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Words Flashcards
Majority (decision)
Judge from appellate court writes a decision when the vote is in the majority
Dissenting Opinion
Opinion that is from the minority judges
Concurring Opinion
Opinion that is concurring but not the judge who wrote the majority decision.
Per Curiam Decision
Decision by the court that is not hav the judges name in the opinion; maybe used for a shorter opinion with general unanimity.
Case Reporters
Appellate decisions are published in volumes called Case Reporters
Binding Authority
- Precedent becomes binding authority on a court if the precedent case was decided by the court or higher court in the same jurisdiction
Persuasive Authority
Cases decided by courts that do not bind state – are PERSUASIVE AUTHORITY only
Authority persuasive – court deciding a dispute may take into account the decision in the precedent case
Admissibility
- The quality or state of being allowed to be entered into evidence in a hearing, trial, or other proceeding.
affirm
- The formal approval by an appellate court of a lower court’s judgment, order or decree.
appellant
- A party who appeals a lower court’s decision, usually seeking reversal of that decision.
appellee
- A party against whom an appeal is taken and whose role is to respond to that appeal, usually seeking affirmance of the lower court’s decision.
attorney-client privilege
- The client’s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney.
citation
- The law of civil or private rights, as opposed to criminal law or administrative law.
common law
- The body of law derived from judicial decisions, referred to as caselaw, rather than from statutes or constitutions.
conflict of interest
- A real or seeming incompatibility between the interests of two of a lawyer’s clients such that the lawyer is disqualified from representing both clients if the dual representation adversely affects either client to if the clients do not consent.
contract
- An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.
crime
- An act that the law makes punishable.
criminal law
- The body of law defining offenses against the community at large, regulating how suspects are investigated, charged and tried, and establishing punishments for convicted offenders.
damage (actual)
- An amount awarded to a complainant to compensate for a proven injury or loss.
damage (compensatory)
- Damages sufficient in amount to indemnify the injured person for the loss suffered.
damage (punitive)
- Damages awarded in addition to actual damages when the defendant acted with recklessness, malice, or deceit.
decision
- A judicial determination after consideration of the facts and the law.
defendant
- A person sued in a civil proceeding or accused in a criminal proceeding.
distinguish
- To note a significant factual, procedural, or legal difference in an earlier case, usually to minimize the case’s precedential effect or to show that it is inapplicable
holding
- A court’s determination of a matter of law pivotal to its decision.
intent
- The state of mind accompanying an act, especially a forbidden act.
judgment
- A court’s final determination of the rights and obligations of the parties in a case.
jurisdiction
- A government’s general power to exercise authority over all persons and things within its territory.
litigant
- A party to a lawsuit.
mootness doctrine
- The principle that American courts will not decide cases in which there is no longer any actual controversy.
motion
- A written or oral application requesting a court to make a specific ruling or order.
obiter dictum
- A judicial comment made while delivering a judicial opinion, but that is unnecessary to the decision in the case and therefore not precedential (A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive without going to courts for a court or other tribunal when deciding subsequent cases with similar issues or facts.) (although it may be considered persuasive].
opinion
- A court’s written statement explaining its decision in a given case, usually including the statement of facts, points of law, rationale, and dicta.
plaintiff
- The party who brings a civil suit in a court of law.
precedent
- A decided case that furnishes a basis for determining later cases involving similar facts or issues.
remand
- To send a case, claim, or claim back to the court or tribunal from which it came for some further action.
ripeness
- The state of a dispute that has reached, but not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made.
standing
- A party’s right to make a legal claim or seek judicial enforcement of a duty or right.
stare decisis
- The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points again arise again in litigation.
tort
- Act or omission that gives rise to injury or harm to another & amounts to a civil wrong for which courts impose liability.
tortfeasor
A tortfeasor is a person or entity who is found to be responsible under civil law for an injury caused to another person or entity.
chattel
The meaning of CHATTEL is an item of tangible movable or immovable property except real estate and things (such as buildings) connected with real property …
Often chattels. any article of tangible property other than land, buildings, and other things annexed to land. a human being considered to be property; …
trover
common-law action to recover the value of personal property that has been wrongfully disposed of by another person.
a fortiori
(ah four de or e)
used to express a conclusion for which there is stronger evidence than for a previously accepted one.
