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2045 Cards in this Set

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Abandoned property
personal property that the owner has voluntarily relinquished, as to both possession and any claim of title
Abandonment
surrendering control of property with the intention to relinquish all claims to it. This is a voluntary act; losing property is involuntary. When used in regard to duty, "abandonment" means repudiation.
Abandonment (of a trademark)
the failure to use a mark after acquiring legal protection may result in the loss of rights, and such loss is known as abandonment
abatement of nuisance
removal or cessation of that which is causing a nuisance. Also, a suit seeking to terminate a nuisance.
ab initio
(latin) "from the beginning"
absolute privilege
protection from liability for slander or libel; this privilege is given under certain circumstances regardless of the fact that the statements are false or maliciously made; it applies to judicial and legislative proceedings where defamatory statements were allegedly made
absorb
to acquire or take in, as a merger
abstention
to abstain from voting (not vote)
abstract
in patent law, a concise paragraph found on the front page of an issued patent certificate that briefly describes the workings and features of the invention
abstract of title
summary of the transactions by which property (generally, real estate) has changed hands over the years
abuse of discretion
failure to exercise reasonable, legal discretion. Referring to errors of law and plainly erroneous conclusions of facts, this is a standard that usually must be met in order to overturn decisions of administrative agencies and trail courts
abuse of process
the use of a court process (e.g., attachment, injunction) for a purpose for which it was not intended
abusive (wrongful) discharge
a modification of the common law doctrine that "at-will" employees (those without a set term of employment) may be terminated for any reason. This tort occurs if a firing violates a clear mandate of public policy.
acceleration clause
in a mortgage or a promissory note payable in installments, a provision that default in payment of a single installment makes the entire debt immediately payable
acceptance (for contracts)
an assent to an offer in accordance with its terms
acceptance (for commercial paper)
the drawee's signed agreement ot pay a draft upon presentment
acceptance of goods
UCC 2-606 states that there are three ways a buyer can accept goods: 1. by signifying to the seller that the goods are conforming or that he/she will accept them in spite of their nonconformity; 2. by failing to make an effective rejection; and 3. by doing an act inconsistent with the seller's ownership
acceptor
the person accepting a draft and thus agreeing to be primarily responsible for its payment. See also drawee.
accession
an addition to personal property by labor and/or materials. The property owner generally has the right to increased value, although compensation may be required for an accession added in good faith by another person
accessory
one who assists in or conceals the commission of a crime although not directly participating in the crime
accommodation
an arrangement made as a favor to another ( and without seeking to accomplish one's own purposes), usually involving a loan of money or commercial paper
accommodation indorser
an instrument's signer who is not in the chain of title
accommodation paper
a negotiable instrument in which an accommodation party has, in effect, agreed, usually without consideration, to share liability or potential liability on the instrument with another, accommodated party. See also accommodation party
accommodation party
a person who signs a negotiable instrument in some capacity (marker, drawer, indorser, acceptor) to lend his/her credit status to another party to the instrument. which then becomes accommodation paper
accord
agreement to accept performance different from that in the original contract.
accord and satisfaction
an agreement by the parties to a contract to substitute a new performance in place of, and in satisfaction of, an existing obligation
account
1. for goods sold or leased or services rendered, a right to payment not evinced by an instrument or chattel paper 2. the concept of the individualized funds maintained by banks for each particular customer.
account debtor
a person obligated to pay on an account, contract right , chattel paper, or other intangible property right
accountant/client privilege
law in about 20 states forbidding, in state court, testimony concerns confidential communications; federal courts do not recognize this privilege
accounting
equitable proceeding/remedy, e.g. in partnership law, whereby the court directs an investigation of all potentially relevant transactions and all records to ascertain the rights and responsibilities (e.g., amounts owed and owing) of the parties.
account receivable
a debt, owed to a business, that is not supported by negotiable paper (e.g., store charge accounts)
account stated
an agreement on the final amount due between parties
accredited investors
banks, insurance companies, and knowledgeable persons who may receive private sales offerings of securities under Regulation D of the Securities and Exchange commission
accretion
the gradual, natural accumulation of land (sediment) by, and next to, a river or other body of water; method by which a party on whose, or next to whose, real property this sediment (alluvium) accumulates, obtain title over the accumulation.
acknowledgment
an oath by one who executed a document that he or she executed and that is valid; also, a formal witnessing of an instrument, such as a deed, by a public officer (e.g., notary public or justice of the peace), with the signer declaring that the instrument's execution was voluntary.
acquittal
verdict or judgment that a criminal defendant has not been proven guilty beyond a reasonable doubt
act of God
a natural event (e.g., hurricane, tidal wave) operating beyond the control of a party to a contract and excusing his/her performance; also, a tort defense, a type of superseding (intervening) cause
act of state doctrine
the judicial doctrine that courts should refrain from inquiring into the validity of a foreign nation's actions within its own territory
action
1. a lawsuit; 2. a legal proceeding commenced by the service of a summons or petition
actionable
behavior that could be or is the basis for a lawsuit or other legal claim
actions at law
civil cases in which the plaintiff seeks money damages
acts
laws passed by Congress or a state legislature
actual authority
the express or implied authority of an agent to act for a principal
adjuster
one who settles claims for an insurer; also called a claims adjuster
actual malice
1. a statement made with the knowledge that it is false or with a reckless disregard for the truth; 2. real and demonstrable evil intent
actus reus
(latin) "a wrongful act"; if it is combined with mens rea ("guilty mind"), the actor is deemed to be criminally liable
adeemed bequest
bequest cancelled (ademption) because the specific item was sold, destroyed, or given away prior to the testator's death
adequate assurance of due performance
in contract and sales law (UCC 2-609), when "reasonable grounds for insecurity" arise with respect to either party's performance, the other party may demand adequate assurance of due performance and, until he/she receives such assurance, may suspend any performance for which he/she has not already received the agreed return
adhesion contract
a form of contract, usually unconscionable, between a merchant and consumer in which the stronger party (the merchant) dictates the terms, which are in a standard, printed-form contract that the consumer cannot alter.
adjudication
hearing or otherwise reviewing the claims of litigants and then rendering a judgment; an exercise of judicial power, just as legislation is an exercise of legislative power
administrative agency
a governmental body (e.g., a board, a commission) created by the federal, state, or local government in order to implement and administer particular legislation
administrative dissolution
involuntary dissolution of a corporation that is ordered by the appropriate state official or board (e.g., the state secretary of state) because the corporation did not comply with states procedures or other corporate law requirements
administrative employee
an employee whose primary duty conists of nonmanual work directly related either to management policies or to the general business operations of the employers or the employer's customers
administrative law
rules, regulations, orders, and decisions issued by administrative agencies. Generally, the term encompasses that body of law created an enforced by the agencies and, on occasion,reviewed by courts of law.
administrative law judge (ALJ)
a government official who hears and decides administrative cases. Ordinarily, the ALJ's findings of fact and recommendations are presumed correct by higher administrative bodies and courts
administrative process
procedures governing an agency's exercise of administrative power, as well as a private party's right to advance rule-making proposals, present quasi-judicial claims or defenses, and otherwise take part in administrative proceedings
administrative regulation
rules adopted by administrative agencies to implement and administer statutes. They have the force of law, absent successful challenge in the courts.
administrative search
usually a governmental civil inspection of a residential or commercial building to determine compliance with fire, health, and other safety codes.
administrator
the person named by a probate court to administer the decedent's estate. (Generally, either there was no will or the will did not designate an executor.)
admiralty jurisdiction
the U.S. Constitution assigns to the federal courts this jurisdiction over matters involving things done upon or relating to the sea, such as navigation, commerce and injuries, also called maritime jurisdiction
ad valorem (according to value) tariff
an importer must pay a percentage of the value of the imported merchandise
adversarial system
legal system, found in the United states and some other countries, in which the parties initiate, develop, and present their cases.
compare inquisitorial system
adverse possession
ownership of real property acquired by openly, continuously, and exclusively occupying the property without the owner's permission and over a period of time established by state statue (varies from about 5 to 30 years). Some states require that the adverse possessor have had some claim of title before hand. Governmental property cannot be acquired by adverse possession.
