Master Deed Flashcards
Ab Initio
- From the beginning.
(Lat.) means from the beginning; and
Absolute
- Complete and final.
- Without encumbrances.
- Not liable to change.
means any Instrument, Rule, Decree or Record issued under the proper Rule of Law that is complete and final, without encumbrances or liable to change or cancellation; and
Absolute Owner
- The person capable of disposing.
- Right to hold or dispossess…
- Fee Simple or Dominium Utile rights.
- The whole interest in land…
- Although the interest is encumbered.
means the owner or person capable of disposing, by disposition or otherwise of the fee simple, or dominium utile, of the whole interest of or in land, although the land or his interest therein is burdened, charged or encumbered; and
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Dominium Utile
Dominium Utile. In the civil law. Equitable or prætorian ownership; that which was founded on equity. Mackeld. Rom. Law, § 327, note. In later law. Use without property; the right of a tenant. Tayl. Civil Law, 478. In feudal law. Useful or beneficial ownership; the usufruct, or right to the use and profits of the soil, as distinguished from the dominium directum (q. v.) or ownership of the soil itself; the right of a vassal or tenant. 2 Bl.Comm. 105.
Black´sLawDictionary, 4th Revised Edition, 1968, p. 574.
Dominium directum et utile is a Latin legal term referring to the “complete and absolute dominion [in property]”; i.e. the union of the title and the exclusive use.
Dominium directum et utile is a Latin legal term referring to the “complete and absolute dominion [in property]”; i.e. the union of the title and the exclusive use.[1]
Definitions
Dominium directum (Feudal): the right of the lord (i.e., the right to direct) in the disposition of an asset (typically land).Dominium utile (Feudal): the right of use and utility of an asset, and to keep the benefits (such as the right to live on the land, and to keep the profits from agriculture).
The terms derive from Latin dominium (domain, dominion), directum (direction, in the sense of leadership), and utile (use, utility).
An asset is defined to mean itself and those things that naturally go with it. For land, that would include buildings, trees, underground resources, etc. It would not include “movable” property, such as wagons or livestock.
The holder of the dominium directum is considered the superior (i.e., the lord); the holder of the dominium utile is considered the inferior (i.e., the vassal).
Dominium utile includes the right of the holder to keep any income or profit derived from the asset.
The transfer of the dominium directum does not affect the rights of any holders of dominium utile. The holder of a dominium utile has no right of transfer (however, there were usually conditions allowed for, such as transfer to a son in the event of death).
The definition was constructed from the sources. [2][3][4][5][6]
Additional explanations
The “lord” holding dominium directum may be anyone with sovereign power over the asset, such as a monarch or other nobility, or an established Christian Church.
Abstract
- Summary of pertinent facts.
- From larger instrument.
- Distilled Representation of facts from a record.
means a summary of pertinent facts of a larger Instrument (such as a Memorandum or Testimony), or a representation of facts contained within a particular Record, usually for the purpose of certification; and
Accounting Period
- A 365 day period as a standard measure…
- For the preparation of accounts.
means the standard measure and period for the preparation of Accounts expressed as a Ucadian Sun Year consisting of 365 days; or expressed as Gregorian Time being 365 days; and
Act
- Transmission of energy or awareness.
- Into a created form, record or thing.
- The relation of transformed awareness…
- Associated with a form or thing.
- A statute of a legislative body.
means (a) an event in time and dimension based on reason, involving the transmission of energy and awareness relating to some form or thing; and
(b) a statute of a proper legislative body that is not otherwise morally repugnant, perfidious, treasonous, blasphemous or heretical; and
Action
- Recoupment.
- Claim or counterclaim.
- Setoff.
- Proceeding.
- The rights determined by a competent forum.
- Agreed jurisdiction.
means recoupment, Claim, counterclaim, setoff, suit and any other proceeding in that; Rights are determined in a competent forum and agreed Jurisdiction; and
Accept, also Acceptance
- Evidence exists by express consent
- there exists an agreement.
- Or by implied consent a contract.
- Mutual offers were accepted by all parties.
- In the absence of consent, no agreement.
means evidence exists by express Consent in the case of an Agreement or implied Consent in the case of a Contract that an Offer was accepted by all parties. In the absence of any reasonable argument for Consent, an Agreement or Contract cannot be argued as being in legal or lawful effect; and
Acceptance period
- Period commences upon notice given.
- Ending on 10th business day by 5:00 PM.
- Agreed between recipient and sender.
means the period commencing on the date a Notice is given or deemed to have been given and ending at 5.00pm on the 10th Business Day after that date, or that another date as agreed between the Recipient and the Sender in “writing”; and
Acceptor
- The Drawee that accepts a draft.
- A Person who accepts an instrument.
means a Drawee or Person who has accepted a Draft or other instrument; and
Account, also accounts
- A collection of financial books and records.
- Fiduciary relation formed in trust.
- Concerning one or more rights.
- Purpose of banking, commerce and taxes.
- The original record of an event.
- Subsequent statements or summaries.
- The Master Accounts.
- Prepared summaries of the accounts.
A) A collection of financial documents, books and records relating to a distinct fiduciary relation formed in trust between the Body Corporate and other parties concerning one or more rights, use of property for the purpose of banking, commerce, taxation or governance; and
(b) The original record of event as to its creation and validity entered into some formal register of similar types of accounts; and
(c) Any subsequent statement or summary or report from time to time referencing key information concerning its function and performance; and
(d) The summary of all Accounts and Account Relations, also known as the “Master Accounts” of the Body Corporate, Production or Project and prepared and presented in statements, summary and reports consistent with Accounting Standards; and
Accounting standards
- Accounting standards under Ucadian law.
- Consistently applied standards.
- Within agreed Ucadian Jurisdiction.
- Equivalent standards outside Ucadia.
(a) The accounting standards approved under the Ucadian Law and the requirements of that law about the preparation and content of accounts; and
(b) Generally accepted and consistently applied principles and practices within the Jurisdiction of Ucadian Law; and
(c) In relation to a company incorporated outside the Jurisdiction of Ucadian Law, the equivalent accounting standards, principles and practices in the jurisdiction of incorporation; and
Accounting period, also Fiscal Year
- A period of twelve months.
- ending December 31st.
- Jurisdiction of Ucadian Law.
means the period from the time of the formation of the Body Corporate to the following 31 December and then each period of 12 months ending on 31 December in each year in accord with the Jurisdiction of Ucadian Law; and
Advance
- Payment of money
- before consideration or performance
- is due to be returned.
- Per terms of the agreement.
- May be recoupable or non recoupable.
means a payment of money before it is due. An Advance may be recoupable or nonrecoupable; and
Adverse claim
- Lawful action to nullify a claimed interest
- in property possessed or occupied
- by an owner, holder or someone in control
- of the property or asset
- Claimant must establish their rights are violated
- That the holder does not have the right to
- occupy, possess or hold the property or asset.
means that by an Action is commenced to nullify a claimant’s property interest in an Asset and that the claimant must establish that it is a violation of the rights of the claimant for another person to hold, transfer, or deal with the Asset; and
Advocate
- A legal assistant appointed to help
- Who is suitably qualified and competent
- to argue law and administer the affairs
- of the donor who conveyed rights to them.
means a person suitably qualified, competent and capable in proper law, in respect of the Golden Rule of Law, Justice and Due Process; and
Affairs
- Any legal action, suit, claim, proceeding
- Any act, fact, will and testament, oath, office
- Any interest, claim, obligation, duty, right
- Any effort, work, or exertion producing value
- Any matter or business - of any kind; and
- Any binding ritual performed.
Affiliate
- One person in relation to another person
- A donor of rights in relation to a donee
- A delegator of rights in relation to a delegate
- A person, body or association
- etc, etc, etc,
- Directly under the derived control of a superior
means a person, or body or association that is related to another party and is considered to be directly or indirectly controlled or under the control of that party; and
Agent
- One who acts for or in place of another
- One who acts under the authority of…
- the Principle as his Agent
- One who is appointed or vested in office…
- by an owner capable of disposing a right
- Recognized and acknowledged
- As a named beneficiary under
- Ucadian Law and these bylaws
- Possessing non-durable powers of Attorney
- individual authorised to make decisions
- or act with temporary powers of another
- in accord with terms and conditions
- One entrusted with the business of another.
a) Any man, woman or person duly appointed, acknowledged or recognised under these Bylaws as a named Beneficiary, including any Person possessing a nondurable Power of Attorney, or an individual authorised to make decisions or act with temporary powers of another in accord with these terms and conditions; or
(b) One who acts for, or in the place of, another (the Principal), by authority from him in accord with Ucadian Law; or one entrusted with the business of another such as a substitute; or a deputy; or one known as a factor; and
Agentis Juris
- 2nd Person
- An Agent under the control of a Principle
- You, your, yourself.
- An artificial person as a legal fiction.
- A statutory person born of a body of law.
(Lat.) means one having the capacity of a 2nd Person (you, ye, yours, yourself or yourselves) as an artificial Person and Agent of the Principal; and
Alieni Juris
- 3rd Person
- An incompetent at Law. ( Ucadian )
- He, She, It, They, Them, Their(s),
- Themselves
- Without the knowledge, capacity, or skill
- To properly manage their own affairs.
- A legal person as ( In Personum )
- A Ward, Infant, Lunatic…
- Under the control of a…
- Fiduciary or competent administrator.
(Lat.) means one having the capacity of a 3rd Person (he, she, it, they, them, their, theirs or themselves) as a Legal Person “In Personum” and as a Ward, or Lunatic, or Infant under the control of another; and
“Amend” means to change or modify; and
Agreement
Name the six (6) minimum requirements.
- A Bi-Lateral Consensus in writing
- Between two of equal standing
- Of higher mind ( Conceptual Model )
- and lower mind ( Flesh & Instincts )
- demonstrating 6 minimum requirements…
- Consent is expressed, not implied
- Offer
- Valuable Consideration
- Sufficiency
- Terms and conditions
- Full Disclosure
- Acceptance
is a Bilateral Consensus in Writing between two (2) men or women of equal standing clearly demonstrating the minimum requirements of Offer, Valuable Consideration, Sufficiency, Terms, Full Disclosure and Acceptance whereby consent is expressed and not implied.
CONTRACTS
- A Contract is a Unilateral Consensus
- between two (2) unequal parties “persons”,
- that cannot be considered an Agreement.
- A contract can be the resulting product
- of legal entanglements & codependencies.
Annul, also Annulment
- deprive a Thing of its operation
- either retrospectively or
- only as to the future
- upon some Ecclesiastical Authority
- and competent Capacity; and
Application
- A written request to form an agreement.
- A written offer requesting consideration.
- means a written request in Good Faith
- to an Officer or Agent of either party
- to form an Agreement with another party; and
Appropriation
- Act of separating and setting aside
- Part of a Fund
- Prescribing, designating or defining
- the use, purpose or destination
- of the Funds
- To be used and directed by a…
- Procurator,
- Attorney General,
- General Guardian,
- Administrator or
- Solicitor General
means the act of appropriating or setting apart; prescribing the destination of a thing; designating the use or application of a fund by an Officer in a Fiduciary Capacity such as a Procurator, Attorney General, General Guardian, Administrator or Solicitor General &c. of the Foundation (UEFGB) and no other [In Concord with c.f: s.41 of Administration of Estates Act 1925]; and
Apostate, also Apostasy
- disaffiliation, abandonment or renunciation
- between a Member and Ucadian Law;
- or the actions of a Member of a
- valid and legitimate Ucadia Ecclesiastical Body
- or Body Politic,
- to expose their actions as incompetent
- or to willfully declare themselves an
- Incompetent, as Insane or an Idiot or,
- by renouncing their association to Ucadia; and
Argument
- the Process of establishing and validating
- the Proof and Truth of one or more claims
- alleged to be a Fact(s); and
Asset, also Assets
- a right, good, thing, property
- or real property
- that is either owned or controlled by Our Estate
- that is accepted in commerce
- as having value; and
Assignment
- A formal Covenant or Decree
- Or an Instrument defining the Transfer
- of certain Rights
- from an Owner to the Purchaser
- Who accepts a commission as payment
- For performance of obligations
- Under the terms and condition of agreement.
Assignor
- a type of Trustor
- who temporarily and conditionally
- Transfers and Conveys Right of Use
- of some Property or Right
- to another
- for some valuable consideration.
Assign, also Asignor, also Assignee
- those to whom Property is, will, or may be
- lawfully assigned
- whether by conveyance
- devise
- descent
- transfer or
- an act of law.
Attorney-In-Fact, also Attorney General
- a person authorised to act for another
- in financial and legal matters; and
Audit
- a study and forensic review
- of the financial accounts
- transaction history
- and reporting; and
Authentic
- something that is the same as the Original
- or validated as reliable
- and worthy of Trust; and
Authority, also An Authority
- means an exclusive Right,
- being a “Right of Use”
- to do or act in a particular way,
- derived solely from the acceptance and promise
- to perform one or more obligations
- of Office through a proper Oath and Vow
Bank
- A holder of valuable posits or deposits
- under fiduciary obligations
- to manage the assets of another in trust
- being the Body Corporate
- and any person,
- society,
- trust,
- company
- or corporation
- possessing the Right to engage
- in the business of banking.
Bank Account
- any deposit, posit, security, credit
- or other account held with a Bank
- and registers defining the transactions
- of valuable assets or currency
- between parties
- in relation to the account maker as principle.
Bearer
- A man, woman or person,
- In possession of
- A Negotiable instrument
- A certificated title
- or security interest
- with its associated rights
- to redemption, recoupment, claim or set-off
- and associated obligations of performance
- by the one making a valuable offer as seller
- of defined performance increasing the value
- of the interest conveyed by the bearer
- who bought the security under trust agreement.
Bearer Security
- a negotiable Certificated Security
- that entitles the Holder to the Rights
- defined by and under the Security
- as the holders ‘interest’ in the property
- with the right of redemption
- at the maturity date of the agreement
- and also the right to a recoupment claim
- in the event of breach or default
- Who’s rights may also be transferred
- By gift, sale or bargain
- by way of Endorsement
- or delivery to another; and
REDEMPTION
the action of regaining or gaining possession of something in exchange for payment, or clearing a debt.
synonyms: retrieval, recovery, reclamation, repossession, return More
“the redemption of their possessions”
exchange, cashing in, conversion
“the redemption of credit vouchers”
paying off, paying back, discharge, clearing, honoring
“the redemption of the mortgage”
fulfillment, carrying out, discharge, performing, honoring, meeting
“the redemption of his obligations”
archaic
the action of buying one’s freedom.
REDEEM
late Middle English (in the sense ‘buy back’):
from Old French redimer or Latin redimere,
from re(d)- ‘back’ + emere ‘buy.’
Benefice, also Benefices
- a gift granted by Trust
- under Deed and Title
- including both Rights and obligations
- to certain Property
Beneficiary
- is any Person
- who has any present or future interest
- vested or contingent
- in a Trust
- who benefits or receives
- a useful or valuable enjoyment
- or legal advantage in action
- holding priority before others
- in the event of breach
- necessitating a recoupment, claim or set-off
- during a legal action, suit or proceeding
- defined by the Trust instrument as rights
- A Beneficiary, by definition
- is an “interested party”
- in a Trust or Estate
- including any owner or holder of an interest
- by assignment, conveyance or other transfer
Benefit
- a gift offered and elected to be accepted
- and received under trust agreement
- also, an object of value
- or actions creating value
- or a conveyed bundle of rights
- or a reciprocal exchange defined as a…
- commission for performance of obligations
Bilateral Consensus
- the term describing
- the second of three forms
- of concord of Consent
- between the minds of two or more Parties
- concerning one or more Acts
- regarding certain Property or Rights
- involving the Higher Mind
- and therefore also the Lower Mind
- (also equivalent to Mind and Flesh)
- hence bilateral; and
Bill of Lading
- a Document evidencing
- the Receipt of Goods for shipment
- issued by a Person
- engaged in the business of transporting
- or forwarding goods
Body Politic and Corporate
- the Ucadia Ecclesia Foundation
- is the united and singular collection
- of Property, Rights and Uses
- of a Trust created by statute,
- also known as the Trust Corpus.
- More commonly,
- a Body Corporate is known as a Corporation
- or a Person born as a legal statutory person.
Bona Fide
- Good Trust
- Good Faith
- (Lat.) means with good faith;
- An act performed honestly, openly, sincerely,
- without deceit, ill will or fraud
- ( See also “Good Faith” )
Bond
- an instrument showing indebtedness
- A form of Covenant or Decree
- containing at least one penalty clause
- and one defeasance condition clause
- whereby the Obligor (person bound)
- binds himself to pay
- a certain sum of interest (coupon)
- and repay any principal money (penal sum)
- at a maturity date,
- subject to any other binding conditions
- of surety and performance
Book Entry
- a Bond or similar Security for that;
- no Certificate is issued,
- but ownership is recorded
- in a valid Register, Ledger or Roll
Buyer
- a Person who makes ( engages in )
- one (1) or more purchases
- from a Seller of Goods or Services
Bylaws, also Byelaws
- the Bylaws of the Body Politic & Corporate
- Defining the rights and obligations of
- Ecclesiastical offices and commissions; and
- Governing Offices and Commissions; and
- Agents, Agencies and Contractors
- as originally assented…
- or as altered from time to time
- by Special Resolution
Cause of Action
- the facts and evidence
- that may give a person the right
- to judicial relief
- within a competent forum of law.
Cancellation
- giving notice
- of a desire to cease activity
- or performance
- towards the completion of a contract.
Certificate of deposit - Certificate of Posit
- Is an Instrument
- containing an acknowledgement
- by a Bank
- that a sum of money has been received
- by the Bank
- and a promise by the Bank
- to repay the sum of money.
- A certificate of deposit is a note
- of the Bank baring interest
- and due on a specific date.
Certificate of Registration
- Is an official confirmation
- through the issuance of a certificate
- that some right, claim, property
- has been duly registered
- with the Body Corporate.
Certificated Security
- Is a Security
- that is represented by a certificate
- defining the holders interest in the matter
- associated with a bundle of rights
- for judicial relief
- in the event of breach, default,
- or non-performance.
Cheque, also Check
- Is a Draft
- as a written order to pay a specified sum
- payable on demand
- and drawn on a Bank Account,
- or cashier’s cheque,
- or tellers cheque,
- or commercial network instrument
- such as a “money order”
Charge, also Land Charge
- means a rent, annuity or principal moneys
- payable by installments or lump sum,
- by the one who is charged with the debt,
- to the chargee, who extended credit,
- with or without interest charged,
- but not by way of a deed,
- charged upon land,
- under the provisions of any lawful and moral statute,
- for securing to the person who is owed rent,
- either the moneys spent by the chargee,
- or the costs, charges, expenses incurred by him
- under such statutes,
- or the moneys advanced by the chargee,
- for repaying the moneys spent,
- or the costs, charges and expenses
- incurred by another person
- under the authority of a lawful and moral Act.
Charge by way of mortgage
means a Mortgage created by Charge; and
Charge by way of mortgage
means a Chargee by way of Legal Mortgage; and
Classification
- means the correct regulation
- of the Body Corporate
- for the purpose of Recording Information
- internally and with nonUcadian entities.
Clean Hands
- means a party is forbidden
- by all competent forms of Law
- from seeking to derive an advantage
- in such a Forum of Law
- from having committed one or more wrongs
- or that a party is disqualified
- from bringing a matter
- concerning breach of trust or honesty or duty,
- if they the are also accused of a similar act;
- or that a party possessing an interest in a matter
- cannot then sit as an arbitrator or judge,
- unless both parties waive their right of objection; and
Clearing House
- means a financial institution
- duly registered and recognised
- by the laws of the Jurisdiction
- in providing clearing and settlement services
- for security and derivative transactions
- of the Body Corporate; and
Claimant
- means a person seeking recognition
- of rights of Property or Assets
Clerk, also Cleric
- an administrative ecclesiastical assistant
- to an Apostolic Mendicant Minister
Claim
- any formal demand or cause of action
- for ownership, compensation or damages
- where certain key elements are alleged
- to be of sufficient weight to justify a Right,
- either in favour or against any Asset(s)
- or an obligation of an Estate, Trust or subsidiary,
- of a Person or Body Corporate.
Codicil
- means a written supplement,
- addendum or schedule to a Will
- that amends the original Document
- and must conform to the same requirements
- in the validation of the Will; and
Commission
- means the fees claimed by an Agent
- or duly authorised and appointed
- representative; and
Communication
- means the concept or state
- of exchanging meaningful information
- between entities.
- It is also a message
- and the essential information transferred
- in the act of communication.
Competent, also Competency
- means having sufficient skill,
- knowledge, qualifications, ability,
- reason, discernment or authority
- to perform a position of trust or office.
- A Competent Person by default
- is assumed to possess a Sound Mind
- and sufficient Capacity of Authority
- to perform a particular position of trust or office
- such as an Attorney General, Solicitor General
- or Procurator General.
Compos Mentis
- means being of Sound Mind
- and not Mentally Unwell (Insane)
Concord
- means a harmonious state in general
- and of the congruity of parts
- with one another and with the whole;
- and also a meeting of the minds.