“they reject all absolute ideas of justice, and a fortiori the natural law position”
denoting or based on a conclusion for which there is stronger evidence than for a previously accepted one.
“the a fortiori argument is not entirely refuted
malum in se
(mal-uhm in say) adv. Latin referring to an act that is “wrong in itself,” in its very nature being illegal because it violates thenatural, moral or public principles of a civilized society. In criminal law it is one of the collection of crimes which are traditionaland not just created by statute, which are “malum prohibitum.” Example: murder, rape, burglary, and robbery are malum inse, while violations of the Securities and Exchange Act or most “white collar crimes” are malum prohibitum. (See: malum prohibitum)
MALUM IN SE. Evil in itself.
- An offence malum in se is one which is naturally evil, as murder, theft, and the like; offences at common law aregenerally mala in sese.
- An offence malum prohibitum, on the contrary, is not naturally an evil, but becomes so in consequence of its beingforbidden; as playing at games, which being innocent before, have become unlawful in consequence of being forbidden. VideBac. Ab. Assumpsit, A, note; 2 Rolle’s Ab. 355.
A Priori
(a pry or i)
[Latin, From the cause to the effect.]
This phrase refers to a type of reasoning that examines given general principles to discover what particular facts or real-lifeobservations can be derived from them. Another name for this method is deductive reasoning.
malum prohibitum
(mal-uhm prohibit-uhm) adj. Latin meaning “wrong due to being prohibited,” which refers to crimes made so by statute,compared to crimes based on English Common Law and obvious violations of society’s standards which are defined as”malum in se.” Statutory crimes include criminal violations of regulatory acts, “white collar crimes” such as improper use ofinsider information, issuance of stocks without a permit which are intentionally not supported by real assets, and taxavoidance. (See: malum in se, white collar crime)
ab initio
(ab inish e-o)
from the beginning
Ab initio (/ˌæb ɪˈnɪʃioʊ/ AB in-ISH-ee-oh) is a Latin term meaning “from the beginning” and is derived from the Latin ab (“from”) + initio, ablative singular of initium (“beginning”).
mandamus
man-day-mus
Overview. A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion. (See, e.g. Cheney v. United States Dist.
actus reus
(actus re - us)
action or conduct which is a constituent element of a crime, as opposed to the mental state of the accused.
“failure to prevent death may be the actus reus of manslaughter”
mortgage
A mortgage is a type of loan used to purchase or maintain a home, land, or other types of real estate. The borrower agrees to pay the lender over time, …
A mortgage is an agreement between you and a lender that gives the lender the right to take your property if you fail to repay the money you’ve borrowed plus interest. Mortgage loans are used to buy a home or to borrow money against the value of a home you already own. Seven things to look for in a mortgage.
additur
An additur is a legal term referring to the practice of a trial judge adding damages additional to the original amount awarded by the jury. It is not allowed in U.S. federal courts, as held by Dimick vs. Schiedt, 293 U.S. 47
The power of the trial court to assess damages or increase the amount of an inadequate award made by jury verdict, as acondition of a denial of a motion for a new trial, with the consent of the defendant whether or not the plaintiff consents to suchaction. This is not allowed in the federal system.
Damages assessed by a jury may be set aside when the amount is shocking to the judicial conscience—so grosslyinadequate that it constitutes a miscarriage of justice—or when it appears that the jury was influenced by prejudice,corruption, passion, or mistake.
For example, a sixty-one-year-old woman was mugged in a hallway of her apartment building after the landlord failed toreplace a broken lock on the back service entrance. She sustained a broken shoulder, a broken arm, and numerous cuts andbruises. Her medical bills amounted to more than $2,500. She sued the landlord for his negligent maintenance of thebuilding, and the jury returned a verdict in her favor but awarded damages of only $2,500. Her attorney immediately movedfor a new trial on the ground that the verdict was shockingly inadequate. The trial judge ruled that the jury could not possiblyhave calculated compensation for the woman’s pain and suffering, an item that should have been included under state law.The trial judge, therefore, awarded an additur of $15,000. The effect of this order was to put the defendant on notice that hemust either pay the $15,000 in addition to the verdict of $2,500 or a new trial would be held. The defendant weighed thedisadvantages of investing time and money in a new trial and the risk of an even higher award of monetary damages by asympathetic jury. He consented to the additur.