advisory opinion
a judicial ruling on the legality of a governmental action, whether already accomplished or merely contemplated, when there is no case or controversy for the court to decide. Some state courts may issue these opinions, but the federal courts have no such authority
affectation doctrine
doctrine whereby courts refuse to probe congressional motives and uphold regulatory legislation enacted under the commerce clause, if the regulated activity affects, even in a minor way, interstate commerce
affiant
the person who makes an affidavit
affidavit
a voluntary, written statement of facts sworn to under penalty of perjury, usually before a notary public or another person authorized to administer oaths
affirm
to uphold a lower court's judgment
affirmative action
a policy that certain preferences will be given to minority or other protected class applicants seeking employment, school admissions, or other benefits or opportunities
affirmative covenant
the borrowers' promise to do certain things under the loan agreement (e.g., to do something on his/her land, such as building or maintaining a dam, bridge, wall, or irrigation or drainage ditch)
affirmative defense
a defense based not merely on denying the facts asserted by the plaintiff, but also on asserting additional facts or legal theories on the defendant's behalf. Generally the defendant has the burden of proving his/her affirmative defenses
affirmative disclosure
administrative requirement, such as by the Federal Trade Commission, that an advertiser include certain information in its advertisement so that the ad is not deceptive
as a remedy for past deceptive ads or as a disclaimer that the product will not benefit all members of the public and specifying which members will not be helped
after-acquired property
property that a debtor obtains after the security agreement is executed
after-acquired title
if, when a grant deed is executed, the grantor does not have title to the real property referred to in the grant deed but subsequently acquires it, such after-acquired title is deemed automatically transferred to the grantee
agency
a legal relationship whereby one person acts for another
agency by estoppel
agency created when a person intentionally or negligently causes or allows a third person to believe that another is his/her agent
agency by ratification
an agency formed when a principal approves or accepts the benefits of the actions of an otherwise unauthorized agent
agency coupled with an interest
a special type of agency relationship that is created for the agent's benefit; the principal cannot revoke this type of agency
agency fees
payments covering the cost of union activities on behalf of non-members whose work unit is represented by a union; the fees are supposed to support only collective bargaining expenses, not other costs such as political activities
agency shop
a work place where the employee need not join the union but must pay agency fees
agent
a person authorized to act for another person (the principle)
agreement
a meeting of the minds; the bargain reached by the parties
aid and abet
to help another commit a crime; the secondary violation in which the aider and abettor knows or is reckless about the other person's crime (the primary violation) and provides substantial assistance to the carrying out of that crime
aided-in-the-agency-relation doctrine
any agency doctrine whereby the principal may be held vicariously liable for the wrongful acts of an agent acting outside his/her scope of authority; the liability is because the principal provided the instrumentality or created the circumstances that made it possible for the agent to commit the wrongful act
air bill
a document of title serving for air transportation as a bill of lading does for marine or rail transportation
air rights
the exclusive rights of a landowner to the air above his/her land, to that height over which control is reasonable
aleatory promise
a contractual promise made conditional upon the occurrence or nonoccurence of an uncertain or fortuitous event
alibi
excuse of being somewhere else when a crime was committed
alienation
voluntary, absolute transfer of title to, and possession of, real property from one person to another; owners in fee simple have a right to alienate
alien corporation
a corporation formed under the laws of a foreign country
allegation
an assertion of a claimed fact, particularly in a pleading
allonge
a paper physically attached to, and made a part of, a negotiable instrument; this paper generally contains one or more additional indorsements
alter ego
(latin) "other self"; a person (e.g., an agent) who is legally the same as, an interchangeable with, another person (e.g.,) the principal
alternative dispute resolution (ADR)
methods of dispute resolution, such as arbitration and mediation, that are different from the traditional judicial process (litigation)
ambient air
under the Clean Air Act, the air outside(not in buildings)
amended and restated articles/certificate
a document compiling all previous amendments to the articles/certificate of incorporation into one set of articles or certificate, perhaps with further amendments included in the related articles/certificate
amended pleading
a changed pleading, with added, altered, or removed allegations or legal arguments, that replaces a previous pleading of the same type (e.g., an amended complaint takes the place of the original complaint)
American Arbitration Association
established in 1926, a private nonprofit organization whose purpose is to foster improved techniques of arbitration law and to advance the study and use of arbitration for prompt, efficient settlements of disputes
amici (pl of amicus)
persons or organizations that have no right to appear in a suit but are allowed to file briefs, ordinarily in appeals cases, as a friend of the court (latin--amicus curiae)
anchor tenant
a key tenant of a shopping center, such as a supermarket or department store
ancillary restraint
a promise in restraint of trade made as apart of an otherwise valid transaction, such as a sale of a business
annotation
a critical or explanatory note, such as a brief description of a court opinion interpreting a statute
annual meeting
meeting of shareholders or directors, to be held each year at a time that may be stated in the bylaws; ordinarily the meeting is required by statute, although the directors or shareholders are usually permitted to sign written consents for corporate undertakings (including the annual meeting) without actually holding a meeting
annul
to deprive a judgment or judicial proceeding of all force and operation
annulment
the voiding of marriage
answer
the defendant's response to the complaint; the answer usually admits or denies each of the various allegations in the complaint, and may include affirmative defenses
antecedent debt
preexisting obligation
anticipatory breach
a contract breach occurring, even though the time for performance has not yet lapsed, if one party clearly states or implies that he/she cannot or will not perform the contract
also called anticipatory repudiation
Anti-Cybersquatting Consumer Protection Act
a federal statute, enacted in 1999, imposing civil liabilit upon persons who "with bad faith intent to profit from the mark," register, traffic in, or use a domain name that, at the time of registration, is confusingly similar to a trademark or service mark or that dilutes a famous mark
antideficiency statute
a statute prohibiting deficiency judgments for certain types of mortgages, such as those on residential property
antitrust law
statutory, regulatory, and case law, the most important being federal, designed to prevent and correct unreasonable restraints on trade
apostille
a simplified certification of notarized documents allowed by countries that belong to the Hague Convention. With nothing else required, the apostille entitles the document to recognition in the country of intended use.
apparent authority
authority created by estoppel, that is , through conduct of a principal that causes a third party to believe that the agent has the authority to make contracts for the principal
appeal
a request that a higher court review the decision of a lower court
appearance
coming into court, whether in person or via a pleading; performed by the appearing party or the attorney
appellant
the party that appeals a court decision
appellate jurisdiction
the power of a court to hear appeals from other courts' decisions
appellee
the party against whom an appeal is filed
appraisal rights
the rights of share holders (who object to certain corporate actions that may diminish the value of their stock) to compel the corporation to purchase their stock for its appraised value.
sometimes called""dissenters' rights"
appropriation
taking an item of tangible, personal property for one's own and/or using it for one's own interests.
If wrongful, appropriation is a tort (e.g., conversion)
appropriation of a person's name or likeness
unauthorized use of a person's name or likeness for financial gain
appurtenances
passing as incident to the main thing.
Ex: an easement consisting of a right of way over one piece of land will pass another piece of land as being appurtenant to it.
appurtenant easement
an easement that is attached (appurtenant) to a parcel of real estate (the dominant) and "runs with the land" (passes to successive owners of the dominant estate). The dominant estate holds a negative or affirmative easement in the adjoining servient estate.
see also easement
APR
annual percentage rate
arbiter
an arbitrator
arbitrary
without rational basis, given the facts and/or law; such arbitrariness often must be proven to overturn decisions by juries, trial courts, or administrative bodies
arbitrary and capricious standard
if an administrative agency has a choice between several courses of action, a reviewing court will ordinarily presume that the chosen course is valid unless the person challenging it shows that it lacks any rational basis
arbitrary marks
real word(s) used in connection with a product or service whose ordinary meaning has nothing to do with the trademarked product
Apple for computers, Shell for gasoline, Camel for cigarettes
arbitration
an out-of-court procedure in which a dispute is presented to one or more persons (arbitrators), whose decision is binding on the parties
arbitration clause
the section in a contract that provides for arbitration if a dispute develops between the contracting parties. Such a clause either makes arbitration mandatory or permits either party to choose arbitration in lieu of a lawsuit
arbitrator
1, a person selected by the parties to a dispute to make a decision based on evidence the parties submit; 2. the neutral third party who conducts an arbitration to resolve a dispute
arguments
statements (written and/or oral) to the court setting forth the opposing parties' positions on the facts and law. The oral arguments by the attorneys at the conclusion of a trial are called the "summation"
arraignment
a hearing during which the accused is brought before a court, informed of the charges against him/her, and asked to enter a plea
arrears
overdue payments
arrest
to take into police custody
arson
the act of willfully setting fire to and burning a building
articles/certificate of a conversion
document filed to convert an entity from one form of doing business to another
articles/certificate of correction
document filed to make a nonsubstantive change,
correcting a typographical error
articles/certificate of dissolution
a resolution to cease a corporation's operation that is adopted by the corporation's board of directors and majority of shareholders
articles/certificate of merger or exchange
required to be filed with a state's secretary of state or another state official in order to effect a merger or the exchange of shares of stock, this document primarily contains information about the merger/exchange plan and the shareholder approval of that plan
articles/certificate of revocation
document requesting the revocation of the certificate of dissolution that the state issued
articles of incorporation
a formal document that creates a corporation; a charter
articles of organization
a formal document that creates a limited liability company
articles of partnership
the written agreement by which a partnership is formed and its terms of operation stated;
partnership agreement
artificial person
an entity that is treated in law as a person
a corporation
artisan
a skilled worker in a trade requiring manual dexterity
tailor, carpenter, auto mechanic
artisan's lien
a possessory lien held by persons who have added value to (repaired or improved) another person's personal property. The lienhold retains as security the repaired or improved property to ensure payment for his/her service
artistic work
a visual representation
Architectural plan, drawing, engraving, map. painting, photograph, or sculpture
"as is"
a disclaimer of warranty by asserting that goods are sold "as is", without warranty
assault
the intentional tort (or crime) of unjustifiably arousing in another individual the apprehension of immediate harmful or offensive contact with his/her body
assault and battery
the compound crime or tort of (a) assault (e.g., threat), and (b) carrying out the threatened harmful or offensive contact with his/her body
assessment statute
a statute requiring state and local governments to consider, before imposing conditions on development, whether the restriction will constitute a taking (requiring compensation as a form of eminent domain) under federal or state constitutional law
assets
all property--real, personal, tangible, intangible, legal, equitable--that can be used to pay debts
assign
to transfer legal rights from one person to another
assigned risk pool
insurance plan for those who cannot get insurance from traditional sources
assignee
the party to whom an assignment is made
assignment
the transfer of legal rights from one party to another
assignment to a trustee
an arrangement whereby (a) the debtor transfers to a trustee the title to some or most of the debtor's property, (b) the trustee sells or otherwise disposes of the property for cash and distributes the proceeds pro rata among the debtor's creditors, and (c) any creditor accepting such payment discharges the entire debt owed to him/her
assignment for the benefit of creditors
assignor
the party making an assignment
associate
a lawyer who is a salaried member of the firm but not, at least yet, a partner
association
a form of unincorporated entity that can be used for the transaction of business as well as for other, nonbusiness purposes
assumed business name statute
a state law requiring that a certificate listing the names and addresses of persons conducting business under an assumed name or trade name be filed in the public records
assumpsit
(latin for "he undertook") a legal action to enforce or recover damages for a breach of contract; a term for a contract or, more particularly, an agreement or promise not under seal
assumption of risk
the tort defense that a plaintiff who knowingly and voluntarily faces a dangerous situation may not recover for an injury arising out of the known risks inherent to that situation
attach
if the three basic prerequisites of a security interest exist (agreement, value, collateral), the security interest becomes enforceable between the parties and is said to attach (i.e., become an attachment)
attachment
1. court ordered seizure of a debtor's property for payment of money owed to a creditor; may be accomplished before judgment (with property under the sheriff's control until a judgment is entered),
in order to prevent depletion of assets pending the completion of a lawsuit 2. a method to make a security interest effective between the debtor and creditor
attempt
the crime of intending to do a specific criminal act, and, in furthereance of that intent, taking action beyond mere preparation
attestation
the act of witnessing the execution of a written instrument, at the request of the person executing the instrument, and subscribing to (signing) the instrument as a witness
attestation clause
a clause in a will stating that the witnesses observed the signing of the will
attorney
a representative or agent
attorney-at-law
a legal representative; a person, trained in law, employed to represent others in lawsuits and other legal matters
attorney/client privilege
privilege whereby disclosure of confidential communications solely between the attorney and the client cannot be compelled; the privilege can be waived by the client
attorney in fact
a person named as a representative or agent in a power of attorney
attorney work-product doctrine
a doctrine protecting from nonconsensual disclosure the information that an attorney prepares in the course of his/her work
(e.g., notes on litigation strategy, observations about witnesses)
attractive nuisance
an unreasonably dangerous condition that might result in injury to children who cannot learn or appreciate the danger. A landowner may thus be liable for physical injuries to child trespassers caused by artificial conditions on his/her land that 1. attracted those child trespassers and 2. were not adequately barred from the children's use
(e.g., via a fence keeping children out of a swmming pool).
