown. The last remains of feudal law are abolished by the Abolition of Feudal Tenure etc (Scotland) Act 2000.
FIRST INSTANCE
A court of first instance is a non-appellate court, eg Outer House. “At first instance the pursuer was successful but on reclaiming the defences were sustained” = pursuer won in Outer House but lost on appeal to Inner House.
FISCAL
See procurator fiscal.
GOOD FAITH
See bona fides.
HANSARD
The official reports of proceedings in the Westminster Parliament.
HERTIABLE
Heritable or immoveable property means land and buildings. Everything else is moveable property. Heritable security means a security over heritable property, securing a loan. (English mortgage.)
HER MAJESTRY ADVOCATE
Same as Lord Advocate. HMA is the term used in criminal procedure.
HIGH COURT OF JUSTICIARY
Highest criminal court. Both trials and appeals. based in Edinburgh but goes “on circuit.” The judges (Commissioners of Justiciary) are nowadays same persons as Court of Session judges.
HOLYROOD
An area of Edinburgh. The Scottish Parliament is there, and “Holyrood” is sometimes used as shorthand for the Scottish Parliament
HOUSE OF LORDS
(i) The upper house of the UK Parliament, whose members are unelected. House of Commons can override its veto. (ii) Formerly the highest court of appeal in civil matters. (In theory (ii) was a committee of (i).) As a court, now replaced by UK Supreme Court.
INCAPAX
Someone not able to look after their affairs; lacking in full legal capacity. Eg insanity or mental handicap.
INDICTMENT
(Pronounced “indyitement.”) Criminal charge by HMA, triggering “solemn” procedure ie trial by jury. Contrast complaint.
INJURIA
Wrongdoing, delict. Does not mean “injury.
INNER HOUSE
Highest appeal court (except UKSC and ECJ) for civil matters. Normally small divisions of three or four judges so as to increase throughput.
INSTITUTIONAL
Institutional writings are works that have come to be accepted as being of high authority. The institutional writers for Scots law are (i) Thomas Craig (1538 - 1608), (ii) James Dalrymple, Lord Stair (1619 - 1695), (iii) George Mackenzie (1636 – 1691), (iv) Andrew McDouall, Lord Bankton (1685 - 1760), (v) John Erskine (1695 - 1768), (vi) David Hume (1757 - 1838) (vii) George Joseph Bell (1770 - 1843) and (viii) Archibald Alison (1792 - 1867). But distinction between these and other highly- regarded authors is open to debate.l.
INTER ALIA
Latin: “among others” (ie other things).
INTER ALIOS
Latin: “among others” (ie other persons); as between other people.
INTER SE
Latin: “between the living”. Between living persons. Opposite of mortis causa.
INTERDICT
Latin: “between them”. As between themselves.
INTERLOCUTOR
A court order forbidding someone from doing something.
INTERNATIONAL PRIVATE LAW
Any order made by court. The final interlocutor disposing of the case is called the decree. A court is said to “pronounce” an interlocutor.
INTESTATE
(Not to be confused with public international law.) Also called private international law, or the conflict of laws. Where more than one legal system potentially involved. Two types of issue: (i) The law of which system applies? (ii) The courts of which system have jurisdiction?
IRRELEVANT
See testament.
J
See relevancy.
JOINT AND SEVERAL
In Latin words a consonantal letter I can be written as I or as J: for instance you can write either Iulius Caesar or Julius Caesar.
JUDGEMENT
Joint and several liability, also called solidary liability, is where two or more persons are liable for the same debt, in full. Creditor can claim all from either, but of course cannot recover more than total due.
JUDICIAL FACTOR
(Spell to taste.) (i) English term for decree. (ii) Opinion given by judge explaining the decree being granted.
JUDICIAL REVIEW
A person appointed by court to administer property, investments etc for some special reason. Eg curator bonis
JURISPRUDENCE
Court challenge to lawfulness of administrative act. Defender typically eg Secretary of State or local authority or governmental agency.
JURIDICAL ACT
(i) Law or legal system. Eg “jurisprudence of Italy” = Italian law. (ii) Philosophy of law. (iii) Caselaw.
JURISDICTION
A lawful act which changes the legal situation. Eg the making of a contract, the raising of an action, getting married. Only a person with legal or juristic capacity can do juristic acts. (Contrast a juridical event, which is an event which changes the legal situation but is not a deliberate act, eg death. Also contrast illicit acts, such as delicts.)
JURISTIC PERSON
The extent of a court’s power. Thus the Sheriff Court has jurisdiction to try cases of theft but not cases of murder. It has jurisdiction to deal with a boundary dispute between neighbours in Scotland but not in Norway.