An additur is not justified solely because the amount of damages is low. For example, damages of $10,000 certainly will notcompensate the family of a forty-four-year-old man who had been steadily employed as a plumber until he was permanentlydisabled in an auto accident. In such a case, however, the jury could have found that the plaintiff’s Negligence contributed tothe cause of the accident and reduced the damages proportionately, as is permitted in most states.
An award of additur is not permitted in every state, nor is it allowed in the federal courts. Under the rules that governprocedure in the federal courts, a trial judge has the power to set aside a verdict for a plaintiff on the ground that thedamages awarded are clearly inadequate, but then the judge’s only recourse is to grant a new trial.
Persuasive
Tending or having the power to persuade: a persuasive argument.
possession
- 1.
- a. The act or fact of possessing.
- b. The state of being possessed: the land’s possession by the town.
- 2.
- a. Something owned or possessed: removed his possessions from the desk.
- b. A territory subject to foreign control.
- 3. Lawa. Power or control over something: possession of a firearm.
- b. Occupation or control of a piece of property, with or without ownership.
- c. A right of occupation and use: The tenant has possession of the apartment until the end of the lease.
- d. The crime of possessing an illegal drug.
- 4.
- a. The state of being dominated or controlled by a demon or spirit.
- b. The state of being occupied or obsessed with something, such as an idea.
- 5. Sportsa. Physical control of the ball or puck by a player or team.
- b. An instance of this: Ideally, we would score on each possession.
precedent
1.a. An act or instance that may be used as an example in dealing with subsequent similar instances.
b. Law A judicial decision that is binding on other equal or lower courts in the same jurisdiction as to itsconclusion on a point of law, and may also be persuasive to courts in other jurisdictions, in subsequent casesinvolving sufficiently similar facts.
2. Convention or custom arising from long practice: The president followed historical precedent in forming the Cabinet.
- adj.* (prĭ-sēd′nt, prĕs′ĭ-dənt)Preceding.
- *
[Middle English, from Old French, from Latin praecēdēns, praecēdent-, present participle of praecēdere, to gobefore; see precede.]
arguendo
In the course of the argument.
When the phrase in arguendo is used by a judge during the course of a trial, it indicates that his or her comment is made as amatter of argument or illustration only. The statement does not bear directly upon the remainder of the discussion.
prep. Latin meaning “for the sake of argument” used by lawyers in the context of “assuming arguendo” that the facts were asthe other party contends, but the law prevents the other side from prevailing. Example: “assuming arguendo” that the courtfinds our client, the defendant, was negligent, the other party (plaintiff) was so contributorily negligent he cannot recoverdamages. In short, the lawyer is not admitting anything, but wants to make a legal argument only. The word appears mostcommonly in appeals briefs.
Privilege
- A particular benefit, advantage, or* Immunity enjoyed by a person or class of people that is not shared with others. A powerof exemption against or beyond the law. It is not a right but, rather, exempts one from the performance of a duty, obligation,or liability.
n. a special benefit, exemption from a duty, or immunity from penalty, given to a particular person, a group or a class of people.
a right or immunity in connection with legal proceedings conferred upon a person by virtue of his position.For example, in the law of evidence a person may generally refuse to answer a question on the grounds that the answermight incriminate him; likewise, a spouse may refuse to answer questions about the other spouse in relation to eventsoccurring during the time of their marriage. The word has a specialized meaning in the context of the law of defamation.
