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Legal explanations - Law terms
Category: Legal
Date & country: 25/02/2010, SG
Words: 2570

v. Although there is apparent similarity, the argument that the rule in a decision by an appeals court does not apply to a certain case. It is "distinguished."

1) n. The confiscation of another's possessions in an effort to force a claim's payment. Generally, this is illegal without a court order. 2) adj. Negative circumstances that result in the lowest price.

v. 1) The allocation of an estate or trust's assets according to the terms of a deceased's will or trust when someone has passed away. When a will does not exist, the distribution occurs according to the laws of descent and distribution. 2) The allocation of a corporation or business's profits or assets.

District Attorney
(D.A.) n. Elected official who is responsible for prosecuting crimes for their designated district or county. They manage the prosecutor's office, investigate alleged crimes, and file criminal charges or present the evidence to a Grand Jury in order to bring an indictment for a crime. The District Attorney is referred to as ...

District Court
"n. 1) A federal case's trial court which is either for all or a portion of the state. 2) In some states, a local court.

Disturbing The Peace
n. The unsettling of proper order by creating loud noise by fighting or conducting other unsocial behavior that upsets people. Punishable by either a fine or brief term in jail, disturbing the peace is considered a misdemeanor.

n. A system for providing first-time offenders in lesser crimes the ability to perform community service, repay for damage due to the crime, obtain alcohol or drug treatment or counseling. The charges may be dismissed if the defendant cooperates and the diversion is successful. Typically, a diversion will not be granted for second offenses.

Diversity Jurisdiction
"Provision enabling a federal court to rule in a case that involves parties from two different states. However, there must be greater than $75,000 worth of damages being sought.

Diversity Of Citizenship
n. A case is placed under federal court jurisdiction because the opposing parties in a lawsuit are citizens of different states or of a foreign country. This includes corporations that are incorporated or doing business in different states and is pursuant to Article III, section 2 of the U.S. Constitution and the federal Judicial Code if the contro...

n. Voluntary or court-ordered forfeit of a possession or right. Common result to antitrust actions to prevent a monopoly or other restraint of trade.

n. The act which strips one's investment from an entity.

n. A share of profit that is distributed to shareholders for the amount of shares that are owned. The portion of profit realized is determined by the amount of a corporation's shares of stock and rate of distribution that was approved by the board of directors or management. Stock dividends can take the form of stock shares or money.

1) n. A marriage's obliteration through legal action requiring a petition or complaint for divorce. A minimal illustration of fault is required for some states, but incompatibility is usually sufficient to grant divorce. When issuing a divorce decree, the substantive issues include the division of property, child support and custody, alimony, child...

Divorce Agreement
"The agreement during a divorce that divides the property, child support, visitation rights, and alimony or child support. This settlement agreement is approved by the court, is submitted in writing and signed by both parties.

n. Deoxyribonucleic acid, which is a chromosomal double chain that exists in the nucleus of each living cell. DNA determines an individual's hereditary characteristics and can be used to distinguish and identify an individual from another person. This becomes critical when blood, hair, skin, or any other part of the body is used to prove one's invo...

n. Any paper with writing on it. A generic term popular amongst attorneys. It could technically include a piece of wood with a will or message scratched onto it.

Documentary Evidence
n. Papers which are allowed as evidence in a hearing or trial. Documents are differ from oral testimony. Opposing attorneys may object to documentary evidence being admitted to court and has to be proved by other evidence to be authentic.

Doing Business
v. Conducting a corporation's normal activities on a regular basis. This distinction is significant when determining whether a corporation is "doing business" in another state so that a complaint may be served, determining whether it is subject to out-of-state taxes.

Domestic Partners
n. Couples who have not married, but have long-standing relationships and live together. Domestic partners are often entitled to some marriage benefits such as health plans.

Domestic Relations
n. Term used to refer to the legal field dealing with divorce, dissolution, annulment, child custody, child support and alimony.

Domestic Violence
n. The physical beating of a wife, girlfriend, or children, typically by the woman's male partner although it can also include female violence against a male and is recognized as an antisocial mental illness. Women continue to endure this conduct or fail to protect a child due to her dependence, low self-esteem and/or fear of leaving. Consequently,...

n. Location of a person's permanent principal home to which he/she returns or intends to return. The definition is significant when probating a deceased's estate and determining in which state to file, assess income or inheritance taxes, where a party can commence divorce proceedings, or whether a "diversity of citizenship" between two pa...

Dominant Estate
n. Term used in real estate law to refer to the piece of property that the rights are retained to despite splitting off the majority of the property to another party. For example: retaining the rights to a driveway or utilities. The servient estate is the property that was sold off which has an easement. These are also referred to as dominant tenem...