JUS
Also called artificial or legal or moral person. Law divides persons into natural (ie human beings) and juristic. Some juristic persons exist in public law (eg City of Edinburgh Council) and other in private law (eg Royal Bank of Scotland plc).
JUS COMMUNE
Latin. (i) Law. (ii) A right.
JUS IN RE
Latin: “common law.” The common law of much of mediaeval and early modern Europe, based on Roman, canon, and feudal law.
JUS QUAESITUM TERTIO
Latin: “a right in a thing.” Or jus in rem. Same as real right.
JUS RELICTAE
Latin: “right sought by a third party.” A JQT is where a contract between A and B creates rights in favour of C. Also called stipulatio in favorem tertii.
JUSTICE OF THE PEACE COURT
See legal rights.
JUSTICIARY
Deals with minor crimes.
LAND REGISTER
See High Court of Justiciary. “Justiciary” law means criminal law.
LAW AGENT
All heritable property (land and buildings) is registered in a register in Edinburgh. The old register was the Sasine Register but property titles are gradually being transferred to the new Land Register.
LAW COMMISSIONS
Solicitor.
LAW SOCIETY OF SCOTLAND
Permanent bodies set up by Law Commissions Act 1965 to propose law reform. (i) Law Commission (London) and (ii) Scottish Law Commission (Edinburgh).
LEGAL RIGHTS
Professional body to which all solicitors belong.
LEGISLATIVE COMPETENCE
As well as the ordinary meaning of the expression, “legal rights” are inheritance rights of the family which cannot be defeated by testament. If my testament leaves everything to X, my wife and children still can claim their “legal rights” from my estate - legitim for the children and jus relictae for the widow.
LEGITIM
See devolution.
LIFERENT
See legal rights.
LOCUS STANDI
Right to use property for your lifetime. Thus liferenter (or liferentrix) is not owner. Also called usufruct. Despite name, no “rent” payable.
LORD ADVOCATE
See title to sue.
LORD CHANCELLOR
Scottish Government minister. Advises SG on matters of Scots law. Represents Crown in litigation. In criminal cases called “Her Majesty’s Advocate.” Not to be confused with the Advocate General.
LORD OF COUNCIL AND SESSION
Formerly chief judge in House of Lords and minister of justice for England. Today the LC has only the latter function.
LORD JUSTICE CLERK
A Court of Session judge.
LORD JUSTICE GENERAL
Second highest judge, civil and criminal. Presides over Second Division of Inner House.
LORD ORDINARY
Highest criminal judge. Post always nowadays held by same person as Lord President.
LORD PRESIDENT
A judge of the Outer House.
LUXEMBOURG
Highest civil judge.
LYON
Where the Court of Justice of the European Union sits.
MANDATE
The Lyon Court has jurisdiction in heraldic matters etc. Judge is the (splendidly named) Lord Lyon King of Arms.
MARGIN OF APPRECIATION
Authorisation by X to Y to enter into juridical acts (eg contracts) on X’s behalf. Also called agency. Simple example: Jack asks Jill to buy a kilo of apples for him.
MASTER OF THE ROLLS
The degree of discretion that states have in giving effect to Convention Rights.
MENS REA
Judge who presides over the English Court of Appeal.
MORA
Latin: “guilty mind.” In general a person cannot be found guilty of a crime unless there was mens rea as well as the overt act (actus reus). On leaving your house I take your umbrella instead of mine by mistake. This is not theft.
MORTIS CAUSA
(Latin.) Delay.
MOTION
Request to court during an action. Reclaiming motion is appealed from Outer to Inner House.
MOVEABLE PROPERTY
All property other than land and buildings. Opposite of heritable.
MUNICIPAL LAW
Law of a state or province e.g. French law, Scots law, as opposed to a wider system such as EC law or international law
NATURAL JUSTICE
As lawyers use this phrase, the rules of procedural fairness, such as nemo judder in causa us and audi alteram partem
NEMO JUDEX IN CAUSA SUA
Latin “nobody (should be) a judge in his own cause.” Inters in the outcome should disqualify a judge. One of the rules of “natural justice.”
NEMO PLUS JURIS AD ALIUM TRANSFERRE POTEST QUAM IPSE HABERET
Latin: “no one can transfer to another a greater right than s/he him/her/self has.” Thus a thief cannot give ownership to a buyer – even a good faith buyer. Rule has some exceptions. Alternative formula is nemo dat quod non habet - no one “gives” (ie transfers) what s/he does not have.