PRIVILEGE, rights. This word, taken its active sense, is a particular law, or a particular disposition of the law, which grantscertain special prerogatives to some persons, contrary to common right. In its passive sense, it is the same prerogativegranted by the same particular law. 2. Examples of privilege may be found in all systems of law; members of congress and of the several legislatures, duringa certain time, parties and witnesses while attending court; and coming to and returning from the same; electors, while goingto the election, remaining on the ground, or returning from the same, are all privileged from arrest, except for treason, felonyor breach of the peace. 3. Privileges from arrest for civil cases are either general and absolute, or limited and qualified as to time or place. 4.-1. In the first class may be mentioned ambassadors, and their servants, when the debt or duty has been contracted bythe latter since they entered into the service of such ambassador; insolvent debtors duly discharged under the insolvent laws;in some places, as in Pennsylvania, women for any debt by them contracted; and in general, executors and administrators,when sued in their representative character, though they have been held to bail. 2 Binn. 440. 5.-2. In the latter class may be placed, 1st. Members of congress this privilege is strictly personal, and is not only his own,or that of his constituent, but also that of the house of which he is a member, which every man is bound to know, and musttake notice of. Jeff. Man. Sec. 3; 2 Wils. R. 151; Com. Dig. Parliament, D. 17. The time during which the privilege extendsincludes all the period of the session of congress, and a reasonable time for going to, and returning from the seat ofgovernment. Jeff. Man. Sec. 3; Story, Const. Sec. 856 to 862; 1 Kent, Com. 221; 1 Dall. R. 296. The same privilege isextended to the members of the different state legislatures. 6.-2d. Electors under the constitution and laws of the United States, or of any state, are protected from arrest for any civilcause, or for any crime except treason, felony, or a breach of the peace, eundo, morando, et redeundo, that is, going to,staying at, or returning from the election. 7.-3d. Militia men, while engaged in the performance of military duty, under the laws, and eundo, morando et redeundo. 8.-4th. All persons who, either necessarily or of right are attending any court or forum of justice, whether as judge, juror,party interested or witness, and eundo, morando et redeundo. See 6 Mass. R, 245; 4 Dall. R. 329, 487; 2 John. R. 294; 1South. R. 366; 11 Mass. R. 11; 3 Cowen, R. 381; 1 Pet. C. C. R. 41. 9. Ambassadors are wholly exempt from arrest for civil or criminal cases. Vide Ambassador. See, generally, Bac. Ab. h.t.; 2 Rolle's Ab. 272; 2 Lilly's Reg. 369; Brownl. 15; 13 Mass. R. 288; 1 Binn.R. 77; 1 H. Bl. 686; Bouv. Inst. Index, h.t.
corpus delicti
(de lick ti)
Corpus delicti, in Western law, is the principle that a crime must be proved to have occurred before a person can be convicted of committing that crime. For example, a person cannot be tried for larceny unless it can be proven that property has been stolen.
[Latin, The body of the crime.] The foundation or material substance of a crime.
The phrase corpus delicti might be used to mean the physical object upon which the crime was committed, such as a deadbody or the charred remains of a house, or it might signify the act itself, that is, the murder or Arson.
The corpus delicti is also used to describe the evidence that proves that a crime has been committed.
CORPUS DELICTI. The body of the offence; the essence of the crime
2. It is a general rule not to convict unless the corpus delicti can be established, that is, until the dead body has beenfound. Best on Pres. Sec. 201; 1 Stark. Ev. 575, See 6 C. & P. 176; 2 Hale, P. C. 290. Instances have occurred of a personbeing convicted of having killed another, who, after the supposed criminal has been put to death for the supposed offence,has made his appearance alive. The wisdom of the rule is apparent; but it has been questioned whether, in extreme cases, itmay not be competent to prove the basis of the corpus delicti by presumptive evidence. 3 Benth. Jud. Ev. 234; Wills onCircum. Ev. 105; Best on Pres. Sec. 204. See Death.
privity
A close, direct, or successive relationship; having a mutual interest or right.
Privity refers to a connection or bond between parties to a particular transaction. Privity of contract is the relationship thatexists between two or more parties to an agreement. Privity of estate exists between a lessor and a lessee, and privity ofpossession is the relationship between parties in successive possession of real property.
n. contact, connection or mutual interest between parties. The term is particularly important in the law of contracts, whichrequires that there be “privity” if one party to a contract can enforce the contract by a lawsuit against the other party. Thus, atenant of a buyer of real property cannot sue the former owner (seller) of the property for failure to make repairs guaranteedby the land sales contract between seller and buyer since the tenant was not “in privity” with the seller. (See: contract)
de novo
[Latin, Anew.] A second time; afresh. A trial or a hearing that is ordered by an appellate court that has reviewed the record ofa hearing in a lower court and sent the matter back to the original court for a new trial, as if it had not been previously heardnor decided.
quasi
[Latin, Almost as it were; as if; analogous to.] In the legal sense, the term denotes that one subject has certain characteristicsin common with another subject but that intrinsic and material differences exist between them.
A Quasi Contract is an obligation invoked by law in the absence of an agreement. Its purpose is to create a legal dutywhere, in fact, no promise or agreement was entered into by the parties.
When an Administrative Agency makes rules and regulations, it is acting in a quasi-legislative capacity.