Dominant Tenement

n. Contribution or gift. May qualify as an income tax deduction if made to a qualified non-profit charity, religious, educational or public service organization.

Donative Intent
n. A conscientious desire to make a gift. This is distinguishable from providing something for nothing by mistake or under pressure.

n. The entity or person who receives an outright donation or gift.

n. The entity or person who makes an outright donation or gift.

Double Jeopardy
n. Trying someone a second time for an offense which he/she was previously acquitted. Despite new incriminating evidence being discovered, the Fifth Amendment to the Constitution prohibits double jeopardy. Rarely, a person can be tried for a different crime even if some of the facts that were used in the trial in which they were acquitted are used ...

Double Taxation
n. Property tax which is taken twice in one year for the same purpose. This practice is generally prohibited in situations such as a transfer of property whose tax is imposed on a new owner even though it has been taxed once before. However, if all of a jurisdiction's properties are taxed twice in the same year, the practice is legal since it is no...

n. The widow's common law right to one-third of her late husband's estate. This old English common law is still law in a few states. A widow's election enables her to choose whether to accept the dower rights or the terms of her husband's will. A husband's corresponding right is to the wife's entire estate and if children are living, then to the li...

n. Money and personal property that a bride brings to a marriage which becomes his property. Dowry sill exists in the Civil Code of Louisiana.

1) n. A bill of exchange or check which directs one party to take money from the drafter's bank account and pay it to another entity or person. 2) v. To sign and prepare a check or bill of exchange. 3) n. A document which is not final and set for discussion, rewriting and/or editing. For example: a blood, a proposal, or a legislative bill. 4) n. Un...

Dram Shop Rule
n. A statute that holds a business strictly liable to anyone injured by a drunken patron or guest if the business sells an alcoholic drink or a host serves liquor to someone who is obviously intoxicated. California recently banned this strict liability. Since there is always an intervening cause, it is often difficult to prove that the liquor bough...

v. 1) The preparation of a document. 2) The preparation and signing of a bill of exchange or check.

n. The person who is to be paid the bill of exchange or check.

n. The party who endorses a bill of exchange.

Driving Under The Influence
(DUI) n. "Drunk driving." Operating a motor vehicle with a blood alcohol content that is higher than the legal limit which has been set at a level at which a person cannot safely drive. The statutes range from .08 to .10 for adults which equates to 8/100ths to one-tenth of one percent by weight of alcohol to the we...

Driving While Intoxicated
(DWI) Refer to the definition for driving under the influence.

Drop Dead Date
n. The last date which an event must occur, otherwise consequences will immediate occur. The drop dead date is usually in a contract's provision or set by a court order.

n. and adj. Outstanding as of a specific date, but does not necessarily mean that a debt is due. A popular legal redundancy is "due, owing and unpaid."

Due And Owing

Due Care
n. Behavior that a sensible woman or man will implement in a particular situation when seeking the safety of others. If due care was utilized, then an injured party cannot prove negligence. Juries have to decide what a "reasonable" man or woman would do in a particular situation. This is one of the nebulous standards cannot prove negligen...

Due Process Of Law
n. A basic principle of fairness which is applied in all legal matters in the courts, including criminal and civil matters. In order for prejudicial or unequal treatment not to occur, all legal procedures set by statute and court practice must be followed for each individual. While a bit imprecise, the term is gauged by its intention to safeguard p...

Due, Owing And Unpaid

Durable Power Of Attorney
A legal document that transfers the right to act on your behalf to another person. Used when someone has become incapacitated or incompetent. Refer to the definition for living will.

n. Compelling someone to act against their wishes or interests through the use of force, false imprisonment or threats. A court may determine a document null and void if duress is used to get someone to execute a will or sign an agreement. Defendants may raise duress as their defense in partaking in an alleged crime. The most famous case is that of...

n. 1) Legal obligation that can result in a liability if a breach occurs. A duty must be proven to exist by defendant to plaintiff. The duty can be a duty of care or a duty to perform. 2) Taxation on imports.

Duty Of Care
n. Obligation that a sensible person would use in the circumstances when acting towards others and the public. If the actions of a person are not made with watchfulness, attention, caution, and prudence, their actions are considered negligent. Consequently, the resulting damages may be claimed as negligence in a lawsuit.

Dying Declaration
n. Statement made by a mortally injured person, indicating who has injured them and/or the circumstances surrounding their injury. The injured is aware that he/she is about to die and while the declaration is hearsay, it is admissible since it is believed that the dying person does not have any reason to lie.