Conflict of Interest
_ means any party to an act
- that possesses sufficient financial interest,
- or personal interest
- with another party associated with the act,
- sufficient to imply the potential for Bias.
Consensus
- means a term describing the Concord
- of Consent between different Parties
- concerning one (1) or more acts
- regarding certain Property or Rights.
Consent, also Consented
- means the expressed intent,
- concord
- and “meeting of minds”
- to something proposed
- and cannot be implied by silence.
Consecrated Person
- means a Person
- declared and set apart as sacred.
Conservator
- means a Person appointed by Court
- or the General Executor and Guardian
- to manage the affairs of another
- in accordance with this Instrument.
Consideration
- means the presentation of value
- given as a pledge
- and the reason or inducement
- for a party to enter into an Agreement.
- The existence of some clear Consideration
- is a necessary element
- for an Agreement to be binding.
Consideration in Money
- (a) a capital sum of money or a rent; or
- (b) Land being freehold or leasehold
- for any term of years
- whereof not less than sixty years shall be unexpired;
- (c) any easement, right or privilege
- over or in relation to Land, or part thereof; or
- (d) the benefit of any restrictive covenant or condition; or
- (e) the release of any Land,
- or any part thereof,
- from any easement, right or privilege,
- including a right of preemption
- or from the burden of any restrictive covenant
- or condition affecting the same.
Contract
- means a Unilateral Consensus
- between two (2) Parties
- of unequal standing
- clearly demonstrating the minimum requirements
- of Offer,
- Valuable Consideration,
- Sufficiency,
- Terms,
- Full Disclosure and
- Acceptance
- whereby consent may or may not be implied.
Convey
- means to pass or transmit the title
- to property from one to another;
- to transfer property or the title to property
- by deed or instrument under Seal.
- Used popularly in sense of
- “assign,”
- “sale,”
- “transfer”
Conveyance
- means a transfer of legal title to land,
- lease, assent, vesting declaration, vesting instrument, disclaimer, mortgage, release
- and every other assurance of property of,
- or an interest therein by any instrument,
- except a will
- and “convey” has a corresponding meaning.
Copy Right Infringement
means violation of Copyright through unauthorised copying or use of a work or other subject matter under Copyright; and
Court
means the Supreme Court of the Body Corporate; and any Competent Forum of the one true, Apostolic Universal Ecclesia of One Christ; and any lesser lawful, moral and Competent Christian Forum of Law; and
Creditor ( 3 Types )
means a Party to whom a financial, debt, obligation or performance is due whereby the material terms of the agreement have changed concerning the party owing the obligation. There are three (3) types of Creditor being unsecured, secured and lien:
(a) An unsecured creditor is a Party possessing no legal advantage over claiming part or all of the remaining assets of an Estate, Trust or Subsidiary; and
(b) A secured creditor is a Party possessing by court order, formal Instrument or other official device a legal advantage in claiming priority to be paid from the remaining assets of an Estate, Trust or subsidiary above all other types of creditors except lien creditors; and
(c) A lien creditor is a Party possessing by court order, formal Instrument or other official device a lien in claiming highest priority to be paid from the remaining assets of an Estate, Trust or subsidiary; and
Curator
means a Trustee and/ or Guardian duly appointed by Will and Testament (Voluntatem et Testamentum) that is empowered with the Cure of Souls, and is charged with the duty and care of the affairs of an Estate, Trust or subsidiary; managing the property and legal affairs and interests of a person incumbent or beneficiary; emancipated or interdicted; and
Currency
means Private Money that by authority of some legislative body or sovereign power permits such Currency to be circulated as if equivalent to Public Money; and
Debt, also Debts
means either
- a (binding promise) as a solemn obligation under agreement,
or. .. - a (right of action) upon any delinquency for the payment of a sum of money due for Goods sold or…
- a (payment of penalty) upon such default to remedy performance; and
Debtor
means
- a type of Trustor and Donor
- as one who gives an unconditional written promise and certain property as surety in trust to repay a fixed sum of money known as the “debt”
- to a Creditor in the event of any default and dishonour by the assured party; and
Deed
means
- a written lawful and legal Instrument
- that bestows or surrenders a right or certain rights of the donor to the donee
- with proof and includes this present instrument in trust and good faith
- In Concord with…
c.f: s.53 of the Law of Property Act 1925];
As Follows…
53 Instruments required to be in writing.
(1) Subject to the provision hereinafter contained with respect to the creation of interests in land by parol — “oral testimony”
(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;
(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will;
(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will.
(2) This section does not affect the creation or operation of resulting, implied or constructive trusts.
( Parole - Definition )
an oral statement; word of mouth (now only in the phrase by parol) adjective. (of a contract, lease, etc) made orally or in writing but not under seal. expressed or given by word of mouth: parol evidence.
Default
means a failure; and specifically, the omission or failure to perform a legal or contractual duty, or observe a promise made under warranty or discharge an obligation; and
Defendant
means a Party charged in a Court action of claim, counterclaim, crossClaim, or thirdparty Claim; and
Deferred Payment
means when a party accepts some or all of their compensation later on some promise or conditions; and
“Defamation”, also “Defamatory”, also “Defame”
means any false or deliberately misrepresented statement designed to harm, or injure the reputation of Ucadia or the Body Corporate or an Officer or Member of the Body Corporate; and
Delegator
means a type of Trustor who temporarily and conditionally Transfers and Conveys Right of Use of some Property or Right to another without any valuable consideration; and
Delivery
means with respect to an Instrument, document of title, or chattel paper, means voluntary transfer of possession; and
Delusion
means a false, unshakable belief and trust in something or someone that is contrary to Fact; and inconsistent with Ucadia Law and the present Bylaws; and persistently adhered to and followed in spite of Authentic Evidence that proves such beliefs and trust to be false; and
Heir - Inheritance
In modern law, the terms inheritance and heir refer exclusively to succession to property by descent from a deceased dying intestate. Takers in property succeeded to under a will are termed generally beneficiaries, and specifically devisees for real property, bequestees for personal property, or legatees
Devisee
A person to whom real estate is given is called a devisee ; the receiver of personal property a legatee. Putnam’s Handy Law Book for the Layman Albert Sidney Bolles. A person benefiting under a will is a legatee of money, or a devisee of land, and not an heir to either.
Devise
to assign or transmit (property) by will.
the act of disposing of property, especially real property, by will.
a will or clause in a will disposing of property, especially real property.
the property so disposed of.
Beneficiary
A beneficiary (also, in trust law, cestui que use) in the broadest sense is a natural person or other legal entity who receives money or other benefits from a benefactor. For example, the beneficiary of a life insurance policy is the person who receives the payment of the amount of insurance after the death of the insured.
Cestui Que Use ( Vie )
The cestui que use is the person for whose benefit the trust is created. The cestui que trust is the person entitled to an equitable, as opposed to a legal, estate. Thus, if land is granted to the use of A in trust for B, A is cestui que trust, and B trustee, or use.
Cestui Que
Cestui que (/ˈsɛstwi ˈkeɪ/; also cestuy que, “cestui a que”) is a shortened version of cestui a que use le feoffment fuit fait, literally, “The person for whose use the feoffment was made.” It is a Law French phrase of medieval English invention, which appears in the legal phrases cestui que trust, cestui que use, or cestui que vie.
Feoffment
In the Middle Ages, especially under the European feudal system, feoffment or enfeoffment was the deed by which a person was given land in exchange for a pledge of service. This mechanism was later used to avoid restrictions on the passage of title in land by a system in which a landowner would give land to one person for the use of another. The common law of estates in land grew from this concept.
Estate In Land
An estate in land is an interest in real property that is or may become possessory.
In the legal systems of almost every country, the ultimate true “owner” of all land is the sovereign, which for a republic is the whole people of a society[citation needed], which with sovereign, exclusive dominion over a well-defined tract of land, may be called a “state”. Private parties own not the underlying land, but claims on parcels of land, which taken together define the estate for that parcel. This superior ownership is the basis for taking the land through eminent domain. However, the claims that define the estate are themselves personal property.
This should be distinguished from an “estate” as used in reference to an area of land, and “estate” as used to refer to property in general.
In property law, the rights and interests associated with an estate in land may be conceptually understood as a “bundle of rights” because of the potential for different parties having different interests in the same real property.
Bundle Of Rights
The bundle of rights (aka “bundle of sticks”) is a metaphor to explain the complexities of property ownership.[1] Law school professors of introductory property law courses frequently use this conceptualization to describe “full” property ownership as a partition of various entitlements of different stakeholders.
each stick represents an individual right
Any property owner possesses a set of “sticks” related directly to the land.
property can simultaneously be “owned” by multiple parties
the idea of property entailed more the owner’s dominion over a thing, placing restrictions on others from “messing” with the owner’s property. “Bundle of rights,” however, implies rules specifying, proscribing, or authorizing actions on the part of the owner.
For example, perfection of a mechanic’s lien]] takes some, but not all, rights out of the bundle held by the owner. Extinguishing that lien returns those rights or “sticks” to the bundle held by the owner.
Fee Simple Absolute
In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership.
It is a way that real estate may be owned in common law countries, and is the highest possible ownership interest that can be held in real property.
Allodial title is reserved to governments under a civil law structure.
The rights of the fee simple owner are limited by government powers of taxation, compulsory purchase, police power, and escheat, and it could also be limited further by certain encumbrances or conditions in the deed, such as, for example, a condition that required the land to be used as a public park, with a reversion interest in the grantor if the condition fails; this is a fee simple conditional.
Reversion
A reversion in property law is a future interest that is retained by the grantor after the conveyance of an estate of a lesser quantum that he has (such as the owner of a fee simple granting a life estate or a leasehold estate). Once the lesser estate comes to an end (the lease expires or the life estate tenant dies), the property automatically reverts (hence reversion) back to the grantor.
Bail - Bailment - Bailor - Bailee
Bailment describes a legal relationship in common law where physical possession of personal property, or a chattel, is transferred from one person (the “bailor”) to another person (the “bailee”) who subsequently has possession of the property. It arises when a person gives property to someone else for safekeeping, and is a cause of action independent of contract or tort.
Contract
A contract is a voluntary arrangement between two or more parties that is enforceable by law as a binding legal agreement. Contract is a branch of the law of obligations in jurisdictions of the civil law tradition. Contract law concerns the rights and duties that arise from agreements.[1]
A contract arises when the parties agree that there is an agreement.
Formation of a contract generally requires an offer, acceptance, consideration, and a mutual intent to be bound.
Each party to a contract must have capacity to enter the agreement. Minors, intoxicated persons, and those under a mental affliction may have insufficient capacity to enter a contract. Some types of contracts may require formalities, such as a memorialization in writing.
Meeting of Minds
Meeting of the minds (also referred to as mutual agreement, mutual assent or consensus ad idem) is a phrase in contract law used to describe the intentions of the parties forming the contract. In particular it refers to the situation where there is a common understanding in the formation of the contract. Formation of a contract is initiated with a proposal or offer.[1] This condition or element is often considered a requirement to the formation of a contract.
Assent
agreement, act of agreeing
I will give this act my assent.
To agree, to give approval.
Agree - Agreement
Old French agreer (“to accept or receive kindly”), from a gré (“favorably”), from Latin ad (“to”) + gratum (“pleasing”).
Bequest
A bequest is property given by will.[1] Historically, bequest was used for personal property given by will and devise for real property.[2] Today, the two words are used interchangeably.
The word bequeath is a verb form for the act of making a bequest.
Bequest come from Old English becwethan, “to declare or express in words” — cf. “quoth”.
Will & Testament
A will or testament is a legal document by which a person, the testator, expresses his or her wishes as to how his or her property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution. For the devolution of property not disposed of by will, see inheritance and intestacy.
Though it has at times been thought that a “will” was historically limited to real property while “testament” applies only to dispositions of personal property (thus giving rise to the popular title of the document as “Last Will and Testament”), the historical records show that the terms have been used interchangeably.[1] Thus, the word “will” validly applies to both personal and real property. A will may also create a testamentary trust that is effective only after the death of the testator.
Intestacy
Intestacy is the condition of the estate of a person who dies without having made a valid will or other binding declaration. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the estate; the remaining estate forms the “intestate estate”.
Intestacy law, also referred to as the law of descent and distribution, refers to the body of law (statutory and case law) that determines who is entitled to the property from the estate under the rules of inheritance.
Operation of Law
The phrase “by operation of law” is a legal term that indicates that a right or liability has been created for a party, irrespective of the intent of that party, because it is dictated by existing legal principles. For example, if a person dies without a will, his or her heirs are determined by operation of law. Similarly, if a person marries or has a child after his or her will has been executed, the law writes this pretermitted spouse or pretermitted heir into the will if no provision for this situation was specifically included. Adverse possession, in which title to land passes because non-owners have occupied it for a certain period of time, is another important right that vests by operation of law.
Adverse Possession
Adverse possession is a situation when a person who does not have legal title to land (or real property) occupies the land without the permission of the legal owner. The permission of the owner may be reflected in the entering into a lease or granting a licence, typically associated with the payment of some rent. The laws of many countries allow the adverse possessor (in law also called the disseisor) to acquire title to the land after a prescribed statutory period,[1] which varies between jurisdictions, and depend on the type of land and other circumstances. The laws of most jurisdictions do not permit claims of adverse possession against public land. Squatting is a form of adverse possession. The adverse possessor is usually required to prove non-permissive use which is actual, open and notorious, exclusive, adverse, and continuous for the statutory period.[2][Note 1] If a claim to title by adverse possession is successful, title is acquired without compensation.
Title ( Property )
In property law, a title is a bundle of rights in a piece of property in which a party may own either a legal interest or equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document, such as a deed, that serves as evidence of ownership. Conveyance of the document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases, both possession and title may be transferred independently of each other. For real property, land registration and recording provide public notice of ownership information.
Hypothication
Hypothecation is the practice where (usually through a letter of hypothecation) a debtor pledges collateral to secure a debt or as a condition precedent to the debt, or a third party pledges collateral for the debtor. A common example occurs when a debtor enters into a mortgage agreement, in which the debtor’s house becomes collateral until the mortgage loan is paid off.
The debtor retains ownership of the collateral, but the creditor has the right to seize ownership if the debtor defaults.
The main purpose of hypothecation is to mitigate the creditor’s credit risk. If the debtor cannot pay, the creditor possesses the collateral and therefore can claim its ownership, sell it and thus compensate the lacking cash inflows. In a default of the obligor without previous hypothecation, the creditor cannot be sure that it can seize sufficient assets of the debtor. Because hypothecation makes it easier to get the debt and potentially decreases its price; the debtor wants to hypothecate as much debt as possible - but the isolation of ‘good assets’ for the collateral worsens the quality of the rest of the debtor’s balance sheet and thus its credit quality.
Lien
lien (/ˈliːn/ or /ˈliːən/)[Note 1] is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the lienee[3] and the person who has the benefit of the lien is referred to as the lienor[4] or lien holder.
The etymological root is Anglo-French lien, loyen “bond”, “restraint”, from Latin ligamen, from ligare “to bind”.
Encumbrance
Encumbrance: charge upon or claim against land arising out of private grant or a contract.
An encumbrance is a right to, interest in, or legal liability on real property that does not prohibit passing title to the property but that diminishes its value.[1] Encumbrances can be classified in several ways. They may be financial (ex: liens) or non-financial (ex: easements, private restrictions). Alternatively, they may be divided into those that affect title (ex: lien, legal or equitable charge) or those that affect the use or physical condition of the encumbered property (ex: restrictions, easements, encroachments).[2] Encumbrances include security interests, liens, servitudes (e.g. easements, wayleaves, real covenants, profits a prendre), leases, restrictions, encroachments, and air and subsurface rights.
Charging Order
A charging order, in English law, is an order obtained from a court or judge by a judgment creditor, by which the property of the judgment debtor in any stocks or funds or land stands charged with the payment of the amount for which judgment shall have been recovered, with interest and costs
The charging order limits the creditor of a debtor-partner or a debtor-member to the debtor’s share of distributions, without conferring on the creditor any voting or management rights.
Before the advent of the charging order, a creditor pursuing a partner in a partnership was able to obtain from the court a writ of execution directly against the partnership’s assets, which led to the seizure of such assets by the sheriff. This result was possible because the partnership itself was not treated as a juridical person, but simply as an aggregate of its partners. The seizure of partnership assets was usually carried out by the sheriff, who would go down to the partnership’s place of business and shut it down. That caused the non-debtor partners to suffer financial losses, sometimes on par with the debtor partner, and the process was considered to be entirely “clumsy.”
Writ of Execution
A writ of execution (also known as an execution) is a court order granted to put in force a judgment of possession obtained by a plaintiff from a court.[1] When issuing a writ of execution, a court typically will order a sheriff or other similar official to take possession of property owned by a judgment debtor. Such property will often then be sold in a sheriff’s sale and the proceeds remunerated to the plaintiff in partial or full satisfaction of the judgment. It is generally considered preferable for the sheriff simply to take possession of money from the defendant’s bank account. If the judgment debtor owns real property, the judgment creditor can record the execution to “freeze” the title until the execution is satisfied.
Property
The word property, in everyday usage, refers to an object (or objects) owned by a person — a car, a book, or a cellphone — and the relationship the person has to it. In law, the concept acquires a more nuanced rendering. Factors to consider include the nature of the object, the relationship between the person and the object, the relationship between a number of people in relation to the object, and how the object is regarded within the prevailing political system. Most broadly and concisely, property in the legal sense refers to the rights of people in or over certain objects or things.[2]
Chattel
noun
- Law.. Often, chattels. a movable article of personal property.
- Often, chattels. any article of tangible property other than land, buildings, and other things annexed to land.
- A SLAVE
/ˈtʃætəl/ noun 1. (often pl) ( property law) chattel personal, an item of movable personal property, such as furniture, domestic animals, etc chattel real, an interest in land less than a freehold, such as a lease 2. goods and chattels, personal property
Appanage
Late Latin *appanaticum, from appanare or adpanare ‘to give bread’ (panis), a pars pro toto for food and other necessities, hence for a “subsistence” income, notably in kind, as from assigned land.
An appanage or apanage (pronounced /ˈæpənɪdʒ/) or French: apanage (French pronunciation: [a.pa.naʒ]) is the grant of an estate, title, office, or other thing of value to a younger male child of a sovereign, who would otherwise have no inheritance under the system of primogeniture. It was common in much of Europe.
Estate ( Law )
An estate is the net worth of a person at any point in time alive or dead. It is the sum of a person’s assets – legal rights, interests and entitlements to property of any kind – less all liabilities at that time.
A person’s estate consists of all assets or property of any kind available for distribution to creditors.
In land law, the term “estate” is a remnant of the English feudal system, which created a complex hierarchy of estates and interests in land. The allodial or fee simple interest is the most complete ownership that one can have of property in the common law system.
Defeasible Estate
A defeasible estate is created when a grantor transfers land conditionally. Upon the happening of the event or condition stated by the grantor, the transfer may be void or at least subject to annulment. (An estate not subject to such conditions is called an indefeasible estate.) Historically, the common law has frowned on the use of defeasible estates as it interferes with the owners’ enjoyment of their property and as such has made it difficult to create a valid future interest. Unless a defeasible estate is clearly intended, modern courts will construe the language against this type of estate. Three types of defeasible estates are the fee simple determinable, fee simple subject to an executory limitation or interest, and the fee simple subject to a condition subsequent.
Condition Subsequent
A condition subsequent is an event or state of affairs that brings an end to something else. A condition subsequent is often used in a legal context as a marker bringing an end to one’s legal rights or duties. A condition subsequent may be either an event or a state of affairs that must either (1) occur or (2) fail to continue to occur.
A right in land may be cut off by a condition subsequent. When land rights are subject to a condition subsequent, this creates a defeasable fee called a Fee simple subject to condition subsequent.
In such a fee, the future interest is called a “right of reentry” or “right of entry.” There, the fee simple subject to condition subsequent does not end automatically upon the happening of the condition, but if the specified future event occurs, the grantor has a right to retake his property (as opposed to it reverting to him automatically). Again, the right of entry is not automatic, but rather must be exercised to terminate the fee simple subject to condition subsequent. To exercise right of entry, the holder must take substantial steps to recover possession and title, for example, by filing a lawsuit.
One of the languages used to create a fee simple subject to condition subsequent and a right of entry is “to A, but if A sells alcohol on the land, then grantor has the right of reentry.”
Common uses include language such as “may”, “but if”, “however”, or “provided that…”
Fee simple subject to a condition subsequent
A fee simple subject to a condition subsequent is created when the words of a grant support the conclusion that the grantor intends to convey a fee simple absolute but has attached a condition to the grant so that if a specified future event happens the grantor will get its fee simple absolute back, provided that the grantor exercises his right of entry (or power of termination). Thus, a fee simple subject to condition subsequent does not end automatically upon the happening of the condition. The future interest is called a “right of reentry” or “right of entry,” and the property only reverts to the original grantor if he exercises this right.