NOBILE OFFICIUM
The power of the Court of Session and High Court to modify the law in technical points, adhering to the spirit of the law. Used only in clear cases.
NOTARY
Or notary public. Person authorised to take sworn statements (affidavits)
and to authenticate some types of document. Notaries exist in all legal systems. In Scotland all notaries are solicitors.
NOVATION
The replacement of one obligation by another, by mutual consent.
NULLITY
Something is absolutely null (void) if it appears valid but in fact has no legal effect at all, for instance a forged testament, or a contract signed at gunpoint. A thing is relatively null (voidable) if it is valid but can be made null at the option of someone. Eg a contract entered into by fraud is voidable and the defrauded party can annul (avoid) the contract or not at his/her option. See reduction.
OBITER DICTA
(Latin, “things said by the way.”) Singular is obiter dictum. Things said by judge which are not necessary to reach her/his decision. Opposite of ratio.
OBTEMPER
OBEY
OFFICIAL JOURNAL
Of the European Union. EU legislation published in it
ONUS PROBANDI
Burden of proof. Thus usually it is for the pursuer to prove her/his case, ie the onus is on him/her. In civil cases the pursuer must prove her/his case “on a balance of probabilities,” whereas a criminal case must be proved “beyond reasonable doubt.”
OPINION
(i) Of judge, explaining her/his decision. Sometimes called judgment. (ii) The written discussion of a legal problem, given by an advocate or other expert.
OUTER HOUSE of Court of Session.
Judges sit singly to hear cases at first instance.
OVERRULE
Where an appellate court says that a decision of a lower court in another earlier unconnected case was wrong. Not to be confused with “reverse.”
PANNEL
Person being criminally prosecuted.
PARLIAMENT HOUSE (PH)
Building that was home of Parliament until 1707. Since then home of Court of Session.
PARTY
A person involved in some legal event, eg a party to a court action, or a party to a contract.
PARTY LITIGANT
A person who conducts his/her own case, instead of using a lawyer.
PATRIMONY
The totality of a person’s assets and liabilities. A patrimony is like a suitcase with two compartments, one for assets and the other for liabilities. “Patrimonial loss” means loss that lessens the net value of the patrimony, ie economic loss.
PER INCURIAM
By mistake. A court decision is said to be per incuriam if court not informed of all relevant authorities.
PERSON
A subject of legal rights and duties. Persons are either (i) natural (ie human beings) or juristic (eg Royal Bank of Scotland plc, City of Glasgow Council).
PERSONAL BAR
Where someone is prevented from enforcing a right where s/he has led the other side to suppose that the right would not be enforced. (In England called estoppel.)
PETITIONER
Similar to pursuer, but where action takes form of petition.
PLAINTIFF
Former English term for pursuer. (Modern term is claimant.)
PLANNING LAW
Or more fully “town and country planning law.” Law regulating use of land and buildings, requiring permission for new construction etc.
POINT
To be “in point” means to be relevant. Thus if court “distinguishes” an earlier case it does so because it is not “in point.”
POSITIVE LAW
Law as it is (as opposed to what it should be)
POSSESSION
To be distinguished from ownership. Jill owns a bike. Keira steals it. Jill now has ownership but not possession, whilst Keira has possession but not ownership.
PRECEDENT
The doctrine of precedent, also called doctrine of stare decisis, is that where law has been settled in a case, later cases should follow same rule. “A” precedent is a prior case on which reliance is placed. A “binding” precedent is one which the court must follow. A “persuasive” precedent is one which has weight but is not binding. (Eg English cases are usually only persuasive precedents here.)
PRELIMINARY RULING
Where a disputed issue of EU law arises in a case before a national court, the court can refer the issue to the Court of Justice of the European Union for a decision on that issue.
PRESCRIPTION
(i) Negative or extinctive prescription means the loss of rights by non-enforcement for a certain period of years. Thus a debt not claimed will eventually prescribe. (ii) Positive or acquisitive prescription means acquisition of ownership by possession over a certain period of years.
PRIMA FACIE
Latin: “at first sight”. A prima facie case, or prima facie evidence, is where there is enough evidence to lead to a particular conclusion – but always subject to the possibility that other evidence will emerge to contradict the prima facie evidence.
PRIMARY LEGISLATION
Legislation in the form of a statute (Westminster or Holyrood). As contrasted with secondary legislation.
PRIOR TEMPORE POTIOR JURE
Latin: “earlier by time, stronger by right.” A maxim applicable in many branches of law.
PRIVATE LAW
All law except public.
PRIVY COUNCIL (PC)
(i) A body which in theory advises Queen. “Order in Council” is royal decree to which this body has nominally assented: in practice a type of government order. (ii) Appeal court for certain Commonwealth countries, and for a short period for Scotland.
