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GLOSSARY OF GENERAL LEGAL TERMS
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
Law Office of James E. Lund, APC - Glossary of General Legal Terms
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AB INITIO

Latin for "from the beginning."

abatement of action

A suit which has been quashed.

ABSOLUTE DIVORCE

The final ending of a marriage. Both parties are legally free to remarry.

abstract of record

A summary of the case.

accord

An agreement between the parties in a lawsuit which means they can't sue again.

accord and satisfaction

An agreement to give and take something to settle the claim.

ACKNOWLEDGEMENT OF SERVICE

This is a document which confirms that another document, such as a summons, writ or other procedural document has been served by one party to a legal action on the other party. Often it will incorporate an indication that the receiving party intends to contest the issues contained in the original document.

ACTION

A lawsuit or proceeding in a court of law.

action in personam

Action "against the person", personal liability. As opposed to action in rem, which is an action for the recovery of a specific object, such as an automobile.

action in rem

Action "against the thing" as compared to personal actions (in personam). Usually, property is involved.

ACTUAL MALICE

To win a defamation suit, public officials or prominent people, such as political candidates or movie stars, must prove that the offender made a false statement with actual malice. This means the statement was made with knowledge that it was false or with serious doubts about whether it was true.

additur

The power of the trial court to increase the damage award made by a jury. There is no additur in federal courts.

adjudication

Giving or pronouncing a judgment or decree, or rendering a decision.

ADMINISTRATOR

Person appointed to oversee the handling of an estate when there is no will.

ADMINISTRATOR OF AN ESTATE

The person who manages the distribution of an estate is called an executor if there is a Will. If there is no Will, the person is called the administrator.

ADVERSE POSSESSION

This is where someone gains rights over or title to land owned by another person by reason of their continued use of the right or land. Sometimes known as "squatters’ rights", adverse possession takes two principal forms - the acquisition of a right such as a right of way, or the acquisition of an actual title to the land itself. To achieve a title to the land (known as a "possessory title") the occupier must openly occupy the land in question without complaint from the owner for a period of time, usually 12 years.

AFFIDAVIT

A written statement made under oath.

affirmative defense

A defense which does not necessarily refute an allegation but offers new matter which may defeat the right to recovery.

AGE OF MAJORITY

The age when a person acquires all the rights and responsibilities of being an adult. In most states, the age is 18.

AGREEMENT

A verbal or written resolution of disputed issues.

ALIAS SUMMONS

Another summons when the original is not served on the defendant.

ALIMONY

A payment of support provided by one spouse to the other.

ALIMONY

Also called maintenance or spousal support. In a divorce or separation, the money paid by one spouse to the other in order to fulfill the financial obligation that comes with marriage.

ALTERNATIVE DISPUTE RESOLUTION

Methods for resolving problems without going to court.

AMICUS CURIAE

Latin for "friend of the court." Refers to a party that is allowed to provide information (usually in the form of a legal brief) to a court even though the party is not directly involved in the case at hand.

ANNULMENT

A legal decree that states that a marriage was never valid. Has the legal effect of wiping out a marriage as though it never existed.

ANSWER

In a civil case, the defendant's written response to the plaintiff's complaint. It must be filed within a specified period of time, and it either admits to or (more typically) denies the factual or legal basis for liability.

APPEAL

A request to a supervisory court, usually composed of a panel of judges, to overturn the legal ruling of a lower court.

appellant

The party appealing a final decision or judgment.

appellate jurisdiction

The appellate court has the right to review and revise the lower court decision.

appellee

The party against whom an appeal is taken.

ARBITRATION

A method of alternative dispute resolution in which the disputing parties agree to abide by the decision of an arbitrator.

ARRAIGNMENT

The initial appearance before a judge in a criminal case. At an arraignment, the charges against the defendant are read, a lawyer is appointed if the defendant cannot afford one, and the defendant's plea