The right of entry is not automatic, but rather must be exercised to terminate the fee simple subject to condition subsequent. To exercise right of entry, the holder must take substantial steps to recover possession and title, for example, by filing a lawsuit. Physical entry is not required, but the holder must do more than just proclaim an intent to take back.
One of the languages used to create a fee simple subject to condition subsequent and a right of entry is “to A, but if A sells alcohol on the land, then grantor has the right of entry (or power of termination).”
Common uses include language such as “may”, “but if”, “however”, or “provided that…”
Fee simple subject to an executory limitation
A fee simple subject to an executory limitation is an estate that ends when a specific condition is met and then transfers to a third party. The interest will not revert to the grantor. If the condition is met, the grantee loses the interest and the third party gains it automatically.[2]
Example:
O grants Blackacre to A and A’s heir; but if A ever accepts a candy bar from C, then to B and B’s heirs.
Here, O is the original owner. She grants A a fee simple subject to the subsequent condition that he doesn’t accept a candy bar from C. But unlike a fee simple subject to a condition subsequent, Blackacre goes to a third party (B) instead of the grantor (O) if the condition is met. Also unlike a fee simple subject to a condition subsequent, B then automatically gains the interest in Blackacre and does not only have a mere right to sue for re-entry.
What would happen if the property were conveyed? Let’s say A sold Blackacre to D. If A afterwards accepted an offer for a candy bar from C, Blackacre automatically goes to B. But if A died without ever accepting a candy bar from C, the condition could not possibly be met. D would then have a fee simple absolute.
Right of Re-Entry
Right of entry refers to one’s right to take or resume possession of land, or the right of a person to go onto another’s real property without committing trespass. It also refers to a grantor’s power to retake real estate from a grantee in the case of a fee simple subject to condition subsequent.
Ius In Re ( Jus in Rem )
Ius in re, or jus in re, under civil law, more commonly referred to as a real right or right in rem, is a right in property, known as an interest under common law. A real right vests in a person with respect to property, inherent in his relation to it, and is good against the world (erga omnes). The primary real right is ownership (dominium) (freehold, leasehold, commonhold). Whether possession (possessio) is recognized as a real right, or merely as a source of certain powers and actions, depends on the legal system at hand. Subordinate or limited real rights generally refer to encumbrances, rights of use and security interests. The term right in rem is derived from the action given to its holder, an actio in rem. In Latin grammar the action against the thing demands a fourth case. The underlying right itself, Ius in re, has a fifth case, as the right rests on, or burdens, the thing. By mistake the common law terminology now uses the fourth case for describing the right itself. Compare jus ad rem.
Ius Ad Re ( Jus Ad Rem )
Jus ad rem is a Latin term of the civil law, meaning “a right to a thing:” that is, a right exercisable by one person over a particular article of property in virtue of a contract or obligation incurred by another person in respect to it and which is enforceable only against or through such other person. It is thus distinguished from jus in re which is a complete and absolute dominion over a thing available against all persons.
The disposition of contemporary civil law jurists is to use the term jus ad rem as descriptive of a right without possession, and jus in re as descriptive of a right accompanied by possession. Or, in a somewhat wider sense, the former denotes an inchoate or incomplete right to a thing; the latter, a complete and perfect right to a thing.[1][2]
In canon law jus ad rem is a right to a thing. An inchoate and imperfect right, such as is gained by nomination and institution; as distinguished from jus in re, or complete and full right, such as is acquired by corporal possession.[3]
Jus in Rem Propria
jus in re propria – the right of enjoyment (i.e., the right to use the property in any legal manner) which is incident to full ownership or property, and is often used to denote the full ownership or property itself.
Jus in Re Aliena
jus in re aliena, or encumbrance, which includes servitudes, security interests, real burdens, land charge, rentcharge, emphyteusis, right of first refusal.
Ius ( Jus )
Latin - Ius French - Droit German - Recht English - Right Spanish - Derecho
Ius or Jus (Latin, plural iura)[2] in ancient Rome was a right to which a citizen (civis) was entitled by virtue of his citizenship (civitas). The iura were specified by laws, so ius sometimes meant law. As one went to the law courts to sue for one’s rights, ius also meant justice and the place where justice was sought.
Ius in ancient Roman law had two principal meanings, which are still reflected in French droit, German Recht, English right and Spanish derecho.[4] Ferdinand Mackeldy, 19th-century jurist, analyzed them into two principles: ius is the law, a set of compulsory rules (Jus est norma agendi, “law is a rule of conduct”), which he called objective or positive law, and a set of possibilities to act (Jus est facultas agendi, “law is a license to act”), which he called subjective law, or duties.
A bronze tablet in the Capitoline Museums recording a law of the Senate now termed the “Lex de Imperio Vespasiani,” establishing Vespasian in his imperial munus. Section VI states that “whatsoever he shall think likely to promote the welfare of the state … he shall have full right (ius) and authority (potestas) to do.”
Ius was defined by the jurists Publius Juventius Celsus and Julius Paulus Prudentissimus as the aequum et bonum, “the just and the fair”, or justice.[6] Jurisprudence was the art of bringing it about through application of the laws; thus ius was law in the abstract, as in the English usage of the term “the law”. Iura were “the whole of laws” (iura populi Romani), not a list of all the laws, but the very principle of legality, which might be applied through this law or by the magistrates and lawyers of Rome through disputation in the law courts. Ius might be something less than the whole body of law when special fields were designated by an adjective, such as ius publicum, “public law,” as opposed to private law.
The actual laws (leges), or written statutes, were only the specific tools through which ius was applied. Ius was the law in its broadest sense or its ideal state, above and unaffected by the contingent decrees that the state happened to enact—hence the distinction between the English terms justice and legislation. This division persists through various regimes of civil law such as in the Fourteenth Amendment of the United States Constitution, which distinguishes “due process of law” (singular, as in ius) from “equal protection of the laws” (plural, as in leges).
Ius as the law was generally the domain of Roman aristocrats, from whose ranks the magistrates were chosen and who often defended clients in court. On a more practical basis, the populace of Rome daily encountered the primary meaning of ius. They understood that they had rights. Furthermore, these rights could be named and enumerated in formulae beginning with the word ius followed by a descriptive phrase, most often in the genitive case: “the right of ….”
Black defines ius in the sense of a right as “a power, privilege, faculty, or demand inherent in one person and incident upon another.”[4] This power, or potestas, was a license governing behavior between persons granted by the constitution. It determined what one citizen or group of citizens could or could not do regarding another; i.e., potestas is to be translated as authority, which the possession of iura gave to individuals. One might act socially sui iuris, on one’s own authority, asserting one’s own right, or on behalf of another, alieni iuris, in response to a demand to serve his right by being under his authority.
Jurisdiction in Rem
In rem jurisdiction (Latin, “power about or against ‘the thing’“[1]) is a legal term describing the power a court may exercise over property (either real or personal) or a “status” against a person over whom the court does not have in personam jurisdiction. Jurisdiction in rem assumes the property or status is the primary object of the action, rather than personal liabilities not necessarily associated with the property (quasi in rem jurisdiction).
In Personam Jurisdiction
In personam is a Latin phrase meaning “directed toward a particular person”. In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint to give the court jurisdiction to try the case, and the judgment applies to that person and is called an “in personam judgment”.
In personam is distinguished from in rem, which applies to property or “all the world” instead of a specific person. This technical distinction is important to determine where to file a lawsuit and how to serve a defendant. In personam means that a judgment can be enforceable against the person wherever he/she is. On the other hand, if the lawsuit is to determine title to property (in rem) then the action must be filed where the property exists and is only enforceable there.[1]
Jurisdiction
Jurisdiction (from the Latin ius, iuris meaning “law” and dicere meaning “to speak”) is the practical authority granted to a legal body to administer justice within a defined area of responsibility, e.g., Michigan tax law. In federations like the U.S., areas of jurisdiction apply to local, state, and federal levels; e.g. the court has jurisdiction to apply federal law.
Colloquially it is used to refer to the geographical area to which such authority applies, e.g. the court has jurisdiction over all of Colorado. The legal term refers only to the granted authority, not to a geographical area.
Jurisdiction draws its substance from public international law, conflict of laws, constitutional law, and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of its native society by means of thinking.
DICERE
From Latin dīcere, present active infinitive of dīcō.
Verb
dicere = to say
DICO
logy 1 Edit
From Proto-Italic *deikō, from Proto-Indo-European *déyḱti (“to show, point out”). The perfect forms are derivated from Proto-Indo-European *dḗyḱst.
Cognates include Oscan 𐌃𐌄𐌝𐌊𐌖𐌌 (deíkum, “to show, point out”), Sanskrit दिशति (diśáti), Ancient Greek δείκνυμι (deíknumi) and Old English tǣċan (English teach).
Verb Edit
dīcō (present infinitive dīcere, perfect active dīxī, supine dictum); third conjugation, irregular short imperative
I say, utter; mention; talk, speak.
Salutem dicit.
He says a greeting.
He says hi.
405 CE, Jerome, Vulgate Genesis.1.3
dixitque Deus fiat lux et facta est lux
And God said: Be light made. And light was made.
I declare, state.
I affirm, assert (positively).
I tell.
c. 254–184 BCE, Plautus, Captivi ("The Captives"), 623, (English and Latin text)
Eho dic mihi, quis illic igitur est?
Hey? Tell me, who is he then?
I appoint, name (to an office).
I call, name.
(law, followed by ad) I plead (before).
I speak in reference to, refer to.
Inflection
Conflict of Laws
Conflict of laws or private international law (both terms are used interchangeably)[1] concerns relations across different legal jurisdictions between persons, and sometimes also companies, corporations and other legal entities.
Courts faced with a choice of law issue have a two-stage process:
the court will apply the law of the forum (lex fori) to all procedural matters (including, self-evidently, the choice of law rules); and
it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or residence (lex domicilii)[domicilium in Latin means home or residence and see at ‘European Harmonization Provisions’:”The concept of habitual residence is the civil law equivalent of the common law test of lex domicilii”.] will define legal status and capacity, the law of the state in which land is situated (lex situs) will be applied to determine all questions of title, the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice.[4]
Lex Fori
Lex fori (Latin for the laws of a forum) is a legal term used in the conflict of laws used to refer to the laws of the jurisdiction in which a legal action is brought.[1] When a court decides that it should, by reason of the principles of conflict of law, resolve a given legal dispute by reference to the laws of another jurisdiction, the lex causae, the lex fori still govern procedural matters.[2]
Lex Patriae
The term lex patriae is Latin for the law of the fatherland (in modern usage, nationality law) in the conflict of laws which is the system of public law applied to any lawsuit where there is a choice to be made between several possibly relevant laws and a different result will be achieved depending on which law is selected.
Lex Domicilii
The lex domicilii is the Latin term for “law of the domicile” in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a “foreign” law element where a difference in result will occur depending on which laws are applied.
When a case comes before a court and all the main features of the case are local, the court will apply the lex fori, the prevailing municipal law, to decide the case. But if there are “foreign” elements to the case, the forum court may be obliged under the conflict of laws system to consider:
whether the forum court has jurisdiction to hear the case (see the problem of forum shopping);
it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legal classes; and
then apply the choice of law rules to decide the lex causae, i.e. which law is to be applied to each class.
Lex Situs - ( Lex Loci Rei Sitae )
Lex loci rei sitae (Latin for “law of the place where the property is situated”), or simply lex situs, is the doctrine that the law governing the transfer of title to property is dependent upon and varies with the location of the property, for the purposes of the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a “foreign” law element if a difference in result will occur, depending on which laws are applied.
Capacity ( Law )
The capacity of natural and juridical persons (legal persons) in general, determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will. Capacity is an aspect of status and both are defined by a person’s personal law:
for natural persons, the law of domicile or lex domicilii in common law jurisdictions, and either the law of nationality or lex patriae, or of habitual residence in civil law states;
for juridical persons, the law of the place of incorporation, the lex incorporationis for companies while other forms of business entity derive their capacity either from the law of the place in which they were formed or the laws of the states in which they establish a presence for trading purposes depending on the nature of the entity and the transactions entered into.
When the law limits or bars a person from engaging in specified activities, any agreements or contracts to do so are either voidable or void for incapacity. Sometimes such legal incapacity is referred to as incompetence. For comparison, see Competence (law).
As an aspect of the social contract between a state and its citizens, the state adopts a role of protector to the weaker and more vulnerable members of society. In public policy terms, this is the policy of parens patriae. Similarly, the state has a direct social and economic interest in promoting trade, so it will define the forms of business enterprise that may operate within its territory, and lay down rules that will allow both the businesses and those that wish to contract with them a fair opportunity to gain value.
Parens patriae
Parens patriae is Latin for “parent of the nation” (lit., “parent of the fatherland”). In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection. For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, thus requiring state intervention.
Judiciary
The judiciary (also known as the judicial system or court system) is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. In some nations, under doctrines of separation of powers, the judiciary generally does not make law (which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case. In other nations, the judiciary can make law, known as Common Law, by setting precedent for other judges to follow, as opposed to Statutory Law made by the legislature. The Judiciary is often tasked with ensuring equal justice under law.
Competence ( Law )
In United States law, competence concerns the mental capacity of an individual to participate in legal proceedings or transactions, and the mental condition a person must have to be responsible for his or her decisions or acts. Competence is an attribute that is decision specific. Depending on various factors which typically revolve around mental function integrity, an individual may or may not be competent to make a particular medical decision, a particular contractual agreement, to execute an effective deed to real property, or to execute a will having certain terms. Depending on the state, a guardian or conservator may be appointed by a court for a person who satisfies the state’s tests for general incompetence, and the guardian or conservator exercises the incompetent’s rights for the incompetent. Defendants who do not possess sufficient “competence” are usually excluded from criminal prosecution, while witnesses found not to possess requisite competence cannot testify. The English equivalent is fitness to plead.
In the law of England and Wales, fitness to plead is the capacity of a defendant in criminal proceedings to comprehend the course of those proceedings. The concept of fitness to plead also applies in Scots and Irish law.[1] Its United States equivalent is competence to stand.
If the issue of fitness to plead is raised, a judge is able to find a person unfit to plead. This is usually done based on information following a psychiatric evaluation.
In England and Wales the legal test of fitness to plead is based on the ruling of Alderson B. in R v Pritchard. The accused will be unfit to plead if he is unable either:
to comprehend the course of proceedings on the trial, so as to make a proper defence;
to know that he might challenge any jurors to whom he may object;
to comprehend the evidence; or
to give proper instructions to his legal representatives.[2]
If the issue is raised by the prosecution, the prosecution must prove beyond reasonable doubt that the defendant is unfit to plead.[3] If the issue is raised by the defence, it need only be proved on the balance of probabilities.[4]
In Scotland the test is based on HMA v Wilson, and has two elements:
to be able to instruct counsel and
to understand and follow proceedings.[5]
Legal Guardian ( Law )
A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. Guardians are typically used in three situations: guardianship for an incapacitated senior (due to old age or infirmity), guardianship for a minor, and guardianship for developmentally disabled adults.
Power of Attorney
A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter, sometimes against the wishes of the other. The person authorizing the other to act is the principal, grantor, or donor (of the power). The one authorized to act is the agent[1] or, in some common law jurisdictions, the attorney-in-fact (attorney for short). Formerly, a power referred to an instrument under seal while a letter was an instrument under hand, but today both are signed by the grantor, and therefore there is no difference between the two.
Attorney in Fact
The term attorney-in-fact is used in several countries in place of the term agent and should be distinguished from the term attorney-at-law.
In the United States, an attorney-at-law is a lawyer — someone licensed to practice law in a particular jurisdiction.
The Uniform Power of Attorney Act employs the term agent.[2] As an agent, an attorney-in-fact is a fiduciary for the principal, so the law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other. If the attorney-in-fact is being paid to act for the principal, the contract is usually separate from the power of attorney itself, so if that contract is in writing, it is a separate document, kept private between them, whereas the power of attorney is intended to be shown to various other people.
In the context of the unincorporated reciprocal inter-insurance exchange (URIE) the attorney-in-fact is a stakeholder/trustee who takes custody of the subscriber funds placed on deposit with him, and then uses those funds to pay insurance claims. When all the claims are paid, the attorney-in-fact then returns the leftover funds to the subscribers.
Attorney at Law
An attorney at law (or attorney-at-law) in the United States is a practitioner in a court of law who is legally qualified to prosecute and defend actions in such court on the retainer of clients. Alternative terms include counselor (or counsellor-at-law) and lawyer.[1] As of April 2011, there were 1,225,452 licensed attorneys in the United States.[2] A 2012 survey conducted by LexisNexis Martindale-Hubbell determined 58 million consumers in the U.S. sought an attorney in the last year and that 76 percent of consumers used the Internet to search for an attorney.[3]
Solicitor
A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and enabled to practise there as such. For example, in England and Wales a solicitor is admitted to practise under the provisions of the Solicitors Act 1974. With some exceptions, practising solicitors must possess a practising certificate. There are many more solicitors than barristers in England; they undertake the general aspects of giving legal advice and conducting legal proceedings.
Barrister
A barrister (also known as barrister-at-law or bar-at-law) is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching the philosophy, hypothesis and history of law, and giving expert legal opinions. Often, barristers are also recognised as legal scholars.
Barristers are distinguished from solicitors, who have more direct access to clients, and may do transactional-type legal work. It is mainly barristers who are appointed as judges, and they are rarely hired by clients directly. In some legal systems, including those of Scotland, South Africa, Scandinavia, Pakistan, India, Bangladesh, and the British Crown dependencies of Jersey, Guernsey and the Isle of Man, the word barrister is also regarded as an honorific title.
In a few jurisdictions, barristers are usually forbidden from “conducting” litigation, and can only act on the instructions of a senior solicitor, who performs tasks such as corresponding with parties and the court, and drafting court documents. In England and Wales, barristers may seek authorisation from the Bar Standards Board to conduct litigation. This allows a barrister to practise in a ‘dual capacity’, fulfilling the role of both barrister and solicitor.
Capacity of the Grantor
The person who creates a power of attorney, known as the grantor, can only do so when he/she has the requisite mental capacity. Suppose the grantor loses capacity to grant permission after the power of attorney has been created (for example, from Alzheimer’s disease or a head injury in a car crash); then the power will probably no longer be effective. In some powers of attorney the grantor states that he/she wishes the document to remain in effect even after he/she becomes incapacitated. This type of power is commonly referred to as a durable power of attorney. If someone is already incapacitated, it is not possible for that person to execute a valid power. If a person does not have the capacity to execute a power of attorney (and does not already have a durable power in place), often the only way for another party to act on their behalf is to have a court impose a conservatorship or a guardianship.
Oral or Written Evidence
Depending on the jurisdiction, a power of attorney may be oral and, whether witnessed, will hold up in court, the same as if it were in writing.[3] For some purposes, the law requires a power of attorney to be in writing. Many institutions, such as hospitals, banks and, in the United States, the Internal Revenue Service, require a power of attorney to be in writing before they will honor it, and they will usually keep a duplicate original or a copy for their records. Nursing homes often follow the same practice.
Equal Dignity Rule
The equal dignity rule is a principle of law that requires an authorization for someone performing certain acts for another person to have been appointed with the same formality as required for the act the representative is going to perform. This means, for example, that if a principal authorizes someone to sell the principal’s house or other real property, and the law requires a contract for the sale of real property to be in writing (which is required under the Statute of Frauds in most U.S. jurisdictions), then the authorization for the other person to sign the sales contract and deed must be in writing too. Likewise, in common-law jurisdictions other than the U.S., a power of an attorney to execute a deed (i.e. instrument under seal or executed in presence of two witnesses) must be itself executed as a deed.
Deed ( Law )
A deed (anciently “an evidence”) is any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. It is commonly associated with transferring title to property. The deed has a greater presumption of validity and is less rebuttable than an instrument signed by the party to the deed. A deed can be unilateral or bilateral. Deeds include conveyances, commissions, licenses, patents, diplomas, and conditionally powers of attorney if executed as deeds. The deed is the modern descendant of the medieval charter, and delivery is thought to symbolically replace the ancient ceremony of livery of seisin.[1]
The traditional phrase signed, sealed and delivered refers to the practice of seals; however, attesting witnesses have replaced seals to some extent. Agreements under seal are also called contracts by deed or specialty; in the United States, a specialty is enforceable without consideration.[2] In some jurisdictions, specialties have a liability limitation period of double that of a simple contract and allow for a third party beneficiary to enforce an undertaking in the deed, thereby overcoming the doctrine of privity.[3] Specialties, as a form of contract, are bilateral and can therefore be distinguished from covenants, which, being also under seal, are unilateral promises.
Deed Requirements
At common law, to be valid and enforceable, a deed must fulfill several requirements:
It must state on its face that it is a deed, using wording like “This Deed…” or “executed as a deed”.
It must indicate that the instrument itself conveys some privilege or thing to someone.
The grantor must have the legal ability to grant the thing or privilege, and the grantee must have the legal capacity to receive it.
It must be executed by the grantor in presence of the prescribed number of witnesses, known as instrumentary witnesses (this is known as being in solemn form).
In some jurisdictions, a seal must be affixed to it. Originally, affixing seals made persons parties to the deed and signatures optional, but seals are now outdated in most jurisdictions, so the signatures of the grantor and witnesses are primary.