Earnest Payment
n. a deposit paid to demonstrate commitment and to bind a contract, with the remainder due at a particular time. If the contract is breached by failure to pay, then the earnest payment is kept by the recipient as pre-determined (liquidated) or committed damages

n. the right to use the real property of another for a specific purpose. The easement is itself a real property interest, but legal title to the underlying land is retained by the original owner for all other purposes. Typical easements are for access to another property (often redundantly stated "access and egress," since entry and exit are over t...

n. way of departure. A word usually used in conjunction with "access" or "ingress."

n. popular acronym for environmental impact report, required by many states as part of the application to a county or city for approval of a land development or project

n. a lawsuit brought to remove a party who is occupying real property. This is not the same as an unlawful detainer (eviction) suit against a non-paying or unsatisfactory tenant. It is against someone who has tried to claim title to the property. Example: George Grabby lives on a ranch which he claims he has inherited from his great uncle, but Bett...

Ejusdem Generis
(eh-youse-dem generous) v adj. Latin for "of the same kind," used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, m...

Elder Law
n. a specialty in legal practice, covering estate planning, wills, trusts, arrangements for care, social security and retirement benefits, protection against elder abuse (physical, emotional and financial), and other concerns of older people. As more people live longer it has become an increasingly important field. (definition revised: 9/02)

Election Of Remedies
n. an outmoded requirement that if a plaintiff (party filing suit) asks for two remedies based on legal theories which are inconsistent (a judge can grant only one or the other), the plaintiff must decide which one is the most provable and which one he/she really wants to pursue, usually just before the trial begins. Example: suing someone for both...

Election Under The Will
n. in those states which have statutes which give a widow a particular percentage of the late husband's estate (such as dower), the surviving wife may elect to take that percentage instead of any lesser amount (or assets with unacceptable conditions such as an estate which will be cancelled if she remarries) left to her under his will

(eh-luh-moss-uh-nary) adj. charitable, as applied to a purpose or institution

n. 1) an essential requirement to a cause of action (the right to bring a lawsuit to enforce a particular right). Each cause of action (negligence, breach of contract, trespass, assault, etc.) is made up of a basic set of elements which must be alleged and proved. Each charge of a criminal offense requires allegation and proof of its elements. 2) e...

n. freeing a minor child from the control of parents and allowing the minor to live on his/her own or under the control of others. It usually applies to adolescents who leave the parents' household by agreement or demand. Emancipation may also end the responsibility of a parent for the acts of a child, including debts, negligence or criminal acts. ...

n. the crime of stealing the funds or property of an employer, company or government or misappropriating money or assets held in trust

n. a person who commits the crime of embezzlement by fraudulently taking funds or property of an employer or trust

n. crops to which a tenant who cultivated the land is entitled by agreement with the owner. If the tenant dies before harvest the crop will become the property of his/her estate

n. a sudden, unforeseen happening which requires action to correct or to protect lives and/or property

Eminent Domain
n. the power of a governmental entity (federal, state, county or city government, school district, hospital district or other agencies) to take private real estate for public use, with or without the permission of the owner. The Fifth Amendment to the Constitution provides that "private property [may not] be taken for public use without just compen...

n. salary, wages and benefits paid for employment or an office held

Emotional Distress
n. an increasingly popular basis for a claim of damages in lawsuits for injury due to the negligence or intentional acts of another. Originally damages for emotional distress were only awardable in conjunction with damages for actual physical harm. Recently courts in many states, including New York and California, have recognized a right to an awar...

n. a person who is hired for a wage, salary, fee or payment to perform work for an employer. In agency law the employee is called an agent and the employer is called the principal. This is important to determine if one is acting as employee when injured (for worker's compensation) or when he/she causes damage to another, thereby making the employer...

n. a person or entity which hires the services of another called a principal in the law of agency

n. the hiring of a person for compensation. It is important to determine if acts occurred in the "scope of employment" to establish the possible responsibility of the employer to the employee for injuries on the job or to the public for acts of the employee

En Banc
(on bonk) French for "in the bench," it signifies a decision by the full court of all the appeals judges in jurisdictions where there is more than one three- or four-judge panel. The larger number sit in judgment when the court feels there is a particularly significant issue at stake or when requested by one or both parties to the case and agreed t...

Enabling Clause
n. a provision in a new statute which empowers a particular public official (Governor, State Treasurer) to put it into effect, including making expenditures

(inclosure)n. land bounded by a fence, wall, hedge, ditch or other physical evidence of boundary. Unfortunately, too often these creations are not included among the actual legally described boundaries and cause legal problems

v. to build a structure which is in whole or in part across the property line of another's real property. This may occur due to incorrect surveys, guesses or miscalculations by builders and/or owners when erecting a building. The solutions vary from giving the encroaching party an easement or lease (for a price, usually) for the lifetime of the bui...

n. the act of building a structure which is in whole or in part on a neighbor's property

(incumbrance)n. a general term for any claim or lien on a parcel of real property. These include: mortgages, deeds of trust, recorded abstracts of judgment, unpaid real property taxes, tax liens, mechanic's liens, easements and water or timber rights. While the owner has title, any encumbrance is usually on record (with the County Recorder or Recor...