(kway-zeye, kwah-zee) adj., adv. from Latin for “as if,” almost, somewhat, to a degree (always used in combination withanother word). Quasi refers to things and actions which are not exactly or fully what they might appear, but have to be treated”as if” they were.
QUASI. A Latin word in frequent use in the civil law signifying as if, almost. It marks the resemblance, and supposes a littledifference between two objects. Dig. b. 11, t. 7, 1. 8, Sec. 1. Civilians use the expressions quasi-contractus, quasi-delictum,quasi-possessio quasi-traditio, &c.
dicta
Opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in acourt’s opinion that go beyond the facts before the court and therefore are individual views of the author of the opinion andnot binding in subsequent cases as legal precedent. The plural of dictum.
Dictum
[Latin, A remark.] A statement, comment, or opinion. An abbreviated version of obiter dictum, “a remark by the way,” which isa collateral opinion stated by a judge in the decision of a case concerning legal matters that do not directly involve the factsor affect the outcome of the case, such as a legal principle that is introduced by way of illustration, argument, analogy, orsuggestion.
Dictum has no binding authority and, therefore, cannot be cited as precedent in subsequent lawsuits. Dictum is the singularform of dicta.
quid pro quo
[Latin, What for what or Something for something.] The mutual consideration that passes between two parties to acontractual agreement, thereby rendering the agreement valid and binding.
In common usage, quid pro quo refers to the giving of one valuable thing for another. Quid pro quo has the same meaning inthe law but with varying implications in different contexts.
Quid pro quo, or the exchange of valuable consideration, is required for the formation of a valid contract between individualswho are not merchants. This requirement of mutual consideration, or the exchange of something of value, indicates thesincerity of the parties’ intent to adhere to the contract between them.
The term quid pro quo is also used in the contexts of politics and Sexual Harassment. In politics quid quo pro can refer tothe use of political office for personal benefit. For instance, an elected official might promise favorable governmentaltreatment to a person in exchange for something of value. This form of quid pro quo would be a violation of the law. On thefederal level, the Hobbs Act (18 U.S.C.A. § 1951 [1994]) makes it a felony for a public official to extort property under color ofoffice. Trading campaign contributions for promises of official actions or inactions are also prohibited under the act.
In the area of sexual harassment, quid pro quo describes a form of sexual blackmail. Quid pro quo sexual harassment is theconditioning of employment benefits on an employee’s sub-mission to unwelcome sexual conduct. Title VII of the civil rightsact (42 U.S.C.A. § 2000 (e)-2 [1988]) provides a remedy for quid pro quo sexual harassment. Most courts follow the EqualEmployment Opportunity Commission’s guidelines and hold that the necessary quid pro quo exists if submission tounwelcome sexual advances “is made either explicitly or implicitly a term or condition of an individual’s employment” or ifsubmission to unwelcome sexual advances “is used as the basis for employment decisions affecting such individual” (29C.F.R. § 1604.11(a)(1)-(2) [1997]).
directed verdict
A procedural device whereby the decision in a case is taken out of the hands of the jury by the judge.
A verdict is generally directed in a jury trial where there is no other possible conclusion because the side with the Burden of Proof has not offered sufficient evidence to establish a Prima Facie case.
A directed verdict is provided for by federal and state rules of Civil Procedure. In a criminal action, an acquittal may bedirected in favor of a defendant, based upon rules of Criminal Procedure
directed verdict
n. a verdict by a jury based on the specific direction by a trial judge that they must bring in that verdict because one of theparties has not proved his/her/its case as a matter of law (failed to present credible testimony on some key element of theclaim or of the defense). A judge in a criminal case may direct a verdict of acquittal on the basis the prosecution has notproved its case, but the judge may not direct a verdict of guilty, since that would deprive the accused of the constitutionalright to a jury trial. (See: judgment, verdict, element, acquittal, jury trial)
remand
A higher court may remand a case to a lower court so that the lower court will take a certain action ordered by the highercourt. A prisoner who is remanded into custody is sent back to prison subsequent to a Preliminary Hearing before a tribunalor magistrate until the hearing is resumed, or the trial is commenced.