It must be delivered to (delivery) and accepted by the grantee (acceptance).[4]
Conditions attached to the acceptance of a deed are known as covenants. A deed indented or indenture is one executed in two or more parts according to the number of parties, which were formerly separated by cutting in a curved or indented line known as the chirograph.[5] A deed poll is one executed in one part, by one party, having the edge polled or cut even, and includes simple grants and appointments.
Covenant
A covenant, in its most general sense and historical sense, is a solemn promise to engage in or refrain from a specified action. Under historical English common law a covenant was distinguished from an ordinary contract by the presence of a seal. Because the presence of a seal indicated an unusual solemnity in the promises made in a covenant, the common law would enforce a covenant even in the absence of consideration.[1] In United States contract law, an implied covenant of good faith is presumed.
A covenant is a type of contract in which the covenantor makes a promise to a covenantee to do (affirmative covenant) or not do some action (negative covenant). In real property law, the term real covenants is used for conditions tied to the use of land. A “covenant running with the land”, also imposes duties or restrictions upon the use of that land regardless of the owner. Restrictive covenants are somewhat similar to easements and equitable servitudes, leading to some discussion about whether these concepts should be unified;[2] the Restatement (Third) of Property takes steps to merge these concepts as servitudes.[3] Real covenant law in the United States has been referred to as an “unspeakable quagmire” by one court.[4]
Covenants for title are covenants which come with a deed or title to the property, in which the grantor of the title makes certain guarantees to the grantee.[5] Non-compete clauses in the United States are also called restrictive covenants.
Real Covenant
In property law, land-related covenants are called “real covenants” and are a major form of covenant, typically imposing restrictions on how the land may be used (negative covenants) or requiring a certain continuing action (affirmative covenant). These may also “run with the land” (called a covenant appurtenant), meaning that any future owners of the land must abide by the terms, or may apply to a particular person (called a covenant in gross).[5] Under English law, affirmative covenants typically do not run with the land; in the United States such covenants are examined more closely, but with exceptions affirmative covenants have been permitted to run with the land.[6]
Seal ( Intaglio )
A seal is a device for making an impression in wax, clay, paper, or some other medium, including an embossment on paper, and is also the impression thus made. The original purpose was to authenticate a document, a wrapper for one such as a modern envelope, or the cover of a container or package holding valuables or other objects.
The seal-making device is also referred to as the seal matrix or die; the imprint it creates as the seal impression (or, more rarely, the sealing).[1] If the impression is made purely as a relief resulting from the greater pressure on the paper where the high parts of the matrix touch, the seal is known as a dry seal; in other cases ink or another liquid or liquefied medium is used, in another color than the paper.
INTAGLIO
Strictly speaking, engraving means carving in intaglio (with the design cut into the flat background of the stone), but relief carvings (with the design projecting out of the background as in nearly all cameos) are also covered by the term. This article uses “cameo” in its strict sense, to denote a carving exploiting layers of differently coloured stone. The activity is also called gem carving, and the artists gem-cutters. References to antique gems, and intaglios in a jewellery context, will almost always mean carved gems; when referring to monumental sculpture, counter-relief, meaning the same as “intaglio”, is more likely to be used. Vessels like the Cup of the Ptolemies and heads or figures carved in the round are also known as “hardstone carvings” and similar terms.
Equitable Servitude
An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land. However, covenants and equitable servitudes should not be confused. One may tell the difference based on the remedy plaintiff seeks. Holders of a covenant seek money damages, but holders of equitable servitudes seek injunctions. In England, when a party is forbidden from certain use, the covenant is called equitable servitude. In the United States, both negative and affirmative equitable servitudes are recognized. It is a covenant that equity will enforce against the successors of the burdened land who have notice of the covenant.
BURDEN
A successor of the promisor is bound if the original promise is in writing, the covenanting parties intended the servitude to be enforceable by and against assignees, the successor of the promisor has actual, inquiry (record), or constructive notice of the servitude, and the covenant touches and concerns the land.
BENEFIT
The benefit of an equitable servitude runs with the land, and thus is enforceable by the promisee’s successors if the original parties so intended, and the servitude touches and concerns the benefited property.
A court will not enforce an equitable servitude under the following circumstances:
The person seeking enforcement is violating a similar restriction on his own land (unclean hands).
The holder of the dominant estate acquiesced in violation of the servitude by the holder of the servient estate (acquiescence).
The holder of the dominant estate acted in such a way that would have a reasonable person to believe that the covenant was abandoned (estoppel).
The owner of the dominant estate fails to bring suit against the violator within a reasonable time (laches).
The character of the neighborhood changed sufficiently through development, changes in zoning, or through non-enforcement of the equitable servitude (called the “changed conditions” doctrine).
Equitable Servitude Defense
A court will not enforce an equitable servitude under the following circumstances:
The person seeking enforcement is violating a similar restriction on his own land (unclean hands).
The holder of the dominant estate acquiesced in violation of the servitude by the holder of the servient estate (acquiescence).
The holder of the dominant estate acted in such a way that would have a reasonable person to believe that the covenant was abandoned (estoppel).
The owner of the dominant estate fails to bring suit against the violator within a reasonable time (laches).
The character of the neighborhood changed sufficiently through development, changes in zoning, or through non-enforcement of the equitable servitude (called the “changed conditions” doctrine).
Estoppel
Estoppel is a collective name given to a group of legal doctrines in common law legal systems whereby a person is prevented from making assertions that are contradictory to his or her prior position on certain matters before the court - the person is said to be “estopped”.[1] Estoppel may operate by way of preventing someone from asserting a particular fact in court, or exercising a certain right, or from bringing a particular claim. Black’s Law Dictionary defines estoppel as a “bar or impediment raised by the law, which precludes a man from alleging or from denying a certain fact or state of facts, in consequence of his previous allegation or denial or conduct or admission, or in consequence of a final adjudication of the matter in a court of law.”[2]
There are many different types of estoppel which can arise, but the common thread between them is that a person is restrained from asserting a particular position in law where it would be inequitable to do so. By way of illustration:
If a landlord promises the tenant that he will not exercise his right to terminate a lease, and relying upon that promise the tenant spends money improving the premises, the doctrine of promissory estoppel may prevent the landlord from exercising a right to terminate, even though his promise might not otherwise have been legally binding as a contract. The landlord is precluded from asserting a specific right.
If a person brings legal proceedings in one country claiming that a second person negligently injured them and the courts of that country determine that there was no negligence, then under the doctrine of issue estoppel the first person will not normally be able to argue before the courts of another country that the second person was negligent (whether in respect of the same claim or a related claim). The first person is precluded from asserting a specific claim.
Estoppel is an equitable doctrine.[3] Accordingly, any person wishing to assert an estoppel must normally come to the court with “clean hands”.
The doctrine of estoppel (which may prevent a party from asserting a right) is often confused with the doctrine of waiver (which relates to relinquishing a right once it has arisen). It also substantially overlaps with, but is distinct from, the equitable doctrine of laches.
The verb is estop, which comes from Middle English estoppen, itself borrowed from Old French estop(p)er, estouper, presumably from Vulgar Latin *stuppāre ‘to stop up with tow, caulk’, from Latin stuppa, ‘broken flax’, from Ancient Greek stuppe, ‘broken flax’[4] The noun form estoppel is based on the Old French estoupail ‘stopper, bung’, a derivative of estouper.
Where a court finds that a party has done something warranting a form of estoppel, that party is said to be estopped from making certain related arguments or claiming certain related rights. The defendant is estopped from presenting the related defence, or the plaintiff is estopped from making the related argument against the defendant. Lord Coke stated, “It is called an estoppel or conclusion, because a man’s own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth.”[5]
Latches ( Equity )
Laches (/ˈlætʃᵻz/, la-chəz, like “latches”; /ˈleɪtʃᵻz/, lay-chəz; Law French: “remissness”, “dilatoriness”, from Old French laschesse) refers to a lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, in particular with regard to equity; hence, it is an unreasonable delay that can be viewed as prejudicing the opposing [defending] party. When asserted in litigation, it is an equity defense, that is, a defense to a claim for an equitable remedy. The person invoking laches is asserting that an opposing party has “slept on its rights,” and that, as a result of this delay, circumstances have changed, witnesses or evidence may have been lost or no longer available, etc., such that it is no longer a just resolution to grant the plaintiff’s claim. Laches is associated with the maxim of equity, “Equity aids the vigilant, not the sleeping ones [that is, those who sleep on their rights].” Put another way, failure to assert one’s rights in a timely manner can result in a claim being barred by laches.
Laches is a legal term derived from the Old French laschesse, meaning “remissness” or “dilatoriness,” and is viewed as the opposite of “vigilance.”
Waiver
A waiver is the voluntary relinquishment or surrender of some known right or privilege.
Lex Causae
In the conflict of laws, lex causae (Latin: lex + causa, “cause [for the] law”) is the law or laws chosen by the forum court from among the relevant legal systems to arrive at its judgment of an international or interjurisdictional case. The term refers to the usage of particular local laws as the basis or “cause” for the ruling, which would itself become part of referenced legal canon.
Conflict of laws regulates all lawsuits involving foreign law if the outcome of a legal action will differ based on the laws that are applied. Once the forum court has ruled that it has jurisdiction to hear the case, it must then decide among the possible laws to be applied.
When the parties and the causes of action are local, the court will apply the lex fori, the prevailing municipal law. If there are foreign elements to the case, the forum court should, under the conflict of laws, consider if it should apply one or more foreign laws.
Dominium Utile
Dominium utile (Feudal): the right of use and utility of an asset, and to keep the benefits (such as the right to live on the land, and to keep the profits from agriculture).
The terms derive from Latin dominium (domain, dominion), directum (direction, in the sense of leadership), and utile (use, utility).
The holder of the dominium directum is considered the superior (i.e., the lord); the holder of the dominium utile is considered the inferior (i.e., the vassal).
Dominium Directum
Dominium directum (Feudal): the right of the lord (i.e., the right to direct) in the disposition of an asset (typically land).
The holder of the dominium directum is considered the superior (i.e., the lord); the holder of the dominium utile is considered the inferior (i.e., the vassal).
Lord
Under the feudal system, “lord” had a wide, loose and varied meaning. An overlord was a person from whom a landholding or a manor was held by a mesne lord or vassal under various forms of feudal land tenure.
Mesne Lord
A mesne lord was a lord in the feudal system who had vassals who held land from him, but who was himself the vassal of a higher lord.
A mesne lord did not hold land directly of the king, that is to say he was not a tenant-in-chief.
His subinfeudated estate was called a “mesne estate” or Afterlehen in the Holy Roman Empire.
He was thus an intermediate or “middle” tenant, which status is reflected in the medieval French word mesne, in modern French moyen.[1]
Tenet in Cheif
In medieval and early modern Europe the term tenant-in-chief (or vassal-in-chief), denoted a person who held his lands under various forms of feudal land tenure directly from the king or territorial prince to whom he did homage, as opposed to holding them from another nobleman or senior member of the clergy.[1][2] The tenure was one which denoted great honour, but also carried heavy responsibilities as the tenants-in-chief were originally responsible for providing knights and soldiers for the king’s feudal army.
Other names for tenant-in-chief were captal or baron,[a] although the latter term came to mean specifically one who held in-chief by the tenure per baroniam, the feudal baron.[1] The Latin term was tenens in capite;
Feudal Land Tenure
Under the English feudal system several different forms of land tenure existed, each effectively a contract with differing rights and duties attached thereto. Such tenures could be either free-hold, signifying that they were hereditable or perpetual, or non-free where the tenancy terminated on the tenant’s death or at an earlier specified period. The main varieties are as follows:
MILITARY TENURE…
BARONY - (per baroniam). Such tenure constituted the holder a feudal baron, and was the highest degree of tenure. It imposed duties of military service and required attendance at parliament. All such holders were necessarily tenants-in-chief.
by knight-service.
KNIGHT SERVICE - This was a tenure ranking below barony, and was likewise for military service, of a lesser extent. It could be held in capite from the king or as a mesne tenancy from a tenant-in-chief.
CASTLE GUARD - This was a form of military service which involved guarding a nearby castle for a specified number of days per year.
SCUTAGE - where the military service obligations had been commuted, or replaced, by money payments.
NON-MILITARY TENURE
SERJEANTY - Such tenure was in return for acting as a servant to the king, in a non-military capacity. Service in a ceremonial form is termed “grand serjeanty” whilst that of a more functional or menial nature is termed “petty serjeanty”.
by frankalmoinage, generally a tenure restricted to clerics.
FEE FARM - a grant of the right to collect and retain revenues in return for a fixed rent. Usually a royal grant.
COPYHOLD - where the duties and obligations were tailored to the requirements of the lord of the manor and a copy of the terms agreed was entered on the roll of the manorial court as a record.
by socage. A form of tenure, involving payment in produce or in money.
QUIT RENT - The payment of an annual fee in exchange for freedom from all other feudal obligations.
MISC…
IN PARAGIO - a form of tenure frequently appearing in Domesday Book. (Coolf tenuit in paragio de rege, manor of Welige, IoW).
Free burgage, tenure within a town or city.[1]
Curtesy tenure. A tenant “by the curtesy of England”, being a widower of a wife by whom he has issue by her born alive, in respect of her enseized right in land, generally originating in a paternal inheritance. Roger Bigod claimed it unsuccessfully on the death of his wife Aliva.[2]
TENANT~AT~WILL - Such tenant had no security of tenure whatsoever. It developed into the more secure “copyhold tenure”, where the terms were set out in an entry on the manorial roll.
GAVELKIND - Frequently found in mediaeval Kent, “held according to the custom of gavelkind”. It withdrew a dower from a widow if she remarried.
FEE SIMPLE - a tenure with no service obligations attached which could be a free-holding (i.e. hereditable) or non-free (expiring on the tenant’s death).[4] On the abolition of feudal tenure in 1660, all existing tenures were converted to this tenure.
Socage ( Feudal Tenure )
Socage (/ˈsɒkᵻdʒ/)[1] was one of the feudal duties and hence land tenure forms in the feudal system. A farmer, for example, held the land in exchange for a clearly defined, fixed payment to be made at specified intervals to his feudal lord, who in turn had his own feudal obligations, to the farmer and to the Crown. In theory this might involve supplying the lord with produce but most usually it meant a straightforward payment of cash, i.e., rent.
Serjeanty ( Feudal Tenure )
Under feudalism in England during the mediaeval era, tenure by serjeanty was a form of tenure in return for some specified non-standard service, thus distinguishing it from knight-service. It is also used of similar forms in Continental Europe.
The word comes from the French noun sergent, itself from the Latin serviens, servientis, “serving”, the present participle of the verb servo,[1] “to keep, preserve, save, rescue, deliver”.
Serjeanty originated in the assignation of an estate in land on condition of the performance of a certain duty other than knight-service, usually the discharge of duties in the household of the king or a noble. It ranged from non-standard service in the king’s army (distinguished only by equipment from that of the knight), to petty renders (for example the rendering of a quantity of basic food such as a goose) scarcely distinguishable from those of the rent-paying tenant or socager.
The legal historians Pollock and Maitland (1895) described it as being a free “servantship” in the sense that the serjeant, whatever his task, was essentially a menial servant.[3] However the feudal historian Round objected that their definition does not cover military serjeanties and glosses over the honorific value of at least some of the services.[4]
Domesday Book
Domesday Book = Great Survey = Invetory
(/ˈduːmzdeɪ/ or US /ˈdoʊmzdeɪ
Latin: Liber de Wintonia “Book of Winchester”) is a manuscript record of the “Great Survey” of much of England and parts of Wales completed in 1086 by order of King William the Conqueror. The Anglo-Saxon Chronicle states:
Then, at the midwinter [1085], was the king in Glocester with his council … . After this had the king a large meeting, and very deep consultation with his council, about this land; how it was occupied, and by what sort of men. Then sent he his men over all England into each shire; commissioning them to find out ‘How many hundreds of hides were in the shire, what land the king himself had, and what stock upon the land; or, what dues he ought to have by the year from the shire.’
The survey’s main purpose was to determine what taxes had been owed during the reign of King Edward the Confessor, which allowed William to reassert the rights of the Crown and assess where power lay after a wholesale redistribution of land following the Norman conquest.
The assessors’ reckoning of a man’s holdings and their values, as recorded in Domesday Book, was dispositive and without appeal. The name “Domesday Book” (Middle English for “Doomsday Book”) came into use in the 12th century.[5] As Richard FitzNeal wrote in the Dialogus de Scaccario (circa 1179):[6]
for as the sentence of that strict and terrible last account cannot be evaded by any skilful subterfuge, so when this book is appealed to … its sentence cannot be quashed or set aside with impunity. That is why we have called the book ‘the Book of Judgement’ … because its decisions, like those of the Last Judgement, are unalterable.
Ward ( Law )
someone placed under the protection of a legal guardian. A court may take responsibility for the legal protection of an individual, usually either a child or incapacitated person, in which case the ward is known as a ward of the court or a ward of the state.
In Australia, New Zealand and the United States, the child is termed a ward of the court. In Ireland and the United Kingdom “the” is not used; the ward is thus termed a ward of court.[1] In Canada the legal term is Crown ward.[2]
Children who are in the custody of government departments, also known as foster care, become wards of the respective government entity, and in the US wards of the states in which they reside. The government or state is in loco parentis to the child, which generally entails assuming all lawful authority to make medical and legal decisions on the child’s behalf.[3][4]
Free Hold ( Law )
In England and Wales, a freehold is the common ownership of real property, or land,[1] and all immovable structures attached to such land, as opposed to a leasehold in which the property reverts to the owner of the land after the lease period has expired.[2] Immovable property includes land and all that naturally goes with it, such as buildings, trees or underground resources, but not such things as vehicles or livestock.
For an estate to be a freehold it must possess two qualities: immobility (property must be land or some interest issuing out of or annexed to land), and ownership of it must be of an indeterminate duration. If the time of ownership can be fixed and determined, it cannot be a freehold.
Law of Property Act. 1925
The Law of Property Act 1925 (c 20) is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legislation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property. The Act deals principally with the transfer of freehold or leasehold land by deed.
That which was hidden from Maitland, Joshua Williams, and the other great ones, was revealed to a Welsh solicitor ( David Lloyd George, 1st Earl Lloyd-George of Dwyfor ) who in the budget of 1910 proposed to tax the land so as to force it on the market. The radically revolutionary character of this proposal was at once recognized in England. It was bitterly fought by all those who treasured what had remained of the old English aristocratic rule. When this budget finally passed, the basis of the old real property law and the effective power of the House of Lords was gone.[3] The legislation of 1925-26 was thus a final completion in the realm of private law of the revolution that was fought in 1910 in the forum of public law, i.e., in the field of taxation and the power of the House of Lords.[4]
Land Value Tax
A land/location value tax (LVT), also called a site valuation tax, split rate tax, or site-value rating, is a levy on the unimproved value of land. It is an Ad valorem tax that, unlike property taxes, disregards the value of buildings, personal property and other improvements.[1]
Ad Valorem Tax
An ad valorem tax (Latin for “according to value”) is a tax whose amount is based on the value of a transaction or of property. It is typically imposed at the time of a transaction, as in the case of a sales tax or value-added tax (VAT). An ad valorem tax may also be imposed annually, as in the case of a real or personal property tax, or in connection with another significant event (e.g. inheritance tax, expatriation tax, or tariff).[1] In some countries a stamp duty is imposed as an ad valorem tax.
Private Law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts[1] (as it is called in the common law), and the law of obligations (as it is called in civil legal systems). It is to be distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the state, including regulatory statutes, penal law and other law that affects the public order. In general terms, private law involves interactions between private citizens, whereas public law involves interrelations between the state and the general population.
Public Law
Public law (lat. ius publicum) is that part of law which governs relationships between individuals and the government, and those relationships between individuals which are of direct concern to society.[1] Public law comprises constitutional law, administrative law, tax law and criminal law,[1] as well as all procedural law. In public law, mandatory rules prevail. Laws concerning relationships between individuals belong to private law.
The relationships public law governs are asymmetric and unequal – government bodies (central or local) can make decisions about the rights of individuals. However, as a consequence of the rule of law doctrine, authorities may only act within the law (secundum et intra legem). The government must obey the law. For example, a citizen unhappy with a decision of an administrative authority can ask a court for judicial review.
Rights, too, can be divided into private rights and public rights. A paragon of a public right is the right to welfare benefits – only a natural person can claim such payments, and they are awarded through an administrative decision out of the government budget.
The distinction between public law and private law dates back to Roman law. It has been picked up in the countries of civil law tradition at the beginning of the nineteenth century, but since then spread to common law countries, too.
The borderline between public law and private law is not always clear in particular cases, giving rise to attempts of theoretical understanding of its basis.