PROCURATOR
Solicitor, so called when appearing in court.
PROCURATOR FISCAL (PF)
Local state prosecutor. (Qualified either as solicitor or advocate.)
PRONOUNCE
For a court to pronounce an order is simply to issue it.
PROOF
Court hearing in which the facts are investigated. (Contrast “debate”) A proof before answer is a proof where disputed points of law are left open until after the proof.
PROTOCOL
This word has several meanings. One is an addition to a treaty. Eg “ECHR A1P1” = article 1 of Protocol 1 of the ECHR. (This protects property rights.)
PUBLIC LAW
Law concerning the state (Crown) and state organisations (eg local authorities). Examples: tax law, planning law, constitutional law, criminal law. Opposite of private law.
PUBLIC INTERNATIONAL LAW
Law between states, eg law of war, law of the sea etc. Not to be confused with private international law.
PURSUER
The person who raises an action. Opposite of defender.
QUANTUM
“How much.” The extent of a loss suffered, in money terms.
QUASI-CONTRACT
Another name for the law of unjustified enrichment.
QUEEN’S COUNSEL
After about 10 to 15 years an advocate is normally appointed QC. Little more than a title.
QUOAD
(Latin, “as to”.) With reference to. Quoad ultra = as to the rest, ie with reference to the remainder of some matter
RATIO DECIDENDI
Latin: “reason for deciding”. Or ratio for short. Reason or rule of law on which decision is based. (A case which turns purely on disputed facts will not have any ratio.) Contrast obiter dicta.
REAL RIGHT
A right in a thing, as opposed to a right against a person (personal right). Eg ownership and servitude.
RECLAIM
Appeal is so called when from Outer to Inner House.
RECORD
See adjust.
REDUCTION
A court reduces something if it sets it aside, ie declares it null. Reduction may of many things, such as a contract, a testament, or even a decree. Reduction is available both for void and voidable cases.
REGIAM MAJESTATEM
Medieval Scottish legal text.
REGULATION
(i) Some statutory instruments are called regulations. (ii) EU legislation which (unlike a directive) takes effect in members states without the need for transposition.
RELEVANCY
One possible defence to an action is that, as stated, it is “irrelevant” ie even pursuer can prove all his/her alleged facts they still would not entitle her/ him to the remedy s/he seeks.
RELICT
Gender-neutral term meaning widow or widower.
REPERATION
See delict.
REPEL
See sustain.
RES JUDICATA
Latin: “an adjudicated matter.” Principle that once a court has decided a point and all appeals have ended, unsuccessful party should not be able to re-open issue in other proceedings.
RESET
Knowingly taking stolen goods from the thief. Noun is resetter.
RECSCIND
To withdraw from a contract on the ground of the other party’s breach of it.
RESILE
(i) To withdraw from an agreement before it has become a binding contract. (ii) To withdraw from a contract.
RESPONDENT
(i) In an appeal, the non-appealing party, ie opposite of appellant. (ii) In a petition, the respondent corresponds to the defender in an ordinary action.
REVERSE
Where appellate court holds that the decision appealed from was wrong, it reverse the lower court’s decision. Not to be confused with overrule.
ROYAL ASSENT
Statutes have no effect until Queen consents: this is Royal Assent. (Royal Assent has not been refused since 1708.)
SASINE REGISTER
Register of landownership established by Registration Act 1617. Gradually being replaced by Land Register.
SCOTS LAW TIMES
Journal that is both (a) a series of law reports and (b) an ordinary law journal. Within each volume there are separately-paginated sections. Example: McGhee v Lord Advocate 1992 SLT 2; Morton v City of Dundee 1992 SLT (Sh Ct) 2. 1992 SLT (News) 2 is middle of article by A G M Duncan
SECTION
Statutes are divided into bite-size chunks called sections. The vary in length from a dozen words to several hundred. They are sometimes sub-divided into “paragraphs”.
SECONDARY LEGISLATION
Also called subordinate or delegated legislation, ie legislation not by Act of Parliament but by a procedure authorised by an Act of Parliament. Most such legislation is by statutory instrument.
SENATOR OF COLLEGE OF JUSTICE
Court of Session judge.
SEQUESTRATION
Formal bankruptcy. Administered by a trustee in sequestration.
SERVITUDE
A right held by one landowner in relation to neighbouring property. Eg servitude of way is private right of way across someone else’s land.
SHERIFF
Judge in sheriff court, backbone of the court system. Jurisdiction on most matters, civil and criminal.