"at-will" employee
an employee without a set term for employment
he/she can quit at any time, for any reason
"at-will" employment doctrine
the common law principle that an "at-will" employee can be fired at any time, for any reason; now qualified by modern antidiscrimination statutes, the doctrine of abusive (wrongful discharge), and the like
auction with reserve
unless expressly stated otherwise, an auction is this type, in which the seller retains the right to refuse the highest bid and withdraw the goods from sale
auction without reserve
an auction in which the seller expressly waives his/her right to withdraw the goods from sale and must accept the highest bid
audit
verification of a business entity's books and records, performed by an independent certified public accountant pursuant to federal securities laws, state laws, and stock exchange rules
authenticate
1. to sign; 2. to execute or otherwise adopt a symbol, or encrypt or similarly process a record, with the present intent of the authenticating person to identify the persona and adopt or accept a record
author
the creator of an artistic, dramatic, literary, or musical work
authoritative decision
a court decision that must be followed regardless of its persuasive power by virtue of the relationship between the court that made the decision (e.g., a state supreme court) and the court to which the decision is cited (e.g., a lower court in the same state)
authority
an agent's power to change the principal's legal status, duties, or rights
authorization card
in a union organizing campaign, a card signed by the employee indicating that he/she has joined the union and wants it to be his/her collective bargaining representative
authorized stock
the number of shares (common or preferred) that the charter permits the corporation to issue
automatic perfection
security interest perfection by attachment
automatic stay
in bankruptcy law, an order that stops or suspends all civil litigation against a debtor
avoidance
in bankruptcy law, power invested in a trustee to rescind a debtor's obligations
avulsion
sudden changing of course of a stream or river, Landowners retain the property lines as existed before the change; thus, distinct from property changes caused by accretion
award
the decision of an arbitrator
back pay
salary and employee benefits required to be paid to an employee upon finding the employee's discharge or layoff in violation of a contractual or statutory right (e.g., due to unlawful discrimination)
back-to-back letter of credit
a buyer provides this letter of credit to his/her seller, who uses the letter in his/her favor to finance the seller's purchase of products or materials from his/her supplier
bad faith
purposely misleading another person or otherwise acting dishonestly and/or with ill will; willfully failing to act in accordance with statutory or contractual obligations
compare good faith
bail
money or other security given to insure the appearance of a criminal defendant at all proceedings in his/her case; in return, the arrested person is freed ("out of bail") pending trail
bailee
the party receiving a chattel for purposes of a bailment
bailee's lien
bailee's right to hold bailed property until paid for work or services
bailment
the transfer or possession, care, and/or control of a chattel to another person for a limited time for a special purpose
bailor
the party transferring a chattel to another for purposes of a bailment
bait and switch
a type of deceptive advertising in which the seller advertises the availability of a low-cost discounted item, but then pressures the buyer to purchase more expensive goods
balloon payment
a large payment due at the end of the contract term
bank draft
a check drawn by a bank either on its own funds within the bank or on funds it has on deposit at another bank
bankrupt
the state or condition of one who is unable to pay his/her debts as they are, or become, due
bankruptcy
a federal right guaranteed under Article I, Section 8, of the U.S. Constitution allowing the bankrupt person to reorganize or discharge debts
bankruptcy court
a unit of the federal district court created to hear bankruptcy cases
bankruptcy estate
virtually all of a debtor's existing assets, less exempt property
bankruptcy fraud
a business crime and tort (fraud) involving the filing of false claims by creditors or debtors, fraudulent transfer or concealment of assets, or obtaining credit with the specific intent to avoid paying debts
bankruptcy proceeding
a legal procedure for settling the debts of individuals or business entities unable to pay debts as they become due
bargain
negotiated exchange
battery
the intentional tort (or crime) of unjustifiable contact with someone else's body or anything connected to the body
bearer
the person in possession of bearer paper
bearer instrument
any instrument that is not payable to a specific person, including instruments payable to the bearer or to cash
bearer paper
a negotiable instrument payable to "cash," indrosed in blank, or otherwise payable to "bearer," so that it can be negotiated merely by delivery (change in possession)
bench trial
trail without a jury in which a judge decides the case
bench warrant
a paper issued by the court from the bench to secure the arrest of a person who does not appear in court for a legal proceeding when previously ordered (e.g., subpoena) to do so
beneficiary
one who benefits from the actions of another; a person for whose benefit a trust, a will, a contractual promise, or an insurance policy is made
benefit of the bargain
in contract law, after breach, the injured promisee receives the benefit of the bargain if the judicial relief awarded places him/her in as good a position as he/she would have gained if the contract had been performed as agreed
bequest
via a will, a gift of personal property (verb form: bequeath)
best of interest of creditors test
in a Chapter 11 bankruptcy case, dissenting creditors must be given a bundle of rights the current value of which is at least as great as the distribution they would receive through a Chapter 7 liquidation
bicameralism
the state of being composed of two legislative chambers; in the United States, congress consists of the House of Representatives and the Senate, and every state legislature other than Nebraska's (which is unicameral) likewise has two chambers
bilateral contract
a contract created by an exchange of promises
bill of attainder
legislation intended to single out an individual and/or punish him her without benefit of trail; forbidden by the U.S. Constitution, Article I, Sections 9 and 10
bill of exchange
a form of negotiable instrument,
commonly called a "draft"
bill of lading
document evincing receipt of goods for shipment, issued by a person engaged in the business of transporting goods
Bill of Rights
the first ten amendments to the U.S. Constitution, all ratified in 1791
bill of sale
a written document by which one person assigns or transfers his/her right or interest in goods and chattels to another
binder
written, temporary insurance policy until a formal policy is issued or the insurer decides not to issue insurance and notifies the insured that the binder is terminated
binding authority
any source of law governing the issue to be decided and that a court must follow when deciding a case; binding authorities include constitutions, statutes, and regulations as well as court decisions that are controlling precedents within the jurisdiction
Bivens action
a lawsuit brought to redress a federal official's violation of a constitutional right; named for the U.S. Supreme Court case of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 386 (1971), allowing federal officials to be sued in a manner similar to that set forth in federal civil rights statutes (42 U.S.C. 1983) for state officials who violate a person;s constitutional rights under color of state law
blackmail
crime in which a person illegally obtains money or other property by making threats
also called extortion
blanket policy
insurance covering (1) property at more than one location and/or (2) two or more types of property
blank (general) indorsement
indorsement of a negotiable instrument by a holder whose indorsement lacks any accompanying instruction and does not indicate (e.g., by indorsing "Pay to the order of X") that any other indorser is necessary; thus the instrument is bearer paper, freely negotiable merely though delivery (change in possession)
blue laws
laws that prohibit the making of certain contracts or the operation of certain businesses on Sundays
blue sky laws
state laws regulating the intrastate issuance and sale of securities
board of directors
the managers/trustees of a corporation, elected by the shareholders
boilerplate
standardized text that fits in a variety of documents and that, for proposed contracts, the drafting party usually views as relatively nonnegotiable
bona fide
(latin) "in good faith"; genuine
Bona Fide Occupational Qualification (BFOQ)
concerning a Title VII employment discrimination complaint, a defense based on the qualifications that the employer requires in order for the employee to perform a job
bona fide purchaser
someone who purchases for value without notice of any defects (e.g., in title)
bona fide seniority or merit system
a system allowing differences in the terms, conditions, or privileges of employment based on a seniority or merit system, but the difference cannot result from an intent to discriminate; commonly, this system is the result of a union contract
bond
a secured, long-term corporate debt security
bondholder
the person or company that holds a certificate of debt issued by a company or government and payable on a specified date
booking
in criminal law, an administrative procedure carried out after the suspect is arrested--the suspect's name, time of arrest, and alleged crime are registered (booked) in police records
book value
the value of capital stock as calculated by the excess of assets over liabilities
bound tariffs
the World Trade Organization principle holding that each time tariffs are reduced, they may not be lawfully raised again
bounty payment
a reward (payment) given to a person or persons who perform a particular service, such as informing legal authorities of illegal actions
boycott
a refusal to deal with, purchase goods from, or work for an employer; a conspiracy to inhibit the carrying on of business and to exert pressure on a party to a labor dispute; sometimes an antitrust or labor law violation
breach
nonperformance of contractual obligations
breach of duty
failure to perform a legal duty owed to another person
breach of trust
a trustee's violation of his/her duty of loyalty or any other duty owed to the beneficiary; the breach renders the trustee liable to the beneficiary for any loss or depreciation in value of the trust property and for any profit resulting form the breach.