Rule of Law
The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials.[2] The phrase can be traced back to 16th century Britain, and in the following century the Scottish theologian Samuel Rutherford used the phrase in his argument against the divine right of kings.[3] John Locke defined freedom under the rule of law as follows:
“Freedom is constrained by laws in both the state of nature and political society. Freedom of nature is to be under no other restraint but the law of nature. Freedom of people under government is to be under no restraint apart from standing rules to live by that are common to everyone in the society and made by the lawmaking power established in it. Persons have a right or liberty to (1) follow their own will in all things that the law has not prohibited and (2) not be subject to the inconstant, uncertain, unknown, and arbitrary wills of others.”
Rule of law implies that every citizen is subject to the law, including lawmakers themselves. In this sense, it stands in contrast to an autocracy, dictatorship, or oligarchy where the rulers are held above the law. Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. Government based upon the rule of law is called nomocracy.
Nomocracy = ( Rule of Law )
(politics) A political system under the sovereignty of rational laws and civic rights.
From nomo- + -cracy.
Nomo = Law
Cracy = From the Ancient Greek suffix -κρατία (-kratía), from κράτος (krátos, “power, rule”).
Rule =
(noun) : from Middle English rule, a borrowing from Old French riule, reule, inherited from Latin regula (“straight stick, bar, ruler, pattern”), from regere (“to keep straight, direct, govern, rule”); see regent.
(verb) : from Middle English rulen, a from borrowing from Old French riuler, from Latin regulāre (“to regulate, rule”), from regula (“a rule”); see regular.
A ruler; device for measuring, a straightedge, a measure.
Synonym = Archy
From Latin -archia, from Ancient Greek -αρχία (-arkhía), from ἀρχή (arkhḗ, “rule”, “government”).
Divine Right of Kings
The divine right of kings, divine right, or God’s mandate is a political and religious doctrine of royal and political legitimacy. It asserts that a monarch is subject to no earthly authority, deriving the right to rule directly from the will of God. The king is thus not subject to the will of his people, the aristocracy, or any other estate of the realm. It implies that only God can judge an unjust king and that any attempt to depose, dethrone or restrict his powers runs contrary to the will of God and may constitute a sacrilegious act. It is often expressed in the phrase “by the Grace of God”, attached to the titles of a reigning monarch.
In the pagan world, kings were often seen as either ruling with the backing of heavenly powers or perhaps even being divine beings themselves. However, the Christian notion of a divine right of kings could be traced to the biblical story found in 1 Samuel, where the prophet Samuel anoints Saul and then David as mashiach or king over Israel. And the anointing is to such an effect that the monarch became inviolable, so that even when Saul sought to kill David, David would not raise his hand against him because ‘he was the Lord’s anointed’.
The divine right of kings, or divine-right theory of kingship, is a political and religious doctrine of royal and political legitimacy. It asserts that a monarch is subject to no earthly authority, deriving his right to rule directly from the will of God. The king is thus not subject to the will of his people, the aristocracy, or any other estate of the realm, including (in the view of some, especially in Protestant countries) the church. A weaker or more moderate form of this political theory does hold, however, that the king is subject to the church and the pope, although completely irreproachable in other ways; but according to this doctrine in its strong form, only God can judge an unjust king. The doctrine implies that any attempt to depose the king or to restrict his powers runs contrary to the will of God and may constitute a sacrilegious act.
Reverence
Reverence (/ˈrɛvərəns/) is “a feeling or attitude of deep respect tinged with awe; veneration”.[1] The word “reverence” in the modern day is often used in relationship with religion. This is because religion often stimulates the emotion through recognition of God, the supernatural, and the ineffable. Reverence involves a humbling of the self in respectful recognition of something perceived to be greater than the self. Thus religion is commonly a place where reverence is felt.
However, similar to awe, reverence is an emotion in its own right, and can be felt outside of the realm of religion.[2] Whereas awe may be characterized as an overwhelming “sensitivity to greatness,” reverence is seen more as “acknowledging a subjective response to something excellent in a personal (moral or spiritual) way, but qualitatively above oneself” [3] Solomon describes awe as passive, but reverence as active, noting that the feeling of awe (i.e., becoming awestruck) implies paralysis, whereas feelings of reverence are associated more with active engagement and responsibility toward that which one reveres.[4] Nature, science, literature, philosophy, great philosophers, leaders, artists, art, music, wisdom, and beauty may each act as the stimulus and focus of reverence.
Sacred
Sacred means revered due to sanctity and is generally the state of being perceived by religious individuals as associated with divinity and considered worthy of spiritual respect or devotion; or inspiring awe or reverence among believers.
From an anthropological or atheistic perspective, the religious view of the sacred is an emic perspective on a culture’s collection of thoughts and practices that function as a basis for the community’s social structure.
Objects are often considered sacred if used for spiritual purposes, such as the worship or service of gods. The property is often ascribed to objects (a “sacred artifact” that is venerated and blessed), or places (“sacred ground”).
The word “sacred” descends from the Latin wikt:sacer, that is consecrated, or dedicated[1] to the gods or anything in their power, and to sacerdos and sanctum, set apart.
From Proto-Indo-European *sh₂krós (“sacred”), from *seh₂k- (“to sanctify, to make a treaty”).
Sacred, holy, dedicated to a divinity, consecrated, hallowed (translating Greek ἱερός).
ἱερός • (hierós) Hero ~ Chi-Rho = Holy
ἱερός • (hierós) m (feminine ἱερᾱ́, neuter ἱερόν); first/second declension
Connected with the gods, supernatural
holy, sacred, consecrated
Under divine protection
holy (comparative holier, superlative holiest)
Dedicated to a religious purpose or a god.
I’m planning to visit the holy city of Mecca this Ramadan.
Revered in a religion.
Perfect or flawless.
Separated or set apart from (something unto something or someone else).
Set apart or dedicated for a specific purpose, or for use by a single entity or person.
Lex loci delicti commissi
The lex loci delicti commissi is the Latin term for “law of the place where the delict [tort] was committed”[1] in the conflict of laws. Conflict of laws is the branch of law regulating all lawsuits involving a “foreign” law element where a difference in result will occur depending on which laws are applied.
Lex loci celebrationis
Lex loci celebrationis is a Latin term for a legal principle in English common law, roughly translated as “the law of the land (lex loci) where the marriage was celebrated”. It refers to the validity of the union, independent of the laws of marriage of the countries involved: where the two individuals have legal nationality or citizenship, or where they live (reside or are domiciled). The assumption under the common law is that such a marriage, when lawfully and validly celebrated under the relevant law of the land, is also lawful and valid.[citation needed]
privilegium fori
The privilegium fori (Latin for “privilege of the (legal) forum”) is a generic term for legal privileges to be tried in a particular court or type of court of law.[1]
Typically, it is an application of the principle of trial by one’s peers, either by such a jury or at least by a specific court from that social segment, such as a soldier by a court martial, a cleric by an ecclesiastical court.[1]
Privilegium fori used to be one of the ecclesiastical privileges in the canon law of the Catholic Church: a member of the clergy received a special tribunal in civil and criminal causes before an ecclesiastical judge.[1][2]
Court
A court is a tribunal, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law.[1] In both common law and civil law legal systems, courts are the central means for dispute resolution, and it is generally understood that all persons have an ability to bring their claims before a court. Similarly, the rights of those accused of a crime include the right to present a defense before a court.
Judiciary - Venue - Courthouse
The system of courts that interprets and applies the law is collectively known as the judiciary. The place where a court sits is known as a venue. The room where court proceedings occur is known as a courtroom, and the building as a courthouse; court facilities range from simple and very small facilities in rural communities to large buildings in cities.
Jurisdiction
The practical authority given to the court is known as its jurisdiction (Latin jus dicere) – the court’s power to decide certain kinds of questions or petitions put to it.
Tribunal Court
a court is constituted by a minimum of three parties: the actor or plaintiff, who complains of an injury done; the reus or defendant, who is called upon to make satisfaction for it, and the judex or judicial power, which is to examine the truth of the fact, to determine the law arising upon that fact, and, if any injury appears to have been done, to ascertain and by its officers to apply a legal remedy.
Bailiff
- the officer responsible for executing the decisions of a court.
Bailiff was the term used by the Normans for what the Saxons had called a reeve: the officer responsible for executing the decisions of a court.
The duty of the bailiff would thus include serving summonses and orders, and executing all warrants issued out of the corresponding court.
The district within which the bailiff operated was called his bailiwick, even to the present day. Bailiffs were outsiders and free men, that is, they were not usually from the bailiwick they were responsible for.
Throughout Norman England, the Saxon and Norman populations gradually mixed, and reeve came to be limited to shire-level courts (hence sheriff as a contraction of “shire-reeve”), while bailiff was used in relation to the lower courts. Primarily then, bailiff referred to the officer executing the decisions of manorial courts, and the hundred courts. Likewise, in Scotland a bailie was the chief officer of a barony (baron bailie), and in the Channel Islands they were the principal civil officers. With the introduction of Justices of the Peace (magistrates), magistrates’ courts acquired their own bailiffs.
Historically, courts were not always concerned with legal matters, and often decided administrative matters for the area within their jurisdiction. A bailiff of a manor, therefore, would often oversee the manor’s lands and buildings, collect its rents, manage its accounts, and run its farms (see Walter of Henley).[1]
bailiwick
A bailiwick /ˈbeɪlᵻwɪk/ is usually the area of jurisdiction of a bailiff, and once also applied to territories in which a privately appointed bailiff exercised the sheriff’s functions under a royal or imperial writ. The word is now more generally used in a metaphorical sense, to indicate a sphere of authority, experience, activity, study, or interest. A bailiwick (German: “Ballei”) was also the territorial division of the Teutonic Order. Here, various “Komtur(en)” formed a Ballei province.
The term survives in administrative usage in the British Crown dependencies of the Channel Islands, which are grouped for administrative purposes into two bailiwicks — Jersey (comprising the island of Jersey and uninhabited islets such as the Minquiers and Écréhous) and Guernsey (comprising the islands of Guernsey, Sark, Alderney, Brecqhou, Herm, Jethou and Lihou). A Bailiff heads each Channel Island bailiwick.
The term originated in France (bailie being the Old French term for a bailiff). Under the ancien régime in France, the bailli was the king’s representative in a bailliage, charged with the application of justice and control of the administration.
In English, the original French bailie combined with ‘-wic’, the Anglo-Saxon suffix (meaning a village) to produce a term meaning literally ‘bailiff’s village’
reeve
Originally in Anglo-Saxon England the reeve was a senior official with local responsibilities under the Crown, e.g., as the chief magistrate of a town or district. Subsequently, after the Norman conquest, it was an office held by a man of lower rank, appointed as manager of a manor and overseer of the peasants. In this later role, historian H. R. Loyn observes, “he is the earliest English specialist in estate management”.[1]
Before the Conquest, a reeve (Old English ġerēfa; similar to the titles greve/gräfe in the Low Saxon languages of Northern Germany) was an administrative officer who generally ranked lower than the ealdorman or earl. The Old English word ġerēfa was originally a general term, but soon acquired a more technical meaning.
Land was divided into a large number of hides—an area containing enough farmable land to support one household. Ten hides constituted a tithings, and the families living upon it (in theory, 10 families) were obliged to undertake an early form of neighbourhood watch, by a collective responsibility system called frankpledge.
Tithings were organised into groups of 10, called hundreds due to containing 100 hides; in modern times, these ancient hundreds still mostly retain their historic boundaries, despite each generally now containing vastly more than a mere 100 families. Each hundred was supervised by a constable, and groups of hundreds were combined to form shires, with each shire being under the control of an earl. Each unit had a court, and an officer to implement decisions of that court: the reeve. Thus different types of reeves were attested, including high-reeve, town-reeve, port-reeve, shire-reeve (predecessor to the sheriff[2]), reeve of the hundred, and the reeve of a manor.
The word is often rendered in Latin as prefectus (Modern English prefect), by the historian Bede, and some early Anglo-Saxon charters. West-Saxon charters prefer to reserve the term prefectus for the ealdormen (earls) themselves.
After the Norman conquest, feudalism was introduced, forming a parallel administrative system to the local courts. The feudal system organised land on a manorial basis, with stewards acting as managers for the landlords. The Norman term describing the court functionary—bailiff—came to be used for reeves associated with lower level courts, and with the equivalent role in the feudal courts of landlords.
Manor
A manor in English law is an estate in land to which is incident the right to hold a court termed court baron, that is to say a manorial court. The proper unit of tenure under the feudal system is the fee (or fief), on which the manor became established through the process of time, akin to the modern establishment of a “business” upon a freehold site. The manor is nevertheless often described as the basic feudal unit of tenure and is historically connected with the territorial divisions of the march, county, hundred, parish and township.
The legal theory of the origin of manors refers them to a grant from the crown of a fee from the monarch’s allodial lands, as stated in the following extract from Perkins’s Treatise on the laws of England:
“The beginning of a manor was when the king gave a thousand acres of land, or greater or lesser parcel of land, unto one of his subjects and his heirs, which tenure is knight service at the least. And the donee did perhaps build a mansion house upon parcel of the same land, and of 20 acres, parcel of that which remained, or of a greater or lesser parcel, before the statute of Quia emptores did enfeoff a stranger to hold of him and his heirs to plough 10 acres of land, parcel of that which remained in his possession, and did enfeoff another of another parcel thereof to go to war with him against the Scots etc., and so by continuance of time made a manor”.
Allodial
Allodial title constitutes ownership of real property (land, buildings and fixtures) that is independent of any superior landlord. Allodial title is related to the concept of land held “in allodium”, or land ownership by occupancy and defense of the land. Historically, much of land was uninhabited and could therefore be held “in allodium”.[1] In the modern developed world, true allodial title is only possible for nation state governments.[1] Although the word “allodial” has been used in the context of private ownership in a few states of the United States, this ownership is still restricted by governmental authority; the word “allodial” in these cases describes land with fewer but still significant governmental restrictions.[1]
Sherif
Throughout Norman England, the Saxon and Norman populations gradually mixed, and reeve came to be limited to shire-level courts (hence sheriff as a contraction of “shire-reeve”), while bailiff was used in relation to the lower courts.
The word “sheriff” is a contraction of the term “shire reeve”. The term, from the Old English scīrgerefa, designated a royal official responsible for keeping the peace (a “reeve”) throughout a shire or county on behalf of the king.[1][2] The term was preserved in England notwithstanding the Norman Conquest. The office of sheriff had its origins in the 10th century; the office reached the height of its power under the Norman kings. While the sheriffs originally had been men of great standing at court, the thirteenth century saw a process whereby the office devolved on significant men within each county, usually landowners
Lex loci contractus
In the conflict of laws, the lex loci contractus is the Latin term for “law of the place where the contract is made”.
comes before a court and all the main features of the case are local, the court will apply the lex fori, the prevailing municipal law, to decide the case. But if there are “foreign” elements to the case, the forum court may be obliged under the conflict of laws system to consider:
whether the forum court has jurisdiction to hear the case (see the problem of forum shopping);
it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legal classes; and
then apply the choice of law rules to decide which law is to be applied to each class.
The lex loci contractus is one of the possible choice of law rules applied to cases testing the validity of a contract. For example, suppose that a person domiciled in Canada and a person habitually resident in France, make a contract by e-mail. They agree to meet in New York State to record a CD of hip hop music. The possibly relevant choice of law rules would be:
the lex domicilii and law of habitual residence to determine whether the parties had the capacity to enter into the contract;
the lex loci contractus which could be difficult to establish since neither party left his own jurisdiction (reliance on postal rules for offer and acceptance in the several putative leges causae might produce different results);
the lex loci solutionis might be the most relevant since New York is the most closely connected to the substance of the obligations assumed;
the proper law; and
the lex fori which might have public policy issues if, say, one of the parties was an infant.
Forum Shopping
quially, forum shopping is the practice adopted by some litigants of having their legal case heard in the court thought most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as “plaintiff-friendly” and so have attracted litigation even when there is little or no connection between the legal issues and the jurisdiction in which they are to be litigated.
When a case is filed before a court, the court decides whether it has personal and subject matter jurisdiction, and if so, whether it is the most appropriate forum or venue. Under the doctrine of forum non conveniens, Latin for “inappropriate forum”, a judge has a discretion to transfer a case if the court selected is not the most convenient one. If the courts in two states would accept civil jurisdiction, the plaintiff must be able to show that justice requires the trial to take place in the forum suggested by the plaintiff.
The plaintiff might have selected one forum on the following grounds:
The forum is not convenient to the defendant or his witnesses. There may be problems of expense of travel, health, or visa or entry permit.
The court, the judge, or the law is most likely to favour the plaintiff’s case.
The defendant may take the following actions to seek a change of venue:
The defendant may petition the forum court that it should reject the jurisdiction and petition to transfer the case to an allegedly more convenient forum; or
If a case has been filed in another jurisdiction, the defendant may seek injunctive relief against the plaintiff in a second state, requiring that the plaintiff discontinue the action in the first forum and instead submit the case for hearing in this allegedly more convenient forum.
In both instances, the first step is to determine whether the first instance forum is the natural forum, or whether the forum has the closest connection with the action and the parties. The court adjudicates whether there is another forum that is more appropriate under the doctrine of comity. The current forum court must respect the right of a foreign court to assume jurisdiction. A court must balance the interests of the parties, since there is injustice not only when a plaintiff is allowed to pursue the action in a forum inconvenient to the defendant, but also when a plaintiff is not allowed a timely trial.
Generally, the court will not grant a petition to transfer or an injunction if the grant unjustly will deprive the plaintiff of advantages in the first instance forum. Nevertheless, a real and substantial connection between the venue and the cause(s) of action should exist to provide defendants some protection against being pursued in jurisdictions that have little or no connection with the transaction or the parties.
Injunction
An injunction is an equitable remedy in the form of a court order that compels a party to do or refrain from specific acts. A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment. They can also be charged with contempt of court. Counterinjunctions are injunctions that stop or reverse the enforcement of another injunction.
The injunction is an equitable remedy,[1] that is, a remedy that originated in the English courts of equity. Like other equitable remedies, it has traditionally been given when a wrong cannot be effectively remedied by an award of money damages. (The doctrine that reflects this is the requirement that an injunction can be given only when there is “no adequate remedy at law.”) Injunctions are intended to make whole again someone whose rights have been violated.
Contempt of Court
Contempt of court, often referred to simply as “contempt”, is the offence of being disobedient to or discourteous towards a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the court.[1][2] It manifests itself in willful disregard of or disrespect for the authority of a court of law, which is often behavior that is illegal because it does not obey or respect the rules of a law court.[3][4]
There are broadly two categories of contempt: being rude or disrespectful to legal authorities in the courtroom, or wilfully failing to obey a court order.[5] Contempt proceedings are especially used to enforce equitable remedies, such as injunctions.[6]
When a court decides that an action constitutes contempt of court, it can issue a court order that in the context of a court trial or hearing declares a person or organization to have disobeyed or been disrespectful of the court’s authority, called “found” or “held” in contempt; this is the judge’s strongest power to impose sanctions for acts that disrupt the court’s normal process.
Right to a Fair Trial
Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, the Sixth Amendment to the United States Constitution, and Article 6 of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world. There is no binding international law that defines what is not a fair trial; for example, the right to a jury trial and other important procedures vary from nation to nation.[1]
The right to fair trial is very helpful[clarification needed] in numerous declarations which represent customary international law, such as the Universal Declaration of Human Rights (UDHR).[2] Though the UDHR enshrines some fair trial rights, such as the presumption of innocence until the accused is proven guilty, in Articles 6, 7, 8 and 11,[3] the key provision is Article 10 which states that:
“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”[4]
Some years after the UDHR was adopted,[when?] the right to a fair trial was defined in more detail in the International Covenant on Civil and Political Rights (ICCPR). The right to a fair trial is protected in Articles 14 and 16 of the ICCPR which is binding in international law on those states that are party to it.[5] Article 14(1) establishes the basic right to a fair trial, article 14(2) provides for the presumption of innocence, and article 14(3) sets out a list of minimum fair trial rights in criminal proceedings. Article 14(5) establishes the right of a convicted person to have a higher court review the conviction or sentence, and article 14(7) prohibits double jeopardy.[6] Article 14(1) states that:
“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”[7]
Offer and Acceptance
Offer and acceptance are elements required for the formation of a legally binding contract: the expression of an offer to contract on certain terms by one person (the “offeror”) to another person (the “offeree”), and an indication by the offeree of its acceptance of those terms. The other elements traditionally required for a legally binding contract are (i) consideration and (ii) an intention to be legally bound.
Offer and acceptance analysis is a traditional approach in contract law. The offer and acceptance formula, developed in the 19th century, identifies a moment of formation when the parties are of one mind. This classical approach to contract formation has been weakened by developments in the law of estoppel, misleading conduct, misrepresentation and unjust enrichment.
Treitel defines an offer as “an expression of willingness to contract on certain terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed”, the “offeree”.[1] An offer is a statement of the terms on which the offeror is willing to be bound. It is the present contractual intent to be bound by a contract with definite and certain terms communicated to the offeree.
A unilateral contract is created when someone offers to do something “in return for” the performance of the act stipulated in the offer.[4] In this regard, acceptance does not have to be communicated and can be accepted through conduct by performing the act.[5] Nonetheless, the person performing the act must do it in reliance on the offer.[6]
A unilateral contract can be contrasted with a bilateral contract, where there is an exchange of promises between two parties. For example, when (A) promises to sell her car and (B) promises to buy the car.