v. to send back. An appeals court may remand a case to the trial court for further action if it reverses the judgment of thelower court, or after a preliminary hearing a judge may remand into custody a person accused of a crime if the judge findsthat a there is reason to hold the accused for trial. (See: appeal, preliminary hearing)
TO REMAND. To send back or recommit. When a prisoner is brought before a judge on a habeas corpus, for the purpose ofobtaining his liberty, the judge hears the case, and either discharges him or not; when there is cause for his detention, heremands him.
ex rel.
conj. abbreviation for Latin ex relatione, meaning “upon being related” or “upon information,” used in the title of a legalproceeding filed by a state attorney general (or the federal Department of Justice) on behalf of the government, on theinstigation of a private person, who needs the state to enforce the rights of himself/herself and the public. For example, thecaption would read: The State of Tennessee ex rel. Archie Johnson v. Hardy Products.
remittitur
The procedural process by which an excessive verdict of the jury is reduced. If money damages awarded by a jury aregrossly excessive as a Matter of Law, the judge may order the plaintiff to remit a portion of the award.
The remedy of remittitur is designed to cure an award of damages that is grossly excessive without the necessity of a newtrial or an appeal. In some cases, an award by a jury is so completely out of line with the damages proven in the case that itis Unconscionable.
Ordinarily, however, an award of Punitive Damages will not be upset as excessive in the absence of gross error or prejudiceon the part of the jury.
Remittitur frequently occurs when a defendant requests a new trial because he or she regards the verdict for the plaintiff asexcessive.
n. 1) a judge’s order reducing a judgment awarded by a jury when the award exceeds the amount asked for by the plaintiff(person who brought the suit). 2) an appeal’s transmittal of a case back to the trial court so that the case can be retried, or anorder entered consistent with the appeal’s court’s decision (such as dismissing the plaintiff’s case or awarding costs to thewinning party on appeal). (See: remand)
forum non convenien(s)
(for-uhm nahn cahn-veen-nee-ehns) n. Latin for a forum which is not convenient. This doctrine is employed when the courtchosen by the plaintiff (the party suing) is inconvenient for witnesses or poses an undue hardship on the defendants, whomust petition the court for an order transferring the case to a more convenient court. A typical example is a lawsuit arisingfrom an accident involving an out-of-state resident who files the complaint in his/her home state (or in the defendant driver’shome state), when the witnesses and doctors who treated the plaintiff are in the state where the accident occurred, whichmakes the latter state the most convenient location for trial.
forum non conveniensin private international law, the doctrine that allows a court to decline its ownjurisdiction because there is another jurisdiction that can more conveniently try the case.
Rescind
rescind countermand, repeal, veto; nullify, retract: rescind an agreement
Not to be confused with:
resend – send again; send back: resend a letter
re•scind(rɪˈsɪnd)
v.t.1. to revoke, annul, or repeal.2. to invalidate (an act, measure, etc.) by a later action or a higher authority.
[1630–40; < Latin rescindere to cut away, revoke =re- re- + scindere to tear]
re•scind′er, n.re•scind′ment, n.
in camera
In chambers; in private. A judicial proceeding is said to be heard in camera either when the hearing is had before the judge inhis or her private chambers or when all spectators are excluded from the courtroom.
in camera‘in chambers’, a most perplexing phrase for litigants who suspect they maybe about to be photographed.Actually it indicates that the case, or the rest of the case, is to be heard in the judge’s private chambers - excluding thepublic.
sine qua non
Sine Qua Non
[Latin, Without which not.] A description of a requisite or condition that is indispensable.
In the law of torts, a causal connection exists between a particular act and an injury when the injury would not have arisenbut for the act. This is known as the but for rule or sine qua non rule.
sine qua non
(see-nay kwah nahn) prep. Latin for “without which it could not be,” an indispensable action or condition. Example: if CharlieCareless had not left the keys in the ignition, his 10-year-old son could not have started the car and backed it over PollyPlaymate. So Charlie’s act was the sine qua non of the injury to Playmate.
infra
Infra
[Latin, Below, under, beneath, underneath.] A term employed in legal writing to indicate that the matter designated will appearbeneath or in the pages following the reference.
nfra
prep. Latin for “below,” this is legal shorthand to indicate that the details or citation of a case will come later on in the brief.Infra is distinguished from supra which shows that a case has already been cited “above.” The typical language is Jones v.McLaughlin, infra, meaning the exact citation of the case, including volume and page number, will follow later in thedocument. (See: citation, cite)
supersede
Supersede
To obliterate, replace, make void, or useless.