break-up fee
an amount agreed to in a merger agreement to be paid to a friendly suitor company if, through no fault of the friendly suitor company, the agreement with the target company is not consummated
bribery
illegal payments to governmental officials or other persons for the purpose of receiving information, favorable treatment, or other assistance that the briber either is not entitled to receive or cannot lawfully receive by this method (e.g., kickbacks, payoffs)
brief
a written argument supported by citations of court decisions, statutes, and/or other authorities
broker
in securities law, a person who buys and sells stock as the agent for a customer but who does not retain for that purpose a supply of stock
compare dealer
bubble policy
an Environmental Protection Agency rule permitting a business entity to expand and emit more pollution from one source of the plant if it reduces pollution from another source the plant is said to be under an imaginary, overall bubble
bulk transfer
a transfer made outside the ordinary course of the transferor's business and involving a substantial part (e.g., over half) of his/her equipment, supplies and/or inventory.
burden of proof
1. the degree of proof necessary for a criminal conviction or for successful civil suit. In a civil case, the plaintiff has a "preponderance of the evidence" burden of proof; his/her version of the facts must be considered by the judge or jury, to be, at the very least, slightly more credible than the defendant's. In a criminal case, the prosecution must prove its case "beyond a reasonable doubt." 2. a party's obligation, when asserting a fact, to come forward with evidence supporting that fact
burglary
breakage and entering (unlawful entry into a building with the intent to commit a felony (e.g., larceny)
business agent
in labor matters, a local union officer who is paid to administer the union's affairs, enroll new members, handle grievances, and negotiate with the employer
business entity
a vehicle used to conduct business, such as a corporation, partnership, or joint venture
business judgment rule
a principle of corporate law protecting directors and officers from liability for informed business decisions made in good faith and with due care, even though the decisions turned out to have been mistakes
business necessity
justification for an otherwise prohibited employment practice based on proof that the practice is essential for safety and/or efficiency and that there is no reasonable alternative with lesser impact on legally protected interests (e.g., non-discrimination)
business tort
the civil wrong of interference with the conduct of the plaintiff's business; it may be created by statute or regulation (e.g., federal securities fraud rules)
buy and sell agreement
a contract, particularly appropriate for partnerships or closely held corporations, whereby the remaining owners or the entity are to buy the interest of a withdrawing or deceased owner
buyer in ordinary course of business
a person who buys goods in good faith and without knowledge that the sale violates a third person's ownership rights or security interest in the goods; to qualify as such a sale, the seller, under UCC 1-201(9), must be regularly engaged in the business of selling goods of that kind (and pawnbrokers are excluded from this coverage)
bylaws
a comprehensive set of rules providing for the organization and operation of a corporation
compare charter
C & F
"cost and freight"--the lump sum price of the goods includes the cost of shipping and freight, but no insurance
call
an option to buy a set number of shares at a set price within an agreed period of time; it is the opposite of a put
call a loan
to terminate a loan
callable preferred
preferred stock that a corporation may buy at its option
canceled stock
stock that was issued but has been repurchased by the corporation and canceled
cancellation clause
an insurance policy clause relevant to the insurer's right to cancel the policy
canon law
church law; a body of law developed within a particular religious tradition
capacity
a legally defined level of mental ability sufficient to reach an agreement
capital; capital assets
the total assets of a business; the owners' equity in a business; accumulated goods, possessions and assets used for the production of profits and wealth
capital stock
the class of shares that represent the owners' equity in the corporate business
capitalization
investment in the corporation by shareholders
Carriage of Goods by Sea Act (COGSA)
federal statute, enacted in 1936, governing the liability of ocean carriers for loss or damage to goods they carry
carrier
person or business entity receiving consideration (e.g., money) for transporting passengers or goods
cartel
a combination of independent producers within an industry attempting to limit competition by acting together to fix prices, divide markets, or restrict entry into the market
case law
decisions of the courts, together with their rationale; the whole law as declared by the courts through cases decided before them
cashier's check
a check drawn by a bank upon itself
casualty insurance
coverage for property loss from causes other than fire or other elements
categorical imperative
a concept developed by the philosopher Immanuel Kant as an ethical guideline for behavior. In deciding whether an action is right or wrong, or desirable or undesirable, a person should evaluate the action in terms of what would happen if everybody else in the same situation, or category, acted the same way.
causation in fact
the relationship between an act or omission and an event (including alleged damages to the plaintiff) which would not have otherwise happened; that is, harm would not have occurred but for the defendant's wrongful conduct.
compare proximate cause
cause of action
grounds for bringing a lawsuit; the right to seek a remedy in a judicial proceeding. Prerequisites are the existence of a right and a violation of that right; facts that establish the two prerequisites constitute the cause of action.
caveat emptor; cavet venditor
(latin) "let the buyer beware";"let the seller beware"
cease and desist order
an administrative agency order or court order prohibiting a business from conducting activities that the agency or court has deemed illegal; an injunction
cert. denied
an indication that a writ of certiorari was sought from, but denied by, a higher court (e.g., Supreme Court)
certificate of deposit
a type of negotiable instrument, issued by a financial institution as an acknowledgment that the institution has received the deposit of a specified sum of money; the institution promises to pay the depositor the sum of money deposited, plus interest at a stated rate, at a specified time in the future
certificate of authority
certificate that a state official issues to a foreign corporation, limited partnership, limited liability company, or other entity granting it authority to do business in the state
certificate of formation
the charter document for a limited liability company; also called articles of organization
certificate of good standing
certificate issued by a state's secretary of state, commissioner of corporations, or taxing authority certifying that an entity has paid taxes assessed it through a certain date
certificate of incorporation
the state's official authorization for a corporation to commence to do business
certificate of reinstatement
certificate issued by a state's secretary of state or other state official that reinstates the existence of a dissolved corporation where it has been shown that dissolution was not called for or that the situation that did call for dissolution has been corrected
certificate of revocation
certificate issued by a state's secretary of state or other state official revoking a certificate of dissolution. The existence of the corporation is deemed to have continued without interruption
certificate of stock
physical evidence of share ownership in a corporation
certificate of title
official representation of ownership
certificated security
a security for which a certificate has been issued
certification
a check's acceptance by the drawee bank
certification mark
a distinctive symbol, word, or design used with goods or services to certify specific characteristics
certified check
a check marked as "accepted" by the drawee, thus certifying that there is money in the drawer's account to cover the check. Certification acts as a guarantee of payment and thus enhances the check's negotiability,
certified (certificated) stock
a security (stock) for which a certificate has been issued
certiorari, writ of
an appellate court's order that a lower court transmit to it for review the records of a case. The writ is requested by the appellant, and a grant or denial of the request is within the discretion of the higher court, as it is for the U.S. Supreme Court. (If the writ is denied, the appeal is denied.) The U.S Supreme Court usually only grants the writ for cases involving novel federal issues or conflicting decisions among the federal circuit courts of appeal.