Intension to be Legally Bound
Intention to be legally bound, otherwise “intention to create legal relations”,[1] is a concept used in contract law, particularly English contract law, to denote whether a court should presume that parties to an agreement wish it to be enforceable at law.
A contract is a legally binding agreement. Once an offer has been accepted, there is an agreement, but not necessarily a contract. The element that converts any agreement into a true contract is “intention to create legal relations”. The courts seek evidence that the parties to the agreement intended that it should be governed by, and subject to, the law of contract; so that the agreement gives rise to legal consequences. Each party thus adopts a legal obligation, and each may seek a remedy in the event of breach.
Meeting of the Minds
Meeting of the minds (also referred to as mutual agreement, mutual assent or consensus ad idem) is a phrase in contract law used to describe the intentions of the parties forming the contract. In particular it refers to the situation where there is a common understanding in the formation of the contract. Formation of a contract is initiated with a proposal or offer.[1] This condition or element is often considered a requirement to the formation of a contract.
n the law of contract the use of moral phraseology led to equal confusion, as I have shown in part already, but only in part. Morals deal with the actual internal state of the individual’s mind, what he actually intends. From the time of the Romans down to now, this mode of dealing has affected the language of the law as to contract, and the language used has reacted upon the thought. We talk about a contract as a meeting of the minds of the parties, and thence it is inferred in various cases that there is no contract because their minds have not met; that is, because they have intended different things or because one party has not known of the assent of the other. Yet nothing is more certain than that parties may be bound by a contract to things which neither of them intended, and when one does not know of the other’s assent. Suppose a contract is executed in due form and in writing to deliver a lecture, mentioning no time. One of the parties thinks that the promise will be construed to mean at once, within a week. The other thinks that it means when he is ready. The court says that it means within a reasonable time. The parties are bound by the contract as it is interpreted by the court, yet neither of them meant what the court declares that they have said. In my opinion no one will understand the true theory of contract or be able even to discuss some fundamental questions intelligently until he has understood that all contracts are formal, that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties’ having meant the same thing but on their having said the same thing.[5]
Evidence
The law of evidence also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision. The trier of fact is a judge in bench trials, or the jury in any cases involving a jury.[1] The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation. The rules vary depending upon whether the venue is a criminal court, civil court, or family court, and they vary by jurisdiction.
The quantum of evidence is the amount of evidence needed; the quality of proof is how reliable such evidence should be considered. Important rules that govern admissibility concern hearsay, authentication, relevance, privilege, witnesses, opinions, expert testimony, identification and rules of physical evidence. There are various standards of evidence or standards showing how strong the evidence must be to meet the legal burden of proof in a given situation, ranging from reasonable suspicion to preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt.
There are several types of evidence, depending on the form or source. Evidence governs the use of testimony (e.g., oral or written statements, such as an affidavit), exhibits (e.g., physical objects), documentary material, or demonstrative evidence, which are admissible (i.e., allowed to be considered by the trier of fact, such as jury) in a judicial or administrative proceeding (e.g., a court of law).
Trier of Fact
A trier of fact, or finder of fact, is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.[1] Various aspects of a case that are not in controversy may be the “facts of the case” and are determined by the agreement of the separate parties; the trier of fact need not decide such issues.
Fact Finding
Fact-finding is the job of a person or group of persons in a judicial or administrative proceeding that has or have the responsibility of determining the facts relevant to decide a controversy. The term trier of fact generally denotes the same function.[1] The process is an extremely important part of the communication process.[2]
Verdict
In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge.[1] In a bench trial, the judge’s decision near the end of the trial is simply referred to as a finding.[2] In England and Wales, a coroner’s findings are called verdicts (see Coroner#Verdict).
The term “verdict”, from the Latin veredictum, literally means “to say the truth” and is derived from Middle English verdit, from Anglo-Norman: a compound of ver (“true,” from the Latin vērus) and dit (“speech,” from the Latin dictum, the neuter past participle of dīcere, to say).
Law of Obligations
Vinculum Iuris
The law of obligations is one branch of private law under the civil law legal system and so-called “mixed” legal systems. It is the body of rules that organizes and regulates the rights and duties arising between individuals. The specific rights and duties are referred to as obligations, and this area of law deals with their creation, effects, and extinction.
An obligation is a legal bond (vinculum iuris) by which one or more parties (obligants) are bound to act or refrain from acting. An obligation thus imposes on the obligor a duty to perform, and simultaneously creates a corresponding right to demand performance by the obligee to whom performance is to be tendered. Obligations may be civil, which are enforceable by action in a court of law, or natural, which imply moral duties but are unenforceable unless the obligor consents.
Delict
A Willful Wrong or Negligent Wrong
Delict (from Latin dēlictum, past participle of dēlinquere ‘to be at fault, offend’) is a term in civil law jurisdictions for a civil wrong consisting of an intentional or negligent breach of duty of care that inflicts loss or harm and which triggers legal liability for the wrongdoer; however, its meaning varies from one jurisdiction to another. Other civil wrongs include breach of contract and breach of trust. Liability is imposed on the basis of moral responsibility, i.e. a duty of care or to act, and fault (culpa) is the main element of liability. The term is used in mixed legal systems such as Scotland, South Africa, Louisiana and the Philippines, but tort is the equivalent legal term used in common law jurisdictions.
Tort
A tort, in common law jurisdictions, is a civil wrong[1] that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act. The person who commits the act is called a tortfeasor. Although crimes may be torts, the cause of legal action is not necessarily a crime, as the harm may be due to negligence which does not amount to criminal negligence. The victim of the harm can recover their loss as damages in a lawsuit. In order to prevail, the plaintiff in the lawsuit, commonly referred to as the injured party, must show that the actions or lack of action was the legally recognizable cause of the harm. The equivalent of tort in civil law jurisdictions is delict.
Legal injuries are not limited to physical injuries and may include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. Torts comprise such varied topics as auto accidents, false imprisonment, defamation, product liability, copyright infringement, and environmental pollution (toxic torts). While many torts are the result of negligence, tort law also recognizes intentional torts, where a person has intentionally acted in a way that harms another, and in a few cases (particularly for product liability in the United States) “strict liability” which allows recovery without the need to demonstrate negligence.
Tort law is different from criminal law in that: (1) torts may result from negligent as well as intentional or criminal actions and (2) tort lawsuits have a lower burden of proof such as preponderance of evidence rather than beyond a reasonable doubt. Sometimes a plaintiff may prevail in a tort case even if the person who allegedly caused harm was acquitted in an earlier criminal trial. For example, O. J. Simpson was acquitted in criminal court of murder but later found liable for the tort of wrongful death.
Burden of Proof
The burden of proof (Latin: onus probandi) is the duty of a party in a trial to produce the evidence that will shift the conclusion away from the default position, to that party’s own position. In a legal dispute, one party is initially presumed to be correct and gets the benefit of the doubt, while the other side bears the burden of proof. When a party bearing the burden of proof meets their burden, the burden of proof switches to the other side. Burdens may be of different kinds for each party, in different phases of litigation. The burden of production is a minimal burden to produce at least enough evidence for the trier of fact to consider a disputed claim.[1]:16-17 After litigants have met the burden of production and their claim is being considered by a trier of fact, they have the burden of persuasion, that enough evidence has been presented to persuade the trier of fact that their side is correct. There are different standards of persuasiveness ranging from a preponderance of the evidence, where there is just enough evidence to tip the balance, to proof beyond a reasonable doubt, as in United States criminal courts.[1]:17
The burden of proof is usually on the person who brings a claim in a dispute. It is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, a translation of which in this context is: “the necessity of proof always lies with the person who lays charges.”[2]
Interdict
In Catholic canon law, an interdict /ˈɪntərdɪkt/ is an ecclesiastical censure that prohibits certain active Church individuals or groups from participating in certain rites.
Absolute Monarchy
- The King ‘IS’ the Rules.
- Subordinates cannot limit the Kings Power.
- The King is above the law of commoners.
Throughout much of European history, the divine right of kings was the theological justification for absolute monarchy. Many European monarchs, such as those of Russia, claimed supreme autocratic power by divine right, and that their subjects had no rights to limit their power.
In Ancient Egypt, the Pharaoh wielded absolute power over the country and was considered a living god by his people. In ancient Mesopotamia, many rulers of Assyria, Babylonia and Sumer were absolute monarchs as well. In ancient and medieval India, rulers of the Maurya, Satahavana, Gupta and Chalukya Empires, as well as other major and minor empires, were considered absolute monarchs. In the Khmer Empire, the kings were called “Devaraja” and “Chakravartin” (King of the world), and exercised absolute power over the empire and people. In Kingdom of Siam, the kings were established “Somburanaya-sittiraj” (King is the rules).
Absolute monarchy, or despotic monarchy,[1][2] is a form of monarchy in which one ruler has supreme authority and where that authority is not restricted by any written laws, legislature, or customs.[3] These are often, but not always, hereditary monarchies. In contrast, in constitutional monarchies, the head of state’s authority derives from and is legally bounded or restricted by a constitution or legislature.
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed.[1] These rules together make up, i.e. constitute, what the entity is. When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are written down in a single comprehensive document, it is said to embody a codified constitution. Some constitutions (such as the constitution of the United Kingdom) are uncodified, but written in numerous fundamental Acts of a legislature, court cases or treaties.[2]
Limited by Guarantee
Unlike a company limited by shares, a guarantee company has no share capital or shareholders. Instead it has members who undertake to contribute a nominal amount towards any shortfall in the company’s assets to settle its debts in the event of its being wound up.
Limited Liability company
Protection of personal assets. One of the most important legal benefits is the safeguarding of personal assets against the claims of creditors and lawsuits. Sole proprietors and general partners in a partnership are personally and jointly responsible for all the liabilities of a business such as loans, accounts payable, and legal judgments. In a corporation, however, stockholders, directors and officers typically are not liable for the company’s debts and obligations. They are limited in liability to the amount they have invested in the corporation. For example, if a shareholder purchased $100 in stock, no more than $100 can be lost.
If a shareholder of a corporation is personally involved in a lawsuit or bankruptcy, these assets may be protected. A creditor of a shareholder of a corporation or LLC cannot seize the assets of the company. However, the creditor can seize ownership shares in the corporation, as they are considered a personal asset.
Flow Through Entity
A flow-through entity (FTE) is a legal entity where income “flows through” to investors or owners; that is, the income of the entity is treated as the income of the investors or owners. Flow-through entities are also known as pass-through entities or fiscally-transparent entities. Depending on the local tax regulations, this structure can avoid dividend tax and double taxation because only owners or investors are taxed on the revenue. Technically, for tax purposes, flow-through entities are considered “non-entities” because they are not taxed; rather, taxation “flows-through” to another tax return.
Common types of FTEs are general partnerships, limited partnerships and limited liability partnerships. In the United States, additional types of FTE include S corporations, income trusts and limited liability companies.
S Corporation
An S corporation, for United States federal income tax purposes, is a closely held corporation (or, in some cases, a limited liability company or a partnership) that makes a valid election to be taxed under Subchapter S of Chapter 1 of the Internal Revenue Code. In general, S corporations do not pay any federal income taxes. Instead, the corporation’s income or losses are divided among and passed through to its shareholders. The shareholders must then report the income or loss on their own individual income tax returns.
The term “S corporation” means a “small business corporation” which has made an election under § 1362(a) to be taxed as an S corporation.[2] A corporation is “eligible” if it:
Has no more than 100 shareholders,
Has shareholders who are all individuals (exceptions are made for various tax exempt organizations, estates, and trusts)
Has no nonresident aliens as shareholders, and
Has only one class of stock.[3][4]
A limited liability company (LLC) is eligible to be taxed as an S corporation under the check-the-box regulations at § 301.7701-2. The LLC first elects to be taxed as a corporation, at which point it becomes a corporation for tax purposes; then it makes the S corporation election under section 1362(a).
Joint-Stock-Company
A joint-stock company is a business entity in which different stocks can be bought and owned by shareholders. Each shareholder owns company stock in proportion, evidenced by their shares (certificates of ownership).[1] That allows for the unequal ownership of a business with some shareholders owning more of a company than others. Shareholders are able to transfer their shares to others without any effects to the continued existence of the company.[2]
In modern-day corporate law, the existence of a joint-stock company is often synonymous with incorporation (possession of legal personality separate from shareholders) and limited liability (shareholders are liable for the company’s debts only to the value of the money they invested in the company). Therefore, joint-stock companies are commonly known as corporations or limited companies.
Legal Personality
To have legal personality means to be capable of holding legal rights and obligations[1][2] within a certain legal system, such as entering into contracts, suing, and being sued.[3] Legal personality is a prerequisite to legal capacity, the ability of any legal person to amend (enter into, transfer, etc.) rights and obligations. In international law, consequently, legal personality is a prerequisite for an international organization to be able to sign international treaties in its own name.
A holder of legal personality is called as a person (Latin: persona). Persons are of two kinds: natural persons (also called physical persons) and juridical persons (also called juridic, juristic, artificial, legal, or fictitious persons, Latin: persona ficta) – entities such as corporations, which are treated in law as if they are persons.[1][4][5] While human beings acquire legal personhood when they are born, juridical persons do so when they are incorporated in accordance with law.
Artificial personality, juridical personality, or juristic personality is the characteristic of a non-living entity regarded by law to have the status of personhood.
A juridical or artificial person (Latin: persona ficta; also juristic person) has a legal name and has certain rights, protections, privileges, responsibilities, and liabilities in law, similar to those of a natural person. The concept of a juridical person is a fundamental legal fiction. It is pertinent to the philosophy of law, as it is essential to laws affecting a corporation (corporations law).
Corporate Personhood
Corporate personhood is the legal notion that a corporation, separately from its associated human beings (like owners, managers, or employees), has at least some of the legal rights and responsibilities enjoyed by natural persons (physical humans).[1] For example, corporations have the right to enter into contracts with other parties and to sue or be sued in court in the same way as natural persons or unincorporated associations of persons. In a U.S. historical context, the phrase ‘Corporate Personhood’ refers to the ongoing legal debate over the extent to which rights traditionally associated with natural persons should also be afforded to corporations
Natural Person
In jurisprudence, a natural person is a person (in legal meaning. i.e., one who has its own legal personality) that is an individual human being, as opposed to a legal person, which may be a private (i.e., business entity or non-governmental organization) or public (i.e., government) organization. Historically, a human being was not necessarily a natural person in some jurisdictions where a slave was a thing (subject of a property right) rather than a person.
In many cases, fundamental human rights are implicitly granted only to natural persons. For example, the Nineteenth Amendment to the United States Constitution, which states a person cannot be denied the right to vote based on their biological sex, or Section Fifteen of the Canadian Charter of Rights and Freedoms, which guarantees equality rights, apply to natural persons only. Another example of the distinction between natural and legal persons is that a natural person can hold public office, but a corporation cannot.
A corporation or non-governmental organization can, however, file a lawsuit or own property as a legal person.
Personality Rights
The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the right of publicity can survive the death of the individual (to varying degrees depending on the jurisdiction).
Natural and Legal Rights
Natural and legal rights are two types of rights. Legal rights are those bestowed onto a person by a given legal system (i.e., rights that can be modified, repealed, and restrained by human laws). Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and therefore universal and inalienable (i.e., rights that cannot be repealed or restrained by human laws).
The concept of natural law is closely related to the concept of natural rights. During the Age of Enlightenment, the concept of natural laws was used to challenge the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government – and thus legal rights – in the form of classical republicanism. Conversely, the concept of natural rights is used by others to challenge the legitimacy of all such establishments.
Natural rights, in particular, are considered beyond the authority of any government or international body to dismiss. The 1948 United Nations Universal Declaration of Human Rights is an important legal instrument enshrining one conception of natural rights into international soft law. Natural rights were traditionally viewed as exclusively negative rights,[2] whereas human rights also comprise positive rights.[3] Even on a natural rights conception of human rights, the two terms may not be synonymous.
Negative and Positive Rights
Negative and positive rights (not to be confused with negative and positive liberties) are rights that respectively oblige either action (positive rights) or inaction (negative rights). These obligations may be of either a legal or moral character. The notion of positive and negative rights may also be applied to liberty rights.
To take an example involving two parties in a court of law: Adrian has a negative right to x against Clay if and only if Clay is prohibited from acting upon Adrian in some way regarding x. In contrast, Adrian has a positive right to x against Clay if and only if Clay is obliged to act upon Adrian in some way regarding x. A case in point, if Adrian has a negative right to life against Clay, then Clay is required to refrain from killing Adrian; while if Adrian has a positive right to life against Clay, then Clay is required to act as necessary to preserve the life of Adrian.
Rights considered negative rights may include civil and political rights such as freedom of speech, life, private property, freedom from violent crime, freedom of religion, habeas corpus, a fair trial, freedom from slavery.
Rights considered positive rights, as initially proposed in 1979 by the Czech jurist Karel Vasak, may include other civil and political rights such as police protection of person and property and the right to counsel, as well as economic, social and cultural rights such as food, housing, public education, employment, national security, military, health care, social security, internet access, and a minimum standard of living. In the “three generations” account of human rights, negative rights are often associated with the first generation of rights, while positive rights are associated with the second and third generations.
Liberty Right vrs Claim Right
A person’s liberty right to x consists in his freedom to do or have x, while a person’s claim right to x consists in an obligation on others to allow or enable him to do or have x. For example, to assert a liberty right to free speech is to assert that you have permission to speak freely; that is, that you are not doing anything wrong by speaking freely.
To illustrate, a world with only liberty rights, without any claim rights, would by definition be a world wherein everything was permitted and no act or omission was prohibited; a world wherein none could rightly claim that they had been wronged or neglected. Conversely, a world with only claim rights and no liberty rights would be a world wherein nothing was merely permitted, but all acts were either obligatory or prohibited. The assertion that people have a claim right to liberty – i.e. that people are obliged only to refrain from preventing each other from doing things which are permissible, their liberty rights limited only by the obligation to respect others’ liberty – is the central thesis of liberal theories of justice.
1948 United Nations Declaration of Human Rights
Human rights are moral principles or norms,[1] which describe certain standards of human behaviour, and are regularly protected as legal rights in municipal and international law.[2] They are commonly understood as inalienable[3] fundamental rights “to which a person is inherently entitled simply because she or he is a human being,”[4] and which are “inherent in all human beings”[5] regardless of their nation, location, language, religion, ethnic origin or any other status.[3] They are applicable everywhere and at every time in the sense of being universal,[1] and they are egalitarian in the sense of being the same for everyone.[3] They require empathy and the rule of law[6] and impose an obligation on persons to respect the human rights of others.[1][3] They should not be taken away except as a result of due process based on specific circumstances;[3] for example, human rights may include freedom from unlawful imprisonment, torture, and execution.[7]
The true forerunner of human rights discourse was the concept of natural rights which appeared as part of the medieval natural law tradition that became prominent during the European Enlightenment with such philosophers as John Locke, Francis Hutcheson, and Jean-Jacques Burlamaqui, and which featured prominently in the political discourse of the American Revolution and the French Revolution.[6] From this foundation, the modern human rights arguments emerged over the latter half of the twentieth century,[12] possibly as a reaction to slavery, torture, genocide, and war crimes,[6] as a realization of inherent human vulnerability and as being a precondition for the possibility of a just society.[5]
Natural Law
Natural law (Latin: ius naturale, lex naturalis) is a philosophy that certain rights are inherent by virtue of human nature endowed by nature, God, or a transcendent source, and can be understood universally through human reason. Historically, natural law refers to the use of reason to analyze human nature to deduce binding rules of moral behavior from nature’s or God’s creation of reality and mankind. The law of nature, as determined by nature, is universal.[1]
Natural law first appeared in ancient Greek philosophy,[2] was alluded to in the Bible, and was subsequently developed in the Middle Ages by Catholic philosophers such as Albert the Great, and Thomas Aquinas.
Although natural law is often confused with common law, the two are distinct. Even though natural law theories have exercised a profound influence on the development of English common law,[3] the latter is not based on inherent rights, but is the legal tradition whereby certain rights or values are legally recognized by virtue of already having judicial recognition or articulation
Ius naturale
Ius naturale is Latin for “natural law”, the laws common to all beings. Roman jurists wondered why the ius gentium (the laws which applied to foreigners and citizens alike) was in general accepted by all people living in the Empire. Their conclusion was that these laws made sense to a reasonable person and thus were followed. All laws which would make sense to a normal person were called ius naturale.