Supersede means to take the place of, as by reason of superior worth or right. A recently enacted statute that repeals anolder law is said to supersede the prior legislation.
A superseding cause is an act of a third person or some intervening force that prevents a tortfeasor from being held liable forharm to another. A supervening act is one that insulates an actor from responsibility for negligently causing a dangerouscondition that results in an injury to the plaintiff.
in pari delicto
In Pari Delicto
[Latin, In equal fault.] A descriptive phrase that indicates that parties involved in an action are equally culpable for a wrong.
When the parties to a legal controversy are in pari delicto, neither can obtain affirmative relief from the court, since both areat equal fault or of equal guilt. They will remain in the same situation they were in prior to the commencement of the action.
in pari delicto
adv. (in pah-ree dee-lick-toe) Latin for “in equal fault,” which means that two (or more) people are all at fault or are all guilty ofa crime. In contract law, if the fault is more or less equal then neither party can claim breach of the contract by the other; inan accident, neither can collect damages, unless the fault is more on one than the other under the rule of “comparativenegligence”; in defense of a criminal charge, one defendant will have a difficult time blaming the other for inducing him or herinto the criminal acts if the proof is that both were involved.
supra
Supra
[Latin, Above; beyond.] A term used in legal research to indicate that the matter under current consideration has appeared inthe preceding pages of the text in which the reference is made.
supra
(sooh-prah) Latin for “above,” in legal briefs and decisions it refers to the citation of a court decision which has beenpreviously mentioned. Thus a case when first cited will be referred to as Guinn v. United States, (1915) 238 U. S. 347,meaning it can be found in volume 238 of the United States Reports (of the Supreme Court) at page 347 and was decided in1915. The next time the case is cited as Guinn v. United States, supra.
issue of fact
issue of fact
an issue to be decided by a jury.
ultra vires
(vi rees)
adjective
acting or done beyond one’s legal power or authority.
“at one point they argue that the legislation is ultras vires”
adverb
beyond one’s legal power or authority.
“he will take action against any body acting ultra vires”
issue of law
an issue to be decided by a judge.
Issue
Issue
- To promulgate or send out. In a lawsuit, a disputed point of law or* Question of Fact, set forth in the pleadings, that is allegedby one party and denied by the other.
- In the law governing the transfer or distribution of property, a child, children, and all individuals who descend from a commonancestor or descendents of any degree.*
As applied to notes or bonds of a series, date of issue means the day fixed as the start of the period for which they run, withno reference to a specific date when the bonds or notes are to be sold and delivered. With regard to bonds only, bonds areissued to the purchaser when they are delivered.
When an issue of fact arises, the court or jury must consider and evaluate the weight of the evidence in order to reach adecision. An issue of law exists thereby providing a ground for a Summary Judgment sought by a party to the action whenonly one conclusion can be drawn by the court from the undisputed evidence, obviating the need for deliberation by a jury.
The term issue is frequently found in provisions of a deed. In testamentary matters, the meaning of issue is derived from theintent of the testator, a maker of a will. The intent is determined from the provisions of the will.
issue
1) n. a person’s children or other lineal descendants such as grandchildren and great-grandchildren. It does not mean allheirs, but only the direct bloodline. Occasionally, there is a problem in determining whether a writer of a will or deed meantissue to include descendants beyond his or her immediate children. While a child or children are alive, issue refers only tothem, but if they are deceased then it will apply to the next generation unless there is language in the document which showsit specifically does not apply to them. 2) n. any matter of dispute in a legal controversy or lawsuit, very commonly used insuch phrases as “the legal issues are,” “the factual issues are,” “this is an issue which the judge must decide,” or “please,counsel, let us know what issues you have agreed upon.” 3) v. to send out, promulgate, publish or make the originaldistribution, such as a corporation selling and distributing shares of stock to its initial investors. 4) n. the shares of stock orbonds of a corporation which have been sold and distributed. (See: corporation, incorporation)
ultra vires (contracts)
[Latin, Beyond the powers.] The doctrine in the law of corporations that holds that if a corporation enters into a contract that isbeyond the scope of its corporate powers, the contract is illegal.
The doctrine of ultra vires played an important role in the development of corporate powers. Though largely obsolete inmodern private corporation law, the doctrine remains in full force for government entities. An ultra vires act is one beyond thepurposes or powers of a corporation. The earliest legal view was that such acts were void. Under this approach a corporationwas formed only for limited purposes and could do only what it was authorized to do in its corporate charter.