cestui que trust
(latin) the beneficiary under a trust
chain of title
the succession of deeds, wills, and other instruments by which the ownership of real property can be traced back to the original patent or deed from a governmental authority to the first private owner
challenge for cause
a party's request that a prospective juror not be one of the jurors because of his/her bias or for some other reason
chancellor
the judge in a court of equity
chancery
an equity court
changing-market-conditions defense
in an antitrust price discrimination case, this defense is used by a business to show that a business is selling a product at a lower price because it was discontinuing a product or product line or was offering the item at fire or bankruptcy sales prices
charge to the jury
at a trial, the judge's instructions to the jury concerning the law that applies to the facts of that case
charging order
a judicial lien against a partner's interest in the partnership
charter
a formal document that creates a corporation; articles or incorporation
chattel paper
a document evincing both a monetary obligation and a security interest in, or lease of, specific goods [UCC 9-105(1) (b)]
check
a special type of draft in which the drawee is always a bank and the instrument is payable on demand.
checkoff
a system by which an employer deducts union dues from the employee'' paychecks and transfers the funds to the union
checks and balances
the governmental arrangement whereby powers of each governmental branch (executive, legislative, judiciary) check and/or balance powers of the other branches
choice-of-forum clause
a contract clause that designates the location in which the case will be heard if there is a dispute
choice-of-language clause
a contract clause designating the official language by which the contract will be interpreted if there is disagreement over the contract's terms
choice of law clause
clause in a contract that states what nation's or state's laws will be applied in deciding a dispute involving that contract
chose in action
right to sue on a debt or to get damages; an intangible personal property right for intangible things that can be claimed or enforced by court action, not by taking physical possession
churning
1. a practice whereby insurance agents write new policies for customers and pay for the new policies with the cash value of existing policies; 2. in securities law, an illegal practice in which the stockbroker excessively trades a customer's account to earn more commissions rather than to further the customer's interests
C.I.F.
"cost, insurance, freight,"--the lump sum price of the goods includes the cost of insuring and shipping the goods
circumstantial evidence
indirect evidence, circumstances or other secondary facts by which connected, principal facts may be rationally inferred
citation
1. a reference indicating where a relied-upon legal authority (e.g., statute, court decision) can be found; the heading of a court case--contains the parties' names, the volume and page of the set of books (or electronic database/web site) where it can be found, the court, and the year of the decision 2. an order for a criminal defendant to appear in court and/or answer charges; often used in minor cases (e.g., alleged traffic offenses); analogous to a summons in a civil case
citizen-suit provision
a right, specified in some statutes, for private citizens to sue in court to force statutory compliance; winning plaintiffs often are entitled to have the government reimburse their cost
civil action
legal proceeding instituted to enforce a private, civil right or remedy, as distinguished form a criminal prosecution
Civil Law
1. codified law based on the Roman Code of Justinian; the basis of the legal system of most European countries and of nations that were once their colonies 2. (spelled without capital letters) noncriminal law
civil procedure
the methods, procedures, and practices that govern the processing of a lawsuit from start to finish
civil rights
freedoms and rights guaranteed by federal and state constitutions and the court decisions and statues thereunder
claim
1. generally, an alleged right to payment; 2. in bankruptcy and other debtor-creditor law, any right to payment or to receive any equitable remedy, such as specific performance of a contract; 3. in negotiable instruments law, a right of payment asserted against a holder either by a prior holder or by a third party nonholder
class action
a lawsuit in which a group of similarly situated persons, perhaps large in number, are represented by a few persons; the class is usually a plaintiff, but a defendant class is possible
classified board
a board on which directors serve for specified terms, usually three years, with only a fraction of them up for reelection at any one time; also called a staggered board
clean bill of lading
bill of lading that has no notations indicating defects or damage to the goods when they were received for transport
clearinghouse
an association of banks or other payors that exchanges drafts (e.g., checks) drawn on association members, determines balances, and otherwise "clears" (settles) these drafts
clickwrap agreement
a contract (software license) supposedly agreed to when a software purchaser scrolls through the license agreement on the computer screen or otherwise clicks on the "I Accept" (or "Okay") button on the screen.
Compare shrinkwrap license
cliff vesting
a common vesting schedule that provides that if a person granted stock options leaves in the first year of employment, then he/she forfeits all rights to any stock
close corporation
a stock corporation the shares of which are held by a relatively few persons, frequently members of a single family
closed shop
an employment arrangement, outlawed by the Taft-Hartley Act (1947), requiring employees to belong to a union before being hired and to remain members throughout their employment
closely held corporation
a corporation the stock of which is not freely circulated
closing
the finalization of a sales transaction (e.g., real estate) in which title to the property passes from seller to buyer
closing arguments
a trail lawyer's final address to the jury or judge in which he/she summarizes the case, interprets the evidence, and attempts to persuade the jury or judge to reach a desired verdict
cloud on title
an outstanding claim or other evidence on record that, if true, would adversely affect the title or other interests of the presumed owner of real property. A quiet title action may be brought by the presumed owner against the claimant(s) who have thus "clouded" the owner's title
C.O.D
"collect on delivery," usually on a shipping contract
code
1. in Civil Law: a collection of laws into a single, organic whole 2. at common law: a collection of currently effective statutes enacted by legislative bodies, including Congress and state legislatures
codicil
a change in, or addition to, a will, executed in the same formal manner as the will itself
collateral
an interest in property given by a debtor to his/her creditor in order for the latter to secure payment of the debt. If the debt is paid, the creditor's interest in the property (collateral) generally ceases; if the debt is not paid, the creditor usually may sell or use the collateral to collect all or part of the debt.
collateral contact
an express written contract made by a third person who guarantees to pay a debt or perform a duty to one party (the creditor) of an original contract if the original debtor is unable to do so
collateral estoppel
doctrine that issues decided in one lawsuit are conclusively resolved for other lawsuits between the same parties
collateral installment note
a negotiable instrument that is payable in installments, during which time the negotiable instrument's owner has a lien against the maker's personal property
Collateral note
a written promise to pay secured by the payee-creditor, with the maker-debtor creating a lien against his/her personal property
collateral promise
undertaking to be secondarily liable (i.e., liable if the principle debtor does not perform)
collective bargaining
negotiation between the employer's and employee's representatives
collective bargaining agreement
a formal agreement between an employer and a labor union covering wages, hours, and conditions of employment secured by collective bargaining
collective bargaining unit
a collective unit appropriate for bargaining with an employer on behalf of employees (i.e., a unit in which the employees share a community of interest--they have similar compensation, working conditions, and supervision,, and they work under the same general policies
collective entity doctrine
under this doctrine, the custodian of records, for a collective entity (e.g., a corporation) may not resist a subpoena for such records on the ground that the act or production will incriminate him or her
collective mark
a distinctive mark used to indicate membership in an organization
collegia
in Roman law, nonprofit membership clubs, ancestors of modern corporations
color of law
action by someone or some entity,generally a government employee or agency, that purports to be authorized by law but which, in fact, is illegal
police brutality
color of title, under
to possess land under an instrument that purports to pass title but that is ineffective to operate as a conveyance
comaker
a person who joins one or more other persons, also called comakers, in the making of a negotiable instrument; the person thus becomes primarily liable (jointly and severally) with the other comakers for the instrument's payment
coming and going rule
legal doctrine that a principal usually is not liable for damages caused by its agents and employees while they are on their way to or from work
comity
the recognition (deference, judicial restraint) that one nation gives to another nation's law and judicial decrees
commerce clause
the authority granted to Congress by Article I, Section 8, of the U.S. Constitution to regulate foreign and interstate commerce
commercial impracticability
an excuse for contractual nonperformance because of dramatic changes in circumstances or in the relative benefits and burdens of the contract to each party
commercial law
the entire body of substantive law applicable to the rights and duties of persons engaged in commerce or mercantile pursuits
commercial paper
in its broadest sense, documents used to facilitate the exchange of money or credit
commercial reasonableness
a standard for judging a party's behavior (e.g., under a contract) according to the objective evaluation of reasonable persons familiar with the particular industry and the transaction at issue
commercial speech
expressions, such as advertising, made by business; while protected under the constitution's First Amendment, this type of speech can be restricted as to time, place, and manner in ways that political speech can not
commingling
mixing the money or goods of another with one's own
commodities
animals, animal products, foods grains, metals, oil, and other articles of trade
common carrier
a carrier that presents itself to the public as available (for hire) for transporting goods or passengers; it is subject to regulation as a public utility
common law
law as developed and pronounced by the courts in deciding cases ("case law"), based on the common law of England and judicial precedent
common law liens
liens created by judicial decision that allow creditors such as land lords, bailees, and innkeepers to retain possession of a debtor's property until the debt is paid
common stock
the class of shares that participate in the management of a corporation and also own the corporate equity
community property
a system of joint ownership in some western and southwestern states whereby almost all property acquired by the husband or wife during the marriage, except gifts or inheritances, is owned equally by both spouses
company (Co.)