SHERIEVAL
Adjectival form of “sheriff.”
SILK
To “take silk” means to be appointed a QC. As noun, a QC.
SIST
(Noun and verb.) (i) To sist an action is to suspend all further procedure for the time being. But the action remains in existence, and the sist can be recalled. (ii) To sist a party in an action is to bring that party in as additional party. Eg pursuer dies, and her/his executor is “sisted” to carry on action.
SOLATIUM
Latin: “consolation” or “solace”. Damages for to compensate for suffering, as opposed to patrimonial loss.
SOLEMN
See indictment.
SOLICITOR
Lawyer qualified to do all legal work except no right of audience in Court of Session or High Court. But some solicitors, called solicitor-advocates, have such rights.
SPECIFIC IMPLEMENT
Remedy of getting someone to perform an obligation itself, as opposed to damages for its non-performance. A decree of specific implement is commonly called a decree ad factum praestandum.
STARE DECISIS
Latin: “to stand by the decisions.” See precedent.
STATUTE
Act of Parliament. (Westminster or Holyrood.) Primary legislation.
STATUTORY INSTRUMENT
See secondary legislation.
STRASBOURG
City on the French/German border where the European Court of Human Rights (ECtHR) sits.
STYLE
A model form of a document, which lawyers may look at to help them prepare actual documents.
SUBORDINATE LEGISLATION
See secondary legislation.
SUMMARY
Any type of accelerated or simplified procedure. In criminal law, see complaint.
SUPREME COURT OF THE UNITED KINGDOM (UKSC)
Established by Constitutional Reform Act 2005. It took over the judicial functions of the House of Lords (and the Judicial Committee of the Privy Council in relation to devolution issues). Highest court of appeal in civil and constitutional matters (and, in England, criminal also).
SUSTAIN
If a court sustains an argument, that means it accepts it. Opposite of “repel.”
TAILZIE
Also called entail. A way of making land non-transferable so that it would pass from heir to heir for ever. Now abolished.
TERTIUS
(Latin, “third”.) See third party.
TESTAMENT
Will. A person is said to die testate or intestate according to whether there is a testament (will) or not.
TEU
Treaty on European Union. One of the two core treaties on which the European Union is based.
TFEU
Treaty on the Functioning of the European Union. One of the two core treaties on which the European Union is based
THIRD PARTY
(Also called a tertius.) Legal transactions are often between two persons. In that case anyone else is called a third party. Eg third party motor insurance is where insurance contract between motorist and insurance company covers claims against motorist for damages by third parties (eg an injured pedestrian).
TITLE TO SUE
One possible defence to a claim is that the pursuer has no title to sue, ie even if defender has acted unlawfully, the right to object is vested in someone, not in the pursuer. Also called locus standi.
TORT
English term for delict.
TRANSPOSE/TRANSPOSITION
Or implement/implementation. To give effect to a EU directive within the law of a member state. For instance, the Consumer Protection Act 1987 transposed Directive 85/374.
TRAVAUX PREPARATOIRES
(French, “preparatory works). The official reports and discussions leading up to legislation.
TREATY OF UNION
Treaty between England and Scotland in 1706. Given effect to for England by the Union with Scotland Act 1706 (English Parliament) and for Scotland by the Union with England Act 1707 (Scottish Parliament).
TRUST
Normally ownership and benefit coincide. I own my bike, and I use it for my benefit. In a trust, one person has ownership (the trustee) but must use it for the benefit of another person or group (the beneficiaries).
ULTIMUS HAERES
ULTIMUS HAERES (Latin, “ultimate heir.”) If someone dies intestate and without relict or traceable relations then Crown takes estate as ultimus haeres.
ULTRA VIRES
(Latin, “beyond the powers.”) Corporations are often restricted in what they can do. Acts outwith these powers are ultra vires and may thus be null. A statutory instrument can also be ultra vires if it goes beyond what was authorised by the Act of Parliament in question. The Scottish Parliament would be acting ultra vires if it purported to legislate on (eg) copyright law.
UNJUSTIFIED ENRICHMENT
Example: suppose I absentmindely pay a bill twice, the other person is unjustifiably enriched and must return the second payment. Her/his obligation so to do is not contractual or delictual, but belongs to this other branch of law.
UNSUFRUCT
See liferent
VOID, VOIDABLE
See nullity.
WESTMINSTER
A part of London, where the UK Parliament is. “Westminster” is often used as a shorthand for the UK Parliament.
WRITER TO THE SIGNET (WS)
Society of Writers to the Signet is ancient order of solicitors, formerly holding special rights, but now simply a professional association.