(Indorse) v. 1) to sign one's name to the back of a check, bill of exchange or other negotiable instrument with the intention of making it cashable or transferable. 2) to pledge support to a program, proposal or candidate

(indorsement)n. 1) the act of the owner or payee signing his/her name to the back of a check, bill of exchange or other negotiable instrument so as to make it payable to another or cashable by any person. An endorsement may be made after a specific direction ("pay to Dolly Madison" or "for deposit only"), called a qualified endorsement, or with no ...

n. the creation of a fund, often by gift or bequest from a dead person's estate, for the maintenance of a public institution, particularly a college, university or scholarship

v. for a court to order that someone either do a specific act, cease a course of conduct or be prohibited from committing a certain act. To obtain such an order, called an injunction, a private party or public agency has to file a petition for a writ of injunction, serve it on the party he/she/it hopes to be enjoined, allowing time for a written re...

n. 1) to exercise a right. 2) pleasure. 3) the use of funds or occupancy of property. Sometimes this is used in the phrase "quiet enjoyment" which means one is entitled to be free of noise or interference

Enter A Judgment
v. to officially record a judgment on the "judgment roll," which entry is normally performed by the court clerk once the exact wording of the judgment has been prepared or approved and signed by the trial judge. All times for appeal and other post-judgment actions are based on the date of the entry of judgment and not the date when the judgment is ...

n. a general term for any institution, company, corporation, partnership, government agency, university or any other organization which is distinguished from individuals

n. in criminal law, the act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. The key to entrapment is whether the idea for the commission or encouragement of the criminal act originated with the police or government agents instead of w...

Entry Of Judgment
n. the placement of a judgment on the official roll of judgments

Environmental Impact Report
n. a study of all the factors which a land development or construction project would have on the environment in the area, including population, traffic, schools, fire protection, endangered species, archeological artifacts and community beauty. Many states require such reports be submitted to local governments before the development or project can ...

Environmental Law
n. a body of state and federal statutes intended to protect the environment, wildlife, land and beauty, prevent pollution or over-cutting of forests, save endangered species, conserve water, develop and follow general plans and prevent damaging practices. These laws often give individuals and groups the right to bring legal actions or seek court or...

Equal Opportunity
1) n. a right supposedly guaranteed by both federal and many state laws against any discrimination in employment, education, housing or credit rights due to a person's race, color, sex (or sometimes sexual orientation), religion, national origin, age or handicap. A person who believes he/she has not been granted equal opportunity or has been outrig...

Equal Protection Of The Law
n. the right of all persons to have the same access to the law and courts and to be treated equally by the law and courts, both in procedures and in the substance of the law. It is akin to the right to due process of law, but in particular applies to equal treatment as an element of fundamental fairness. The most famous case on the subject is Brown...

adj. 1) just, based on fairness and not legal technicalities. 2) refers to positive remedies (orders to do something, not money damages) employed by the courts to solve disputes or give relief

Equitable Estoppel
n. where a court will not grant a judgment or other legal relief to a party who has not acted fairly; for example, by having made false representations or concealing material facts from the other party. This illustrates the legal maxim: "he who seeks equity, must do equity." Example: Larry Landlord rents space to Dora Dressmaker in his shopping cen...

Equitable Lien
n. a lien on property imposed by a court in order to achieve fairness, particularly when someone has possession of property which he/she holds for another

n. 1) a venerable group of rights and procedures to provide fairness, unhampered by the narrow strictures of the old common law or other technical requirements of the law. In essence courts do the fair thing by court orders such as correction of property lines, taking possession of assets, imposing a lien, dividing assets, or injunctive relief (ord...

Equity Of Redemption
n. the right of a mortgagor (person owing on a loan or debt against their real property), after commencement of foreclosure proceedings, to "cure" his/her default by making delinquent payments. The mortgagor also must pay all accumulated costs as well as the delinquency to keep the property

n., adj. equal in value, force or meaning

(air-go)conj. Latin for "therefore," often used in legal writings. Its most famous use was in Cogito, ergo sum: "I think, therefore I am" principle by French philosopher Rene Descartes (1596-1650)

adj. 1) in error, wrong. 2) not according to established law, particularly in a legal decision or court ruling

n. a mistake by a judge in procedure or in substantive law, during a hearing, upon petitions or motions, denial of rights, during the conduct of a trial (either granting or denying objections), on approving or denying jury instructions, on a judgment not supported by facts or applicable law or any other step in the judicial process. If a majority o...