one of the words that indicate a business is incorporated; this word usually cannot refer to a partnership or sole proprietorship
comparable worth doctrine
a legal principle (not generally applied under existing federal law) that, if two different jobs (one held mainly by men; the other, by women) are essentially worth the same, there should not be a wage disparity or other difference in treatment between such comparably worthwhile jobs
comparative negligence
a legal principle applied when the negligence of the plaintiff and the negligence of the defendant are concurrent causes of the plaintiff damages; any damages awarded to the plaintiff are reduced by an amount proportionate to the degree of his/her fault. This rule for negligence cases has replaced the rule of contributory negligence in almost all states
compensatory damages
the sum of money needed to compensate an injured party by making him/her "whole"
comp (compensatory) time
extra paid vacation time granted, instead of extra pay, for overtime work
compensation statute
a state statute that requires the government agency adopting a land use regulation to pay the landowner for the loss in property value if that regulation causes the property's value to decline beyond a certain percentage
complainant
1. a plaintiff; a person who files a complaint 2. in criminal cases, a person who instigates a prosecution by making charges of criminal conduct
complaint
the initial pleading in a lawsuit, sometimes called a "declaration," "petition," or "bill of complaint"; it includes a statement of facts, the legal basis of the suit (cause of action), and a request for one or more remedies
complete integration
in contract law, a writing intended by the parties to be a complete and exclusive statement of the terms of the agreement
composition and/or extension agreement
an arrangement whereby a debtor and his/her creditors agree that each creditor will receive a certain percentage (less than 100%) of the amount owed (the composition) and/or extend the payment period (the extension); the debtor's full compliance discharges the entire debt
composition plan
an agreement between an insolvent debtor and his/her creditors whereby the creditors agree to accept a sooner payment of less than the whole amount in satisfaction of the whole amount owed
compounding a crime
the crime of accepting money or something else of value in return for not reporting or prosecuting another crime
compromise
an agreement to settle a dispute without resort to litigation or to settle litigation in progress
compulsory counterclaim
defendant's counterclaim arising out of the same transaction or occurrence that is the subject matter of the plaintiff's action. It is compulsory in that the defendant's failure to file it generally waives his/her right to bring the action at a later time
compulsory license
a grant to use some form of intellectual property through a means set up by the government in order to meet a public interest
computer crime
a crime committed by using a computer (e.g., to steal information, embezzle, or defraud)
computer fraud
the unauthorized access of a computer used by the federal government, by various types of financial institutions, or in interstate commerce with the intent to alter, damage, or destroy information or to prevent the authorized use of such computers,
concealment
fraudulent failure to disclose a material fact
concentration
in antitrust law, a measure of the level of competition in a market--the percentage of market share (usually sales volume) that a firm controls in a product or geographic market
concerted activity
the joint actions of employees working together for mutual aid and protection; the National Labor Relations Act protects workers (e.g., from dismissal) for engaging in certain such actions
conciliation
mediation in which the parties select an interested third party to be the mediator
concurrent jurisdiction
the simultaneous authority of two or more different courts (e.g., federal and state) to hear and decide a case
concurrent powers
power of either Congress or the state legislature to make laws on the same subject matter
condition
in the law of contracts, a fundamental requirement that must be met by one party before the other party has an obligation under a contract.
condition concurrent
a condition to be performed by both contracting parties simultaneously
condition precedent
a condition that must be complied with, or occur, before the other contraction party becomes obligated
condition subsequent
a condition the occurrence of which removes the obligation of one or both of the parties to the contract
conditional acceptance
an offer's acceptance contingent upon the acceptance of an additional or different term
conditional contract
obligations contingent upon a stated event
conditional indorsement
an indorsement in which the indorser places a present or subsequent condition (other than failure of prior parties to pay) that must be met before the indorser is liable on the instrument
conditional payment
the effect of a check or other instrument on the obligation for which it is given. This means the payee, by taking the instrument, surrenders the right to sue on the underlying debt until the instrument is due. If the instrument is not paid when due, the holder may sue on either the debt or the instrument
conditional sale
a contract for the sale of personal property by which the buyer gets possession but not title until the purchase price has been paid in full
conditional use permit
a method of relief from the strict terms of a zoning ordinance, this permit provides for others uses of real property that are not permitted as a matter of right but for which a use permit must be obtained
condominium
a form of real property feature sole ownership of individual office or apartment units, with joint ownership (by all the sole owners) of the land and common areas,
confession of judgment
an admission of liability made by a creditor in the name of his/her debtor without the formality of the usual adversarial court hearing; instruments frequently contain such admissions, which are to take effect if the debtor fails to pay in accordance with the terms of the instrument
confidentiality
the expectation that disclosed information will not be divulged to third parties
confirmation
in bankruptcy law, the court's approval of a reorganization
confirming bank
a bank located in the seller's jurisdiction that makes a legal commitment to the seller that it will honor the terms of the letter of credit issued by the issuing bank in the buyer's jurisdiction
confiscation
governmental seizure of private property and/or business without a proper purpose or just compensation; in international law, nationalization may be confiscation.
conflict of interest
in agency law, an act of divided loyalty whereby the agent acts for him/herself rather than for the principal
conflict of laws
a body of law concerning the determination of which law should be applied to the facts of a particular case when the laws of more than one state or nation may be applicable
confusion
commingling of two or more owners' personal property so that each owner's property (or property interest, e.g., a precise amount of fungible goods) can no longer be determined or distinguished from the property as a whole
conglomerate merger
a merger between two or more business entities that are indifferent industries not a horizontal or a vertical merger
consanguinity
kinship; blood relationship
conscious parallelism
doctrine that two or more firms acting the same do not violate the Sherman Act (antitrust laws) if their actions are not concerted
consent
the defense, to all torts and a few crimes, that the plaintiff agreed voluntarily to submit to the defendant's actions or proposals
consent order
an order issued by an administrative law judge in which a party, without admitting guilt, agrees to stop an allegedly illegal practice
consent decree
a judgment in which the parties, having agreed on the disposition of a case, have their agreement approved and recorded by the court
consequential damages
damages that include lost profits and other indirect injury caused by a faulty performance or other breach of a contract if the principles of foreseeability and certainty are met
consideration
any lawful alteration of responsibilities
(any action, nonaction, or promise); one of the requirements for a valid contract
consignee
the party receiving goods on consignment
consignment intended as security
a type of consignment creating a debtor-creditor relationship in which the bailee-consignee assumes initial responsibility for the purchase price of goods, whether or not he/she sells or otherwise disposes of them. The consignor retains title to the goods to secure payment for the goods in the consignee's possession
consignor
the party delivering goods on consignment
consolidation
combining two corporations by a procedure under which a third corporation purchases the stock of both corporations
conspicuous
contract term or clause so written that a reasonable person against whom it is to operate ought to have noticed it
constitution
a nation's or state's supreme law set of laws, outlining the basic organization, powers, and responsibilities of the government and guaranteeing certain specified rights to the people
constructive
the legal character or nature of a thing regardless of its actual character or nature; implied, inferred, or made out by legal interpretation
constructive abandonment
the loss of a trademark's distinctiveness as the result of an owner's acts or inaction (e.g., by allowing a mark to lapse into genericness or by not adequately controlling persons licensed to use that mark)
constructive bailment
a bailment imposed by law rather than agreement.; for example, a person who finds lost property or receives misdelivered property may be a constructive bailee
constructive condition
contractual condition that is neither express nor implied, but is imposed by law to meet the ends of justice
constructive eviction
such material impairment by a landlord of the tenant's ability to enjoy the leased premises as to give the tenant a right to terminate the lease
constructive knowledge
knowledge that is imputed, such as via these notions: 1. that what an agent knows, his/her principal knows; and 2. that all persons know whatever is publicly recorded
constructive notice
knowledge of a fact, with the knowledge presumed or imputed by law, such as by recording an instrument, filing a document in court, or placing a legal advertisement in a newspaper or trade journal. Such "knowledge" is regardless of actual knowledge, which may never have been present or may have become forgotten.
constructive trust
a trust imposed by law against a person who wrongfully obtained and/or retains property; this trust is intended to correct fraud or other misconduct.