Slavery, for example, was part of the empire-wide ius gentium because slavery was known and accepted as a normal social institution in all parts of the known world. Nevertheless, as forcing people to work for others was a human-produced condition, it was not considered natural and, hence, was part of the ius gentium but not the ius naturale. The ius naturale of the Roman jurists is not the same as implied by the modern sense of natural law as something derived from pure reason. As Sir Henry Sumner Maine puts it, “it was never thought of as founded on quite untested principles. The notion was that it underlay existing law and must be looked for through it”.[1] Romans gave to Natural law a great importance in their daily lives . They mentioned once “ius naturale est quo natura omnia animalia docuit” which means the right that nature gave to all living things.[citation n
Ius Gentium
The ius gentium or jus gentium (Latin, “law of nations”) is a concept of international law within the ancient Roman legal system and Western law traditions based on or influenced by it. The ius gentium is not a body of statute law or a legal code,[1] but rather customary law thought to be held in common by all gentes (“peoples” or “nations”) in “reasoned compliance with standards of international conduct.”[2]
Following the Christianization of the Roman Empire, canon law also contributed to the European ius gentium.[3] By the 16th century, the shared concept of the ius gentium disintegrated as individual European nations developed distinct bodies of law, the authority of the Pope declined, and colonialism created subject nations outside the West.[4]
Twelve Tables
According to Roman tradition, the Law of the Twelve Tables (Latin: Leges Duodecim Tabularum or Duodecim Tabulae) was the legislation that stood at the foundation of Roman law. The Tables consolidated earlier traditions into an enduring set of laws.[1][2]
The Twelve Tables are sufficiently comprehensive that their substance has been described as a ‘code’,[3] although modern scholars consider this characterisation exaggerated.[2] The Tables were a sequence of definitions of various private rights and procedures. They generally took for granted such things as the institutions of the family and various rituals for formal transactions. The provisions were often highly specific and diverse, and lack an intelligible system or order.[4]
The Twelve Tables of Roman society were said by the Romans to have come about as a result of the long social struggle between patricians and plebeians. After the expulsion of the last king of Rome, Tarquinius Superbus, the Republic was governed by a hierarchy of magistrates. Initially, only patricians were eligible to become magistrates and this, among other plebeian complaints, was a source of discontent for plebeians. In the context of this unequal status, plebeians would take action to secure concessions for themselves using the threat of secession. They would threaten to leave the city with the consequence that it would grind to a halt, as the plebeians were Rome’s labor force
Civil Law
The purpose of codification is to provide all citizens with manners and written collection of the laws which apply to them and which judges must follow.
Civil law, civilian law, or Roman law is a legal system originating in Europe, intellectualized within the framework of late Roman law, and whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law. This can be contrasted with common law systems whose intellectual framework comes from judge-made decisional law which gives precedential authority to prior court decisions on the principle that it is unfair to treat similar facts differently on different occasions (doctrine of judicial precedent, or stare decisis).[1][2]
Historically, a civil law is the group of legal ideas and systems ultimately derived from the Codex Justinianus, but heavily overlaid by Napoleonic, Germanic, canonical, feudal, and local practices,[3] as well as doctrinal strains such as natural law, codification, and legal positivism.
Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules.[4] It holds case law to be secondary and subordinate to statutory law. When discussing civil law, one should keep in mind the conceptual difference between a statute and a codal article. The marked feature of civilian systems is that they use codes with brief text that tend to avoid factually specific scenarios.[5] Code articles deal in generalities and thus stand at odds with statutory schemes which are often very long and very detailed.
Canon Law
Canon law is the body of laws and regulations made by ecclesiastical authority (Church leadership), for the government of a Christian organization or church and its members. It is the internal ecclesiastical law, or operational policy, governing the Catholic Church (both the Latin Church and the Eastern Catholic Churches), the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion.[1] The way that such church law is legislated, interpreted and at times adjudicated varies widely among these three bodies of churches. In all three traditions, a canon was originally a rule adopted by a church council; these canons formed the foundation of canon law.
Greek kanon / Ancient Greek: κανών,[2] Arabic Qanun / قانون, Hebrew kaneh / קנה, “straight”; a rule, code, standard, or measure; the root meaning in all these languages is “reed” (cf. the Romance-language ancestors of the English word “cane”).
Halakha
Halakha (/hɑːˈlɔːxə/;[1] Hebrew: הֲלָכָה, Sephardic: [halaˈχa]; also transliterated as halacha, halakhah, halachah or halocho) (Ashkenazic: [haˈloχo]) is the collective body of Jewish religious laws derived from the Written and Oral Torah. It includes the 613 mitzvot (“commandments”), subsequent Talmudic and rabbinic law and the customs and traditions compiled in the Shulchan Aruch (literally “Prepared Table”, but more commonly known as the “Code of Jewish Law”).
Judaism classically draws no distinction in its laws between religious and non-religious life; Jewish religious tradition does not distinguish clearly between religious, national, racial, or ethnic identities.[2] Halakha guides not only religious practices and beliefs, but numerous aspects of day-to-day life. Halakha is often translated as “Jewish Law,” although a more literal translation might be “the way to behave” or “the way of walking.” The word derives from the root that means “to behave” (also “to go” or “to walk”).
Historically, in the diaspora, halakha served many Jewish communities as an enforceable avenue of law – both civil and religious, since there is no differentiation in classical Judaism. Since the Age of Enlightenment, emancipation, and haskalah, many have come to view the halakha as less binding in day-to-day life, as it relies on rabbinic interpretation, as opposed to the pure, written words recorded in the Jewish bible.
Under contemporary Israeli law, however, certain areas of Israeli family and personal status law are under the authority of the rabbinic courts and are therefore treated according to halakha. Some differences in halakha itself are found among Ashkenazi, Mizrahi, Sephardi, Yemenite, and other Jews who historically lived in isolated communities, such as in Ethiopia, reflecting the historic and geographic diversity of various Jewish communities within the Diaspora.
The word halakha is derived from the Hebrew root halakh – “to walk” or “to go”.[3] Taken literally, therefore, “halakha” translates as “the way to walk” rather than “law”. The words halakha refers to the corpus of rabbinic legal texts, or to the overall system of religious law.
Imperium
Imperium is a Latin word which, in a broad sense, translates roughly as ‘power to command’. In ancient Rome, different kinds of power or authority were distinguished by different terms. Imperium referred to the ability of an individual to command the military. It is not to be confused with auctoritas or potestas, different and generally inferior types of power in the Roman Republic and Empire. Primarily used to refer to the power that is wielded, in greater or lesser degree, by an individual to whom it is delegated, the term could also be used with a geographical connotation, designating the territorial limits of that imperium. Individuals given such power were referred to as curule magistrates or promagistrates. These included the curule aedile, the praetor, the censor, the consul, the magister equitum, and the dictator.
Auctoritas
In ancient Rome, Auctoritas referred to the general level of prestige a person had in Roman society, and, as a consequence, his clout, influence, and ability to rally support around his will. Auctoritas was not merely political, however; it had a numinous content and symbolized the mysterious “power of command” of heroic Roman figures.
According to French linguist Emile Benveniste, auctor (which also gives us English “author”) is derived from Latin augeō (“to augment”). The auctor is “is qui auget”, the one who augments the act or the juridical situation of another.[1]
Auctor in the sense of “author”, comes from auctor as founder or, one might say, “planter-cultivator”. Similarly, auctoritas refers to rightful ownership, based on one’s having “produced” or homesteaded the article of property in question - more in the sense of “sponsored” or “acquired” than “manufactured”. This auctoritas would, for example, persist through an usucapio of ill-gotten or abandoned property.
Mancipatio
In Roman law, mancipatio (f. Latin manus “hand” and capere “to take hold of”) was a solemn verbal contract by which the ownership of certain types of goods, called res mancipi, was transferred.
Mancipatio was also the legal procedure for drawing up wills, emancipating children from their parents, and adoption.[1]
Res mancipi were goods important in an early agrarian society, like land, rights over land, horses, cattle and slaves. The right of ownership (dominium) for such goods was reserved to Roman citizens (Quirites) and therefore called a “quiritian” or a “quiritary” right.
The procedure of acquisition of property by scales and bronze (per aes et libram) is described as follows by Gaius: “Mancipatio is effected in the presence of not less than five witnesses, who must be Roman citizens and of the age of puberty, and also in the presence of another person of the same condition, who holds a pair of brazen scales and hence is called Libripens. The purchaser, taking hold of the thing, says: HUNC EGO HOMINEM EX IURE QUIRITIUM MEUM ESSE AIO ISQUE MIHI EMPTUS ESTO HOC AERE AENEAQUE LIBRA (I affirm that this slave is mine according to quiritary right, and he is purchased by me with this piece of bronze and scales). He then strikes the scales with the piece of bronze, and gives it to the seller as a symbol of the price” (Gaius, Institutes, I.119[2][3]).
Mancipatio existed even before the Twelve Tables. It fell into disuse during the Empire and was finally abolished by the code of Justinian.
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed.[1] These rules together make up, i.e. constitute, what the entity is. When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are written down in a single comprehensive document, it is said to embody a codified constitution. Some constitutions (such as the constitution of the United Kingdom) are uncodified, but written in numerous fundamental Acts of a legislature, court cases or treaties.[2]
Constitutions concern different levels of organizations, from sovereign states to companies and unincorporated associations. A treaty which establishes an international organization is also its constitution, in that it would define how that organization is constituted. Within states, a constitution defines the principles upon which the state is based, the procedure in which laws are made and by whom. Some constitutions, especially codified constitutions, also act as limiters of state power, by establishing lines which a state’s rulers cannot cross, such as fundamental rights.
The term constitution comes through French from the Latin word constitutio, used for regulations and orders, such as the imperial enactments (constitutiones principis: edicta, mandata, decreta, rescripta).[9] Later, the term was widely used in canon law for an important determination, especially a decree issued by the Pope, now referred to as an apostolic constitution.
Treaty
A treaty is an official, express written agreement that states use to legally bind themselves.[3] A treaty is the official document which expresses that agreement in words; and it is also the objective outcome of a ceremonial occasion which acknowledges the parties and their defined relationships.
A treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an (international) agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. Regardless of terminology, all of these forms of agreements are, under international law, equally considered treaties and the rules are the same.[1]
A treaty is null and void if it is in violation of a peremptory norm. These norms, unlike other principles of customary law, are recognized as permitting no violations and so cannot be altered through treaty obligations. These are limited to such universally accepted prohibitions as those against the aggressive use of force, genocide and other crimes against humanity, piracy, hostilities directed at civilian population, racial discrimination and apartheid, slavery and torture,[15] meaning
Jus Cogens - Peremptory Norm
A peremptory norm (also called jus cogens or ius cogens /ˌdʒʌs ˈkoʊdʒɛnz/ or /ˌjʌs/;[1] Latin for “compelling law”) is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted.
There is no universal agreement regarding precisely which norms are jus cogens nor how a norm reaches that status, but it is generally accepted that jus cogens includes the prohibition of genocide, maritime piracy, slaving in general (to include slavery as well as the slave trade), torture, refoulement and wars of aggression and territorial aggrandizement.[2] Recent scholarship has also proposed the idea of regional jus cogens.[3]
The International Criminal Tribunal for the Former Yugoslavia stated in Prosecutor v. Furundžija that there is a jus cogens for the prohibition against torture.[11] It also stated that every state is entitled “to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction.”[11] Therefore, there is universal jurisdiction over torture. The rationale for this is that “the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind.”[14]
Universal Jurisdiction
Universal jurisdiction allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused’s nationality, country of residence, or any other relation with the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage.
The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens – that certain international law obligations are binding on all states. [1]
Erga Omnes
Erga omnes is a Latin phrase which means “towards all” or “towards everyone”. In legal terminology, erga omnes rights or obligations are owed toward all. For instance a property right is an erga omnes entitlement, and therefore enforceable against anybody infringing that right. An erga omnes right (a statutory right) can here be distinguished from a right based on contract, unenforceable except against the contracting party.
In international law it has been used as a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of erga omnes norms include piracy and genocide. The concept was recognized in the International Court of Justice’s decision in the Barcelona Traction case [(Belgium v Spain) (Second Phase) ICJ Rep 1970 3 at paragraph 33]:
Jurisdictional Arbitrage
Jurisdictional arbitrage is the practice of taking advantage of the discrepancies between competing legal jurisdictions. It takes its name from arbitrage, the practice in finance of purchasing a good at a lower price in one market and selling it at a higher price in another. Just as in financial arbitrage, the attractiveness of jurisdiction arbitrage depends largely on its transaction costs, here the costs of switching legal service providers from one government to another.[1]
The lower the exit costs for leaving the jurisdiction (unrestricted emigration, cheap travel, liquidity of assets) the more desirable and feasible it is. Conversely, high entry costs into the more favourable jurisdiction are an inhibitor on jurisdictional arbitrage; certain tax havens such as Andorra grant permanent residency rights to immigrants only if they meet certain criteria. Jurisdictional arbitrage is a significant concept in modern free market anarcho-capitalism, not to be confused with anarchism per se.
Derogation
Derogation is the partial suppression of a law,[1] as opposed to abrogation—total abolition of a law by explicit repeal—and obrogation—the partial or total modification or repeal of a law by the imposition of a later and contrary one. The term is used in canon law,[1] civil law, and common law. It is sometimes used, loosely, to mean abrogation, as in the legal maxim: Lex posterior derogat priori, i.e. a subsequent law imparts the abolition of a previous one.
Derogation differs from dispensation in that it applies to the law, where dispensation applies to specific people affected by the law.
Obrogation ( Revocation )
In the canon law of the Catholic Church, obrogation is the enacting of a contrary law that is a revocation of a previous law.[1] It may also be the partial cancellation or amendment of a law, decree, or legal regulation by the imposition of a newer one.
1983-Canon 53
If decrees are contrary one to another, where specific matters are expressed, the specific prevails over the general; if both are equally specific or equally general, the one later in time[4] obrogates (Latin: obrogat[5] from obrogare[6]) the earlier insofar as it is contrary to it.[4]
Abrogation ( Repeal )
There are two basic types of repeal, a repeal with a re-enactment (or replacement) of the repealed law, or a repeal without any replacement.
Removal of secondary legislation is normally referred to as revocation rather than repeal in the United Kingdom and Ireland. Under the common law of England and Wales, the effect of repealing a statute was “to obliterate it completely from the records of Parliament as though it had never been passed.”[1] This, however, is now subject to savings provisions within the Interpretation Act 1978.
In parliamentary procedure, the motion to rescind, repeal, or annul is used to cancel or countermand an action or order previously adopted by the assembly.
Implied Repeal
The doctrine of implied repeal is a concept in constitutional theory which states that where an Act of Parliament or an Act of Congress (or of some other legislature in a common law system) conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed (i.e., no longer law). This doctrine is expressed in the Latin phrase “leges posteriores priores contrarias abrogant”.[1]
Implied repeal is to be contrasted with the express repeal of legislation by the legislative body.
Dispensation ( Exemption from obligation )
In the jurisprudence of canon law of the Catholic Church, a dispensation is the exemption from the immediate obligation of law in certain cases.[1] Its object is to modify the hardship often arising from the rigorous application of general laws to particular cases, and its essence is to preserve the law by suspending its operation in such cases.[2]
Privilege
Privilege in the canon law of the Roman Catholic Church is the legal concept whereby someone is exempt from the ordinary operation of the law over time for some specific purpose.
Papal privileges resembled dispensations, since both involved exceptions to the ordinary operations of the law. But whereas “dispensations exempt[ed] some person or group from legal obligations binding on the rest of the population or class to which they belong,”[1] “[p]rivileges bestowed a positive favour not generally enjoyed by most people.” “Thus licences to teach or to practise law or medicine, for example,”[2] were “legal privileges, since they confer[red] upon recipients the right to perform certain functions for pay, which the rest of the population [was] not [permitted to exercise.]”[3] Privileges differed from dispensations in that dispensations were for one time, while a privilege was lasting.[4] Yet, such licenses might also involve what should properly be termed dispensation, if they waived the canon law requirement that an individual hold a particular qualification to practice law or medicine, as, for example, a degree.
Indult
An indult in Catholic canon law is a permission, or privilege, granted by the competent church authority – the Holy See or the diocesan bishop, as the case may be – for an exception from a particular norm of church law in an individual case,[1] for example, members of the consecrated life seeking to be dispensed from their religious vows, or of priests and deacons who voluntarily seek to return to the lay state (usually to marry).
Consecrated Life
Consecrated life, in the canon law of the Catholic Church, is a stable form of Christian living by those faithful who are called to follow Jesus Christ in a more exacting way recognized by the Church. It “is characterized by the public profession of the evangelical counsels of poverty, chastity, and obedience, in a stable state of life recognized by the Church”.[1] The Code of Canon Law defines it as “a stable form of living by which the faithful, following Christ more closely under the action of the Holy Spirit, are totally dedicated to God who is loved most of all, so that, having been dedicated by a new and special title to his honour, to the building up of the Church, and to the salvation of the world, they strive for the perfection of charity in the service of the kingdom of God and, having been made an outstanding sign in the Church, foretell the heavenly glory.”[2]
What makes the consecrated life a more exacting way of Christian living is the public religious vows or other sacred bonds whereby the consecrated persons commit themselves, for the love of God, to observe as binding the evangelical counsels of chastity, poverty and obedience from the Gospel, or at least, in the case of consecrated virgins and widows/widowers, a vow of total chastity. The Benedictine vow as laid down in the Rule of Saint Benedict, ch. 58:17, is analogous to the more usual vow of religious institutes. Consecrated persons are not part of the hierarchy of the Catholic Church, unless they are also ordained bishops, priests or deacons.[3]
The Catechism of the Catholic Church comments: “From the very beginning of the Church there were men and women who set out to follow Christ with greater liberty, and to imitate him more closely, by practising the evangelical counsels. They led lives dedicated to God, each in his own way. Many of them, under the inspiration of the Holy Spirit, became hermits or founded religious families. Thus the Church, by virtue of her authority, gladly accepted and approved them.”[4]
Consecrated life may be lived either in institutes or individually. While those living it are either clergy (if ordained) or lay people, the state of consecrated life is neither clerical nor lay by nature.[5]
Escheat
Escheat is a common law doctrine that transfers the property of a person who died without heirs to the crown or state. It serves to ensure that property is not left in “limbo” without recognized ownership. It originally applied to a number of situations where a legal interest in land was destroyed by operation of law, so that the ownership of the land reverted to the immediately superior feudal lord.
The reversion of property to the state, or (in feudal law) to a lord, on the owner’s dying without legal heirs.
an item of property affected by this.
verb
verb: escheat; 3rd person present: escheats; past tense: escheated; past participle: escheated; gerund or present participle: escheating
1.
(of land) revert to a lord or the state by escheat.
hand over (land) as an escheat.
The power of a state to acquire title to property for which there is no owner. The most common reason that an escheat takes place is that an individual dies intestate, meaning without a valid will indicating who is to inherit his or her property, and without relatives who are legally entitled to inherit in the absence of a will. A state legislature has the authority to enact an escheat statute. In feudal England, escheat was a privilege exclusively given to the king. The policy of inheritance was to preserve the wealth of noble families by permitting one individual to inherit an entire estate. There was no writing of wills that would leave property to several heirs because that would have the effect of breaking up the estate. In addition, the law established a hierarchy of heirs who stood in line to inherit the estate. If there was no living person of a designated class to inherit, the king took the property by escheat.
By Operation of Law
The phrase “by operation of law” is a legal term that indicates that a right or liability has been created for a party, irrespective of the intent of that party, because it is dictated by existing legal principles. For example, if a person dies without a will, his or her heirs are determined by operation of law.
Events that occur by operation of law do so because courts have determined over time that the rights thus created or transferred represent what the intent of the party would have been, had they thought about the situation in advance; or because the results fulfilled the settled expectations of parties with respect to their property; or because legal instruments of title provide for these transfers to occur automatically on certain named contingencies.
Rights that arise by operation of law often arise by design of certain contingencies set forth in a legal instrument. If a life estate is created in a tract of land, and the person by whose life the estate is measured dies, title to the property reverts to the original grantor – or, possibly, to the grantor’s legal heirs – by operation of law. Nothing needs to be put in writing to affirm that this will happen.
Usucapio
Usucapio was a concept in Roman law that dealt with the acquisition of ownership of something through possession. It was subsequently developed as a principle of civil law systems, usucaption. It is similar to the common law concept of adverse possession, or acquiring land prescriptively.
usucapio was the only private method of the ius civile.[1] Ownership of a thing in Roman law was usually protected forever, until a limit of thirty years was introduced in 426 AD on actions by Theodosius – in other words, preventing the owner of a thing getting it back or seeking damages after thirty years.[2]
Usacapio was a form of acquisitive prescription – the passage of time entitled the holder to particular rights of acquisition.[2] This right is a new right, one without reference to any existing rights.[3]
Usucapio assisted two cases: where a thing had been transferred improperly (for example, transferring a res mancipi by traditio), or where the transferor of a thing did not hold proper title (for example, sale by a non-owner).[2]
There were five requirements for the acquisition of ownership by usucapio. Firstly, the claimant must have had uninterrupted possession for the required period of time. The claimant must have gained the thing with iusta causa and in good faith (bona fides). The thing claimed must be capable of ownership, and must have been at no time been stolen or taken by force.
Res Mancipi
The property of lands and houses on Italic soil, beasts of burden, slaves, and rustic and praedial servitudes are all res mancipi. Gaius goes on to say that res mancipi may only be conveyed formally, that is either by the mancipatio ceremony, on in iure cessio.