This early view proved unworkable and unfair. It permitted a corporation to accept the benefits of a contract and then refuseto perform its obligations on the ground that the contract was ultra vires. The doctrine also impaired the security of title toproperty in fully executed transactions in which a corporation participated. Therefore, the courts adopted the view that suchacts were Voidable rather than void and that the facts should dictate whether a corporate act should have effect.
Over time a body of principles developed that prevented the application of the ultra vires doctrine. These principles includedthe ability of shareholders to ratify an ultra vires transaction; the application of the doctrine of Estoppel, which prevented thedefense of ultra vires when the transaction was fully performed by one party; and the prohibition against asserting ultra vireswhen both parties had fully performed the contract. The law also held that if an agent of a corporation committed a tortwithin the scope of the agent’s employment, the corporation could not defend on the ground that the act was ultra vires.
Despite these principles the ultra vires doctrine was applied inconsistently and erratically. Accordingly, modern corporationlaw has sought to remove the possibility that ultra vires acts may occur. Most importantly, multiple purposes clauses andgeneral clauses that permit corporations to engage in any lawful business are now included in the articles of incorporation. Inaddition, purposes clauses can now be easily amended if the corporation seeks to do business in new areas. For example,under traditional ultra vires doctrine, a corporation that had as its purpose the manufacturing of shoes could not, under itscharter, manufacture motorcycles. Under modern corporate law, the purposes clause would either be so general as to allowthe corporation to go into the motorcycle business, or the corporation would amend its purposes clause to reflect the newventure.
State laws in almost every jurisdiction have also sharply reduced the importance of the ultra vires doctrine. For example,section 3.04(a) of the Revised Model Business Corporation Act, drafted in 1984, states that “the validity of corporate actionmay not be challenged on the ground that the corporation lacks or lacked power to act.” There are three exceptions to thisprohibition: it may be asserted by the corporation or its shareholders against the present or former officers or directors of thecorporation for exceeding their authority, by the attorney general of the state in a proceeding to dissolve the corporation or toenjoin it from the transaction of unauthorized business, or by shareholders against the corporation to enjoin the commissionof an ultra vires act or the ultra vires transfer of real or Personal Property.
Government entities created by a state are public corporations governed by municipal charters and other statutorily imposedgrants of power. These grants of authority are analogous to a private corporation’s articles of incorporation. Historically, theultra vires concept has been used to construe the powers of a government entity narrowly. Failure to observe the statutorylimits has been characterized as ultra vires.
In the case of a private business entity, the act of an employee who is not authorized to act on the entity’s behalf may,nevertheless, bind the entity contractually if such an employee would normally be expected to have that authority. With agovernment entity, however, to prevent a contract from being voided as ultra vires, it is normally necessary to prove that theemployee actually had authority to act. Where a government employee exceeds her authority, the government entity mayseek to rescind the contract based on an ultra vires claim.
Judgement n.o.v.
Judgment notwithstanding the verdict, also called judgment non obstante veredicto, or JNOV, is a type of judgment as a matter of law that is sometimes rendered at the conclusion of a jury trial.
A judgment notwithstanding the verdict (JNOV) is a judgment by the trial judge after a jury has issued a verdict, setting aside the jury’s verdict and entering a judgment in favor of the losing party without a new trial. A JNOV is very similar to a directed verdict except for the timing within a trial.
This motion argues that no reasonable jury could reach the verdict that the jury in this case just did. In other words, it claims that the jury did not follow proper instructions and ruled for the opposing party based on legally insufficient evidence.
Nudum pactum
Nudum pactum in Latin literally means ‘naked promise’ or ‘bare promise’. In common law, it refers to a promise that is not legally enforceable for want of consideration. An example of a nudum pactum would be an offer to sell something without a corresponding offer of value in exchange. While the offer may bind a person morally, since the offer has not been created with any consideration, it is gratuitous and treated as a unilateral contract. The offer is therefore revocable at any time by the offeror before acceptance by the offeree.
In the US, the Uniform Commercial Code has invalidated the doctrine of nudum pactum as it applies to offers made by “merchants” under the firm offer rule under certain circumstances. It holds that those offers are legally enforceable in a manner similar to option contracts.