conspiracy
an agreement between, or any combination of, two or more persons to commit an unlawful act
consumer credit
credit that is extended to persons for personal, family, or household use
consumer goods
goods bought or used for personal, family or household use
consumer expectation test
in product liability law, the level of safe performance an ordinary consumer would expect from a product
consumer product
tangible personal property normally used for family, household, or personal purposes
contempt of court
showing disrespect toward the court; disobeying a court order
contingencies
conditions in a contract that may void the contract if not met
contingency clause
a clause stating that a contract is discharged and performance excused for circumstances beyond the parties' control
contingency fee
a charge permitted in some civil cases (e.g., negligence lawsuits) whereby the attorney's fee is dependent on successful outcome for the case; generally, the fee is a percentage of the client's recovery
continuance
adjournment of a lawsuit from one day to another
continuation agreement
in partnership law, an agreement through which partners may restrict or deny the liquidation right generally arising upon a partner's dissociation
contract
a legally enforceable agreement, express or implied
contract carrier
a carrier that transports goods or people under individual contracts for a limited number of customers
contracts clause
constitutional provision (Article I, Section 10) that states cannot retroactively modify public and private contracts
contract remedies
judicial relief available to an injured promise when a contractual promise is not performed or is improperly performed
contribution
the right of a defendant liable for a loss to obtain a sharing of expenses (e.g., payments to the plaintiff) by other persons also responsible for that loss
contributory copyright infringement
inducing, causing, or materially contributing to the infringing conduct of another with knowledge of the infringing activity
contributory negligence
an absolute defense to negligence by the defendant because the plaintiff's own negligence contributed to his/her injuries; replaced by the doctrine of comparative negligence in almost all states
contributory patent infringement
knowingly selling an item that has one specific use that will result in the infringement of another's patent
controlling shareholder
a shareholder who owns sufficient shares to outvote the other shareholders and thus to control the corporation
conversion
an intentional tort involving unauthorized, unjustified exercise of control
convention
law adopted by an international organization that was created by a treaty
convertible bond
a bond that may be converted by its holder into other securities of a corporation, such as preferred or common stock
convertible stock
stock that the corporation may convert from one class (preferred) into another class (common)
conveyance
1. an instrument (e.g., a deed) by which title or other interest in real property are transferred from on person to another 2. any transfer of property or interests in property
cooling-off laws
those laws that allow consumers a period of time, such as three days, in which to cancel door-to-door sales contracts or other agreements initiated by the other party, a business
cooperative
1. an association of individuals formed to carry out a common productive enterprise, the profits being shared in accordance with the capital or labor contributed by each individual or otherwise going to the members without gain to the cooperative itself; cooperatives may be for consumers, workers, labor unions, marketing or business purchasing, financial institutions, farmers, insurers, or others 2. a corporation that owns real estate, with each shareholder entitled to lease a portion of the real estate (usually an apartment)
copyright
the exclusive right to print, sell, and exhibit written material, musical compositions, art works, photographs, movies, television programs, data systems, and other creations placed in a tangible, preserved medium of expression
core proceedings
bankruptcy proceedings in which creditor claims, allegations of preference, reorganization plans, and other matters are decided
corporate crime
a crime committed by and thus chargeable to a corporation because of activities of its officers or other employees
corporate opportunity
a business opportunity available to a corporation; an officer or director who takes personal advantage of a corporate opportunity violates his/her duty to the corporation
corporate social responsibility
the concept that corporations can and should act ethically and be accountable to society for their actions
corporation
1. an artificial being created by operation of law, with an existence distinct from the individuals (shareholders) who are its "owners" 2. a word that indicates a business is incorporated
corporation by estoppel
when a thrid party, in all its transactions with an enterprise, acts as if it were doing business with a corporation, the third party may be prevented from claiming that the enterprise is not a corporation
correspondent bank
a bank in which another bank has an account (and vice versa) for the purpose of facilitating fund transfers
cosigner
a person who signs a document along with another person and (depending on state law) who may be equally liable for any debt associated with the document
cost-benefit analysis
computing the costs of a certain activity and comparing them with the estimated value of the benefits from that activity
cost justification
in antitrust law (Robinson-Patman Act) cases, a defense that one buyer was offered goods at a lower price than another buyer because of differences in the costs of selling and delivering to those two buyers
cost
in litigation, an award to the winning party for expenses incurred (but usually excluding attorney's fees), to be paid by the losing party
counterclaim
a reverse complaint--one by the defendant against the plaintiff; sometimes called a cross complaint or countersuit
counteroffer
a cross offer by the offeree that has the effect of rejecting the original offer and proposing a new one
course of dealing
the customary method of doing business between two parties; it is a requirement of the Uniform Commercial Code that the course of dealing of the parties be a factor in determining their contractual intent
course of performance
the conduct between the parties in the implementation of a contract. This conduct is useful in determining the meaning of the contract and the intent of the parties
court
a unit of the judiciary; a governmental body intended to apply the law to controversies brought before it and to administer justice
covenant
an agreement or promise to do or not to do something; an express or implied promise incidental to a deed or contract
covenant for further assurance
a real estate seller's undertaking to do any further acts needed to perfect the buyer's title as the buyer may reasonably require
covenant of (for) quiet enjoyment
a grantor's, landlord's, or other landowner's express or implied promise that the grantee or tenant will neither be evicted nor be disturbed in his/her use and enjoyment of real property (e.g., by hostile claimants of title)
covenant running with the land
a covenant that concerns the land itself and binds (or benefits) all subsequent owners of that land
cover
to seek a substitute performance of a contract; when seller S breaches, "covering" permits buyer B to purchase goods which conform to the S-B agreement and charge S for any portion of the substituted goods' price exceeding the S-B agreement price
cramdown
confirmation of a bankruptcy reorganization plan over the objections of one or more class of creditors. The plan must not discriminate unfairly against any creditors and must be fair and equitable
crash worthiness doctrine
legal principle that automobile makers must design cars not just to operate safely (and avoid crashes) but to minimize harm, when reasonably possible, if there is a crash
creditor
the party to whom a debtor owes money or another obligation
creditor beneficiary
a person, not a party to a contract, who claims that he/she is owed the performance of the contract
creditors' committee
a group of the larger unsecured creditors, with the group's representatives appearing at Bankruptcy Court hearings, participating in negotiation over the reorganization plan, and otherwise supporting or objecting to proposals
crime
a public wrong, committed with intent or (in a few cases) by negligence, for which the law provides punishment or recompense to society
crimes per se
certain crimes that either presuppose or do not require criminal intent so that the act alone constitutes a crime
criminal fraud
fraudulent conduct that is a crime (e.g., larceny by fraud, filing false tax returns)
criminal intent
mens rea, desired or virtually certain consequences of one's conduct
criminal law
a body of substantive law governing and defining crimes and punishments for crimes
cross-claim
a claim filed against one or more parties on the same side of a lawsuit as is the claimant (e.g., by one defendant against another defendant)
cross collateralization
the collateral for a loan is used to secure obligations under another loan
crown jewel
a valuable asset of the target corporation that the tender offerer especially wants to acquire in the tender offer
cumulative-to-the- extent-earned preference
a dividends preference entitling preferred shareholders to carry forward and accumulate unpaid dividends to the extent that the corporation had earnings available to pay the dividends in the year or years in which the dividends were omitted
cumulative preferred stock
preferred stock that receives dividends accumulated for years in which no dividends were declared or paid, to be paid before any dividend may be paid on the common shares
also called cumulative dividend preference
cumulative voting
in the election of directors, a voting procedure whereby a shareholder may accumulate his/her votes and distribute them among the candidates as he/she wishes
compare straight voting
cure
seller's right, under UCC 2-508, to correct a defective performance rather than be liable for breach of contract
currency transaction report (CTR)
a report that federal law requires financial institutions to file 2. if they suspect criminal activity by a customer who is involved in a financial transaction of $1,000 or more or 2. when a single transaction of currency amounts to more than $10,000
custody
concerning personal property, immediate charge and control of the property. Custody is not synonymous with possession or ownership; a person can have custody without owning or possessing
custom
a source of international law, it is a practice involving a consistent course of conduct over a considerable period, a recognition that the practice is consistent with or required by international law and general acquiescence in the practice by other countries
customer
Under UCC Article 4, any person or entity (including another bank) having an account with a bank or for whom a bank has agreed to collect on instruments
"danger invites rescue" doctrine
legal principle that if attempted recuses are foreseeable, that rescuers injured while going to someone's resure can recover their damagers from the person(s) who caused the dangerous situation
d/b/a
"doing business as"
dealer
in securitites law, a person engaged in the business of buying and selling securities for his/her accout as a principal
compare broker
debetor
an unsecured, long-term corporate debt security
debit card
card that immediately transfers funds from user's bank account upon use
cyber crime
a crime that occurs online, in the virtual community of the internet, as opposed to the physical world
cumulative-to-the- extent-earned preference
a dividends preference entitling preferred shareholders to carry forward and accumulate unpaid dividends to the extent that the corporation had earnings available to pay the dividends in the year or years in which the dividends were omitted
cumulative preferred stock
preferred stock that receives dividends accumulated for years in which no dividends were declared or paid, to be paid before any dividend may be paid on the common shares
also called cumulative dividend preference
cumulative voting
in the election of directors, a voting procedure whereby a shareholder may accumulate his/her votes and distribute them among the candidates as he/she wishes
compare straight voting
currency transaction report (CTR)
a report that federal law requires financial institutions to file 2. if they suspect criminal activity by a customer who is involved in a financial transaction of $1,000 or more or 2. when a single transaction of currency amounts to more than $10,000
custody
concerning personal property, immediate charge and control of the property. Custody is not synonymous with possession or ownership; a person can have custody without owning or possessing
cyber squatting
Internet domain registration confusingly similar or identical to a protected trademark, with the person registering the domain name having no legitimate interest in that particular domain name and presumably registering it in bad faith
cyber tort
a tort committed in cyberspace
cyberlaw
an informal term used to refer to all laws governing electronic communications and transactions, particualarly those conducted via the Internet
cy pres
a near as (possible); equity rule for construing instruments, by which the party's intention is carried out as near as may be, when it would be impossible or illegal to give it literal effect
damages
in general, compensation designed to make an injured party "whole"; in the law of contracts, the compensation due to the nonbreaching party to recover any financial loss or injury caused by a breach of contract.