Deed
A deed (anciently “an evidence”) is any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. It is commonly associated with transferring (conveyancing) title to property. The deed has a greater presumption of validity and is less rebuttable than an instrument signed by the party to the deed. A deed can be unilateral or bilateral. Deeds include conveyances, commissions, licenses, patents, diplomas, and conditionally powers of attorney if executed as deeds. The deed is the modern descendant of the medieval charter, and delivery is thought to symbolically replace the ancient ceremony of livery of seisin.[1]
Seal
A seal is a device for making an impression in wax, clay, paper, or some other medium, including an embossment on paper, and is also the impression thus made. The original purpose was to authenticate a document.
Intaglio (with the design cut into the flat background of the stone )
Cameo (/ˈkæmioʊ/) is a method of carving an object such as an engraved gem, item of jewellery or vessel. It nearly always features a raised (positive) relief image; contrast with intaglio, which has a negative image.
Most seals have always given a single impression on an essentially flat surface, but in medieval Europe two-sided seals with two matrices were often used by institutions or rulers (such as towns, bishops and kings) to make two-sided or fully three-dimensional impressions in wax, with a “tag”, a piece of ribbon or strip of parchment, running through them. These “pendent” seal impressions dangled below the documents they authenticated, to which the attachment tag was sewn or otherwise attached (single-sided seals were treated in the same way).
Some jurisdictions consider rubber stamps[2] or specified signature-accompanying words such as “seal” or “L.S.” (abbreviation of locus sigilli, “place of the seal”) to be the legal equivalent of, i.e., an equally effective substitute for, a seal.
Conveyancing
In law, conveyancing is the transfer of legal title of real property from one person to another, or the granting of an encumbrance such as a mortgage or a lien.[1] A typical conveyancing transaction has two major phases: the exchange of contracts (when equitable interests are created) and completion (also called settlement, when legal title passes and equitable rights merge with the legal title).
The sale of land is governed by the laws and practices of the jurisdiction in which the land is located. It is a legal requirement in all jurisdictions that contracts for the sale of land be in writing. An exchange of contracts involves two copies of a contract of sale being signed, one copy of which is retained by each party. When the parties are together, both would usually sign both copies, one copy of which being retained by each party, sometimes with a formal handing over of a copy from one party to the other. However, it is usually sufficient that only the copy retained by each party be signed by the other party only — hence contracts are “exchanged”. This rule enables contracts to be “exchanged” by mail. Both copies of the contract of sale become binding only after each party is in possession of a copy of the contract signed by the other party—ie., the exchange is said to be “complete”. An exchange by electronic means is generally insufficient for an exchange, unless the laws of the jurisdiction expressly validate such signatures.
It is the responsibility of the buyer of real property to ensure that he or she obtains a good and marketable title to the land—ie., that the seller is the owner, has the right to sell the property, and there is no factor which would impede a mortgage or re-sale. Some jurisdictions have legislated some protections for the buyer, besides the ability for the buyer to do searches relating to the property.
A system of conveyancing is usually designed to ensure that the buyer secures title to the land together with all the rights that run with the land, and is notified of any restrictions in advance of purchase. Many jurisdictions have adopted a system of land registration to facilitate conveyancing and encourage reliance on public records and assure purchasers of land that they are taking good title.[2]
Encumbrance
An encumbrance is a right to, interest in, or legal liability on real property that does not prohibit passing title to the property but that diminishes its value.[1] Encumbrances can be classified in several ways. They may be financial (ex: liens) or non-financial (ex: easements, private restrictions). Alternatively, they may be divided into those that affect title (ex: lien, legal or equitable charge) or those that affect the use or physical condition of the encumbered property (ex: restrictions, easements, encroachments).[2] Encumbrances include security interests, liens, servitudes (e.g. easements, wayleaves, real covenants, profits a prendre), leases, restrictions, encroachments, and air and subsurface rights. Also, those considered as potentially making the title defeasible are encumbrances, e.g. charging orders, building orders and structure alteration. Encumbrance: charge upon or claim against land arising out of private grant or a contract.
Lien
A lien (/ˈliːn/ or /ˈliːən/)[Note 1] is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the lienee[3] and the person who has the benefit of the lien is referred to as the lienor[4] or lien holder.
The etymological root is Anglo-French lien, loyen “bond”, “restraint”, from Latin ligamen, from ligare “to bind”.
In the United States, the term lien generally refers to a wide range of encumbrances and would include other forms of mortgage or charge. In the US, a lien characteristically refers to non-possessory security interests (see generally: Security interest—categories).
In other common-law countries, the term lien refers to a very specific type of security interest, being a passive right to retain (but not sell) property until the debt or other obligation is discharged. In contrast to the usage of the term in the US, in other countries it refers to a purely possessory form of security interest; indeed, when possession of the property is lost, the lien is released.[5] However, common-law countries also recognize a slightly anomalous form of security interest called an “equitable lien” which arises in certain rare instances.
Security Interest
A security interest is a type of property interest created by agreement or by operation of law over assets to secure the performance of an obligation, usually the payment of a debt.[1] It gives the beneficiary of the security interest certain preferential rights in the disposition of secured assets. Such rights vary according to the type of security interest, but in most cases, a holder of the security interest is entitled to seize, and usually sell, the property to discharge the debt that the security interest secures.
A secured creditor takes a security interest to enforce its rights against collateral in case the debtor defaults on the obligation. If the debtor goes bankrupt, a secured creditor takes precedence over unsecured creditors in the distribution.
Collateral
In lending agreements, collateral is a borrower’s pledge of specific property to a lender, to secure repayment of a loan.[1][2] The collateral serves as a lender’s protection against a borrower’s default—that is, it can be used to offset the loan if the borrower fails to pay the principal and interest satisfactorily under the terms of the lending agreement.
Pledge
A pledge is a bailment that conveys possessory title to property owned by a debtor (the pledgor) to a creditor (the pledgee) to secure repayment for some debt or obligation and to the mutual benefit of both parties.[1][2] The term is also used to denote the property which constitutes the security. A pledge is type of security interest.
Pledge is the pignus of Roman law, from which most of the modern European-based law on the subject is derived, but is generally a feature of even the most basic legal systems. It differs from hypothecation and from the more usual mortgage in that the pledge is in the possession of the pledgee. It is similar, however, in that all three can apply to personal and real property. A pledge of personal property is known as a pawn and that of real property is called an antichresis.
Bailment
Bailment is distinguished from a contract of sale or a gift of property, as it only involves the transfer of possession and not its ownership. To create a bailment, the bailee must both intend to possess, and actually physically possess, the bailable chattel.
Bailment describes a legal relationship in common law where physical possession of personal property, or a chattel, is transferred from one person (the “bailor”) to another person (the “bailee”) who subsequently has possession of the property. It arises when a person gives property to someone else for safekeeping, and is a cause of action independent of contract or tort.
Tort
A tort, in common law jurisdictions, is a civil wrong[1] that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act.
The person who commits the act is called a tortfeasor. Although crimes may be torts, the cause of legal action is not necessarily a crime, as the harm may be due to negligence which does not amount to criminal negligence. The victim of the harm can recover their loss as damages in a lawsuit. In order to prevail, the plaintiff in the lawsuit, commonly referred to as the injured party, must show that the actions or lack of action was the legally recognizable cause of the harm. The equivalent of tort in civil law jurisdictions is delict.
Depict
Delict (from Latin dēlictum, past participle of dēlinquere ‘to be at fault, offend’) is a term in civil law jurisdictions for a civil wrong consisting of an intentional or negligent breach of duty of care that inflicts loss or harm and which triggers legal liability for the wrongdoer; however, its meaning varies from one jurisdiction to another. Other civil wrongs include breach of contract and breach of trust. Liability is imposed on the basis of moral responsibility, i.e. a duty of care or to act, and fault (culpa) is the main element of liability. The term is used in mixed legal systems such as Scotland, South Africa, Louisiana and the Philippines, but tort is the equivalent legal term used in common law jurisdictions.
The exact meaning of delict varies between legal systems but it is always centred on the Roman law idea of wrongful conduct.
Breach of Trust - Civil Wrong
A civil wrong or wrong is a cause of action under the law of the governing body. Tort,[1] breach of contract[2] and breach of trust[3][4] are types of civil wrong. Something that amounts to a civil wrong is said to be wrongful. A wrong involves the violation of a right because wrong and right are complementary terms.[5] A statement that an act complained of is legally wrongful as regards the party complaining implicitly includes a statement that the act complained of prejudicially affects the party complaining in some legal right.[6]
Cause of Action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party.[1] The term also refers to the legal theory upon which a plaintiff brings suit (such as breach of contract, battery, or false imprisonment). The legal document which carries a claim is often called a Statement of Claim in English law, or a Complaint in U.S. federal practice and in many U.S. states. It can be any communication notifying the party to whom it is addressed of an alleged fault which resulted in damages, often expressed in amount of money the receiving party should pay/reimburse.
To pursue a cause of action, a plaintiff pleads or alleges facts in a complaint, the pleading that initiates a lawsuit. A cause of action generally encompasses both the legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant). Often the facts or circumstances that entitle a person to seek judicial relief may create multiple causes of action. Although it is fairly straightforward to file a Statement of Claim in most jurisdictions, if it is not done properly, then the filing party may lose his case due to simple technicalities.
Pleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement of a party’s claims or defenses to another party’s claims in a civil action. The parties’ pleadings in a case define the issues to be adjudicated in the action.
The Civil Procedure Rules (CPR) govern pleading in England and Wales. Federal Rules of Civil Procedure govern pleading in United States federal courts. Each state in the United States has its own statutes and rules that govern pleading in the courts of that state.
Complaint
In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party or parties against whom the claim is brought (the defendant(s)) that entitles the plaintiff(s) to a remedy (either money damages or injunctive relief).
Sanction
Sanctions, in law and legal definition, are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations.[1] Criminal sanctions can take the form of serious punishment, such as corporal or capital punishment, incarceration, or severe fines. Within the civil law context, sanctions are usually monetary fines, levied against a party to a lawsuit or his/her attorney, for violating rules of procedure, or for abusing the judicial process. The most severe sanction in a civil lawsuit is the involuntary dismissal, with prejudice, of a complaining party’s cause of action, or of the responding party’s answer. This has the effect of deciding the entire action against the sanctioned party without recourse, except to the degree that an appeal or trial de novo may be allowed because of reversible error.
Prejudice
Prejudice is a legal term with different meanings when used in criminal, civil or common law. Often the use of prejudice in legal context differs from the more common use of the word and thus has specific technical meanings implied by its use. Two of the more common applications of the word are as part of the terms “with prejudice” and “without prejudice”. In general, an action taken with prejudice is essentially final; in particular, “dismissal with prejudice” would forbid a party from refiling the case, and might occur either because of misconduct on the part of the party who filed the claim or criminal complaint or could be the result of an out of court agreement or settlement. Dismissal without prejudice (in Latin, “salvis iuribus”) would leave the party an option to refile, and is often a response to procedural or technical problems with the filing that the party could correct when filing again.
Reversible Error ( Appeal )
In United States law, a reversible error is an error of sufficient gravity to warrant reversal of a judgment on appeal. It is an error by the trier of law (judge), or the trier of fact (the jury, or the judge if it is a bench trial), or malfeasance by one of the trying attorneys, which results in an unfair trial. It is to be distinguished from harmless errors which do not rise to a level which brings the validity of the judgment into question and thus do not lead to a reversal upon appeal.
Malfeasance
Misfeasance, nonfeasance, and malfeasance are types of failure to discharge public obligations existing by common law, custom, or statute.
When a contract creates a duty that does not exist at common law, there are three things the parties can do wrong:
- Nonfeasance is the failure to act where action is required — willfully or in neglect.
- Misfeasance is the willful inappropriate action or intentional incorrect action or advice.
- Malfeasance is the willful and intentional action that injures a party.
The rule of law laid down is that an action in contract (ex contractu) will lie for any of the three. However, an action in tort (ex delicto) will lie only in misfeasance or malfeasance. The doctrine was formerly applied to certain callings carried on publicly.[1]
At present the terms misfeasance and nonfeasance are most often used with reference to the conduct of municipal authorities with reference to the discharge of their statutory obligations; and it is an established rule that an action lies in favour of persons injured by misfeasance, i.e. by negligence in discharge of the duty; but that in the case of nonfeasance the remedy is not by action but by indictment or mandamus or by the particular procedure prescribed by the statutes.
Rights - natural - legal - positive - negative
Natural and legal rights are two types of rights. Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and therefore universal and inalienable (i.e., rights that cannot be repealed or restrained by human laws). Legal rights are those bestowed onto a person by a given legal system (i.e., rights that can be modified, repealed, and restrained by human laws).
The concept of natural law is closely related to the concept of natural rights. Natural law first appeared in ancient Greek philosophy,[1] and was referred to by Roman philosopher Cicero. It was subsequently alluded to in the Bible, and was then developed in the Middle Ages by Catholic philosophers such as Albert the Great, and Thomas Aquinas. During the Age of Enlightenment, the concept of natural laws was used to challenge the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government – and thus legal rights – in the form of classical republicanism. Conversely, the concept of natural rights is used by others to challenge the legitimacy of all such establishments.
The idea of human rights is also closely related to that of natural rights: some acknowledge no difference between the two, regarding them as synonymous, while others choose to keep the terms separate to eliminate association with some features traditionally associated with natural rights.[2] Natural rights, in particular, are considered beyond the authority of any government or international body to dismiss. The 1948 United Nations Universal Declaration of Human Rights is an important legal instrument enshrining one conception of natural rights into international soft law. Natural rights were traditionally viewed as exclusively negative rights,[3] whereas human rights also comprise positive rights.[4] Even on a natural rights conception of human rights, the two terms may not be synonymous.
Self Evident
In epistemology (theory of knowledge), a self-evident proposition is a proposition that is known to be true by understanding its meaning without proof,[citation needed] and/or by ordinary human reason.
Some epistemologists deny that any proposition can be self-evident. For most others, the belief that oneself is conscious is offered as an example of self-evidence. However, one’s belief that someone else is conscious is not epistemically self-evident.
The following proposition is often said to be self-evident:
A finite whole is greater than, or equal to, any of its parts
Also self evident is the statement that two plus two is equal to 4.
A logical argument for a self-evident conclusion would demonstrate only an ignorance of the purpose of persuasively arguing for the conclusion based on one or more premises that differ from it (see ignoratio elenchi and begging the question).
Negative & Positive Rights
Negative and positive rights (not to be confused with negative and positive liberties) are rights that respectively oblige either action (positive rights) or inaction (negative rights). These obligations may be of either a legal or moral character. The notion of positive and negative rights may also be applied to liberty rights.
To take an example involving two parties in a court of law: Adrian has a negative right to x against Clay if and only if Clay is prohibited from acting upon Adrian in some way regarding x. In contrast, Adrian has a positive right to x against Clay if and only if Clay is obliged to act upon Adrian in some way regarding x. A case in point, if Adrian has a negative right to life against Clay, then Clay is required to refrain from killing Adrian; while if Adrian has a positive right to life against Clay, then Clay is required to act as necessary to preserve the life of Adrian.
Rights considered negative rights may include civil and political rights such as freedom of speech, life, private property, freedom from violent crime, freedom of religion, habeas corpus, a fair trial, freedom from slavery.
Rights considered positive rights, as initially proposed in 1979 by the Czech jurist Karel Vasak, may include other civil and political rights such as police protection of person and property and the right to counsel, as well as economic, social and cultural rights such as food, housing, public education, employment, national security, military, health care, social security, internet access, and a minimum standard of living. In the “three generations” account of human rights, negative rights are often associated with the first generation of rights, while positive rights are associated with the second and third generations.
Natural Law
Natural law (Latin: ius naturale, lex naturalis) is a philosophy asserting that certain rights are inherent by virtue of human nature endowed by nature; traditionally God or a transcendent source, and can be understood universally through human reason. As determined by nature, the law of nature is implied to be universal,[1] existing independently of the positive law of a given political order, society or nation-state.
Duty of Care
In tort law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals with no current direct relationship (familial or contractual or otherwise), but eventually become related in some manner, as defined by common law (meaning case law).
Duty of care may be considered a formalisation of the social contract, the implicit responsibilities held by individuals towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law.
Negligence
Negligence (Lat. negligium, from neglegerium, to neglect, literally “not to pick up something”) is a failure to exercise the appropriate and or ethical ruled care expected to be exercised amongst specified circumstances.[1] The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances.
Ex Delicto
Ex delicto, Latin for “from a wrong” or “from a transgression,” is a legal term that indicates a consequence of a tort, though the phrase can also refer to the consequence of a crime. This is often opposed to ex contractu.
Ex Contractu
Ex contractu, Latin for “from a contract,” is a legal term that indicates a consequence of a contract. Ex contractu is often to denote the source of a legal action (often as opposed to ex delicto).
It is often said that damages ex contractu will lie for nonfeasance, misfeasance and malfeasance; whereas damages ex delicto will only lie for misfeasance and malfeasance.
Appeal
In law, an appeal is the process in which cases are reviewed, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and interpreting law.
Indictment
An indictment (/ɪnˈdaɪtmənt/ in-DYT-mənt), in the common law system, is a formal accusation that a person has committed a crime. In jurisdictions that use the concept of felonies, the most serious criminal offence is a felony; jurisdictions that do not use the concept of felonies often use that of an indictable offence—an offence that requires an indictment.
Historically, in most common law jurisdictions, an indictment was handed up by a grand jury, which returned a “true bill” if it found cause to make the charge, or “no bill” if it did not find cause.
Grand Jury
Grand jury is a legal body empowered to conduct official proceedings and investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may compel the production of documents and compel sworn testimony of witnesses to appear before it. Grand jury is separate from the courts, which do not preside over its functioning.[1]
Preliminary Hearing
Within some criminal justice systems, a preliminary hearing, preliminary examination, evidentiary hearing or probable cause hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial. In the United States, the judge must find that such evidence provides probable cause to believe that the crime was committed by the defendant.
Probable Cause
In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal. The standard also applies to personal or property searches.[1]
Probable cause, in conjunction with a preponderance of the evidence, also refers to the standard by which a grand jury believes that a crime has been committed. The term comes from the Fourth Amendment of the United States Constitution:
Burden of Proof
The burden of proof (Latin: onus probandi) is the duty of a party in a trial to produce the evidence that will prove the claims they have made against the other party. In a legal dispute, one party is initially presumed to be correct and gets the benefit of the doubt, while the other side bears the burden of proof. When a party bearing the burden of proof meets their burden, the burden of proof switches to the other side.
Trier of Fact
A trier of fact, or finder of fact, is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.[1] Various aspects of a case that are not in controversy may be the “facts of the case” and are determined by the agreement of the separate parties; the trier of fact need not decide such issues.
In a jury trial, a jury is the trier of fact. The jury finds the facts and applies them to the relevant statute or law it is instructed by the judge to use in order to reach its verdict. Thus, in a jury trial, the findings of fact are made by the jury while the judge makes legal rulings as to what evidence will be heard by the jury and what legal framework governs the case.
Jury ( Trier of Fact )
A jury is a sworn body of people convened to render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty or not guilty (not proven; a verdict of acquittal, based on the state’s failure to prove guilt rather than any proof of innocence, is also available in Scotland). The old institution of grand juries still exists in some places, particularly the United States, to investigate whether enough evidence of a crime exists to bring someone to trial.
Remedy
A legal remedy, also judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will.
In common law jurisdictions and mixed civil-common law jurisdictions, the law of remedies distinguishes between a legal remedy (e.g. a specific amount of monetary damages) and an equitable remedy (e.g. injunctive relief or specific performance). Another type of remedy available in these systems is declaratory relief, where a court determines the rights of the parties to an action without awarding damages or ordering equitable relief.
Equitable Remedy
Equitable remedies are judicial remedies developed by courts of equity from about the time of Henry VII to provide more flexible responses to changing social conditions than was possible in precedent-based common law.
Equitable remedies were granted by the Court of Chancery in England, and remain available today in most common law jurisdictions. In many jurisdictions, legal and equitable remedies have been merged and a single court can issue either, or both, remedies. Despite widespread judicial merger, the distinction between equitable and legal remedies remains relevant in a number of significant instances. Notably, the United States Constitution’s Seventh Amendment preserves the right to a jury, trial rights in civil cases over $20 to cases “at common law”.
[ Seventh Amendment ]
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
The $20.00 threshold remains applicable despite the inflation that has occurred since the 18th century. An ingenious addition to prevent inflation from excluding future social classes of the poor from obtaining remedy by jury trial.
The 7th amendment codifies the right to a jury trial in certain civil cases, and inhibits courts from overturning a jury’s findings of fact.
Equitable remedies are distinguished from “legal” remedies (which are available to a successful claimant as of right) by the discretion of the court to grant them. In common law jurisdictions, there are a variety of equitable remedies , but the principal remedies are:
injunction specific performance account of profits rescission rectification equitable estoppel certain proprietary remedies, such as constructive trusts[6] subrogation in very specific circumstances, an equitable lien[7] equitable compensation Appointment or removal of fiduciary Interpleader