"danger invites rescue" doctrine
legal principle that if attempted rescues are foreseeable, that rescuers injured while going to someone's rescue can recover their damages from the person(s) who caused the dangerous situation
debenture
an unsecured, long-term corporate debt security
debit card
card that immediately transfers funds from user's bank account upon use
debt
a sum of money due, or obligation owed
debt security
a security issued as evidence of a corporate debt
debt subordination
an agreement whereby one or more creditors of a common debtor agree to defer payment of their claims until another creditor of the same debtor is fully paid
debtor
a person who owes someone (a creditor) money or another obligation
debtor in possession
in Chapter 11 bankruptcy proceedings, a debtor who is allowed to continue in possession of the estate in bankruptcy (the business) and to continue business operations
debtor rehabilitation
bankruptcy code provisions (chapters 11 and 13) call for the debtor's rehabilitation and reorganization, rather than liquidation, with creditors looking to partial or complete satisfaction of their claims from the debtor's future earnings rather than the debtor's property
deceptive advertising
advertising that misleads consumers, either by unjustified claims concerning a product's performance or by the omission of a material fact concerning the product's composition or performance
decertification
removal of a union's certification as exclusive bargaining representative upon ascertainment of a loss of a majority favoring the union pursuant to an election requested by a petitioner
declaration by the inventor
part of a patent application, it states that the inventor has reviewed the patent application and believes that he/she is the first inventor of the invention
declaratory judgment
a court judgment declares for the parties their rights and duties concerning a specific controversy
decree
a judgment, particularly in an equity court
deed
a document by which title to property (usually real property) is transferred.
deed of trust
a document similar to a mortgage; when a debtor's purchase of real property is financed (i.e., he/she obtains a loan), a deed of trust conveys title to, but not possession of, the real property to a trustee (someone other than the debtor or creditor), who holds title as security for the debit.
de facto corporation
a corporation that has not been properly formed even though the incorporators may have made a good-faith effort to do so.
compare de jure corporation
defamation
a tort; a false communication, oral (slander) or written or otherwise recorded (libel), by the defendant to a third person that harms the plaintiff's reputation
default
1. failure to perform a duty as promised in a contract, negotiable instrument, deed, loan, or other transaction 2. for loans, an event triggering the lender's right to terminate the loan, accelerate the repayment obligations, and, if the loan is secured, take possession of the property securing the loan.
default judgemnt
judgment for the plaintiff because the defendant failed to respond to a summons or appear at trial. (Plaintiff's failure to appear may result in dismissal of the case.)
defect
something wrong, inadequate, or improper in the manufacture, design, packaging, warning, or safety measures of a product
defendant
the person against whom a criminal prosecution or civil action is filed
defense
that which a defendant offers as a reason why the plaintiff should not recover what he/she seeks
deficiency judgment
a judgment against the debtor (mortgagor) for the remaining amount if a creditor (mortgagee) is still owed money on a secured debt (mortgage) after the collateral (mortgaged property) has been sold and the proceeds applied toward payment of the debt
definiteness
in contract law, a requirement that an offer be sufficiently definite and explicit so that, if the offer is accepted, a court in a subsequent dispute has a reasonably certain basis upon which to determine the existence of a breach and to award an appropriate remedy
defraud
to deprive a person of his/her rights or property by use of deceit (fraud, misrepresentation)
de jure corporation
a corporation formed in accordance with all the requirements of the law
compare de facto corporation
Delaware corporation
a corporation chartered in Delaware and subject to the laws of that state
Delaware Court of Chancery
the trial court in Delaware that hears corporate law cases
del credere agency
an agency in which the agent holds harmless the principal against the default of those with whom contracts are made
delegated authority
in administrative law, powers delegated by the legislature to administrative agencies
delegatee
the party to whom the duty has been transferred
delegation
transfer of duties under a contract from one person to another
depecage
a choice-of-law doctrine under which the court is permitted to apply the laws of different states to different issues when more than one state has an interest in the outcome of a case
deposition
pretrial discovery involving sworn testimony by a party or any other witness, usually recorded and transcribed by a court reporter or notary public; testimony; ordinarily taken in response to oral questions from the parties' attorneys
delegator
the obligor who transferred his/her duty to another party (the delegatee)
delivery
the actual or constructive (implied or inferred) transfer of goods or of an instrument from one person to another
demand
a request by one person that another person perform an act (e.g., pay an instrument) the performance of which the first person is entitled to receive
demand paper
an instrument payable on demand; a negotiable instrument that either (a) expressly states it is payable on demand; presentation, and/or sight, or (b) does not state a time for payment
de minimis
part of the Latin phrase de minimis non curat lex, "the law does not concern itself with trifles"; thus, trifling, of no legal consequence
demurrer
a motion to dismiss; an initial pleading by the defendant alleging that the complaint fails to state a cause of action
de novo
(latin) "new"; a new proceeding without regard to prior legal actions
denial
a defense claiming the plaintiff's claim is untrue
depository bank
the bank where the holder or payee has an account
depreciation
a decline in an asset's value because of use, wear, or obsolescence
derivative suit
a suit brought by one or more shareholders on behalf of the corporation and for its benefit, claiming waste of corporate assets by directors or corporate principals
descent
succession to ownership of an estate by inheritance or any act of law, not by purchase
design patent
a patent that protects any novel, original, and ornamental design for an article of manufacture
destination bill of lading
a bill of lading that is issued at the destination (rather than at the place of shipment) or at any other designated place to ensure that the bill of lading will be available at the destination in advance of the actual arrival of goods
destination contract
a contract that passes the risk of loss to the buyer when the goods are delivered to the specified destination
detriment
in the law of contracts, forbearance serving as consideration or value
detrimental reliance
the concept that an offeree has right against the offeror because the offeree changed his/her position due to justifiable reliance on an offer
devise
to bequeath property, usually real property, by a will
dicta
short for the Latin word obiter dicta, "statements in passing"; statements in a judicial opinion that are unnecessary for the decision of the case; dicta are not binding, nor do they carry the force of precedent, as do arguments intrinsic to a judicial holding (singluar form: dictum)
direct damages
damages immediately and directly caused by breach of contract
direct effects doctrine
the European Court of Justice doctrine that provides that when a European Union (EU) law or treaty provision is very clear, it becomes immediately effective as law in all EU nations
direct liability
direct responsibility of a principal for torts committed by his/her agent under certain circumstances
directed verdict
a judge's decision that one side has not presented evidence sufficient to support a verdict in its favor; thus the court renders a judgment in favor of the other party immediately before jury deliberations begin
directive
a European Union (EU) law that establishes an EU standard but allows each member to enact a law in its own nation to implement that law
director
a person elected by the shareholders to serve on a board that oversees the management of a corporation
directorates general
the cabinet subdivisions of the EU Commission, each one having a particular area of responsibility
disability
a physical or mental impairment that limits a major life function
disaffirmance
cancellation or rejection of a contract made by a person during his/her minority upon reaching the age of majority or within a reasonable time thereafter
discharge
1. the termination or completion of a contract 2. in commercial paper, the removal of parties' liability on an instrument, usually by payment 3. the release of an employee from his/her employment 4. in bankruptcy law, the release of a debtor from his/her debts
disclaimer
1. a denial of warranty 2. in negotiable instruments law, an indorsement phrase (most frequently, "without recourse") that places subsequent holders on notice that the indorser willl not be liable if the instrument is not paid
disclosed principal
a principal/agency relationship in which a third party knows, or should know, that the agent is acting for a principal, and the third party knows the identity of the principal. The agent thus has no personal responsibility.
discount shares
shares issued for less than par or stated value; a share holder who purchases shares at discount is liable to the corporation for the amount of the discount
discovery
pretrial procedures by which the parties to a lawsuit obtain information from other parties and from potential witnesses
disgorge
to give up illegally gained profits by court order to prevent unjust enrichment
dishonor
to refuse to pay (or accept for later payment) an instrument
disparagement
trade libel; a business defamation that involves injurious falsehoods about a product or a competitor's reputation
disparagement of property
an economically injurious falsehood made about another's product or property. A general term for torts that are more specifically referred to as slander of quality or slander of title
dispute negotiation
backward looking negotiation that addresses past events that have cause disagreement
dissenting shareholder
one who opposes a fundamental change and has the right to receive the fair value of his/her shares
dissociation
the end of a relationship with a partnership
dissolution
1. the termination of a corporation's existence 2. a change in partners' relationship cause when one partner ceases, generally because of death or voluntary or involuntary withdrawal, to be associated with the partnership business
distribution
a distribution of a corporate asset to the shareholders
distribution of assets
in the dissolution of a partnership, after winding up is completed the distribution of partnership assets to creditors and partners
distributive negotiations
negotiations in which the only issue is the distribution of the fix pie
also called zero sum negotiations
distributorship
a business arrangement (e.g., franchise) in which a manufacturer licenses dealers to sell products
diversity jurisdiction
the authority of federal courts to hear a civil case based on state law if the case involves parties from different states and the amount in controversy is more than $75,000
divestiture
compulsory sale or other removal, by a business entity, of assets acquired in violation of antitrust laws
divided ownership
type of fixture dispute that arise when the owner of a chattel (for example, a tenant) annexes it to the land of another (e.g., a landlord) requiring a determination of whether the attached article now belongs to the landowner
divisibility
a contract doctrine used to determine when a party who has partially performed, but has failed to render complete performance, is entitled to recover for the part performance. If a contract is divisible, performance of a divisible part entitles the party to the agreed exchange for that part, despite nonperformance of other parts of the contract. Generally, a contract is divisible if full performance can be divided into corresponding pairs of part performances so that the exchange of part performances can be regarded as agreed equivalents
dividend
a distribution of cash or stock to the shareholders of a corporation
division of powers
the arrangement in which constitutions (e.g., the U.S. Constitution) give to each branch of government a different, major area of responsibility: legislative (law making), executive (law enforcement), or judicial (law interpretation)
docket
in the court records of a case, a book or case jacket briefly stating all pleadings, hearings, and other actions in the case
doctrine of equivalents
the doctrine that there is a patent infringements when a patent is not literally copied but is replicated to the extent that the infringer has created a product or process working substantially the same way and accomplishing substantially the same result as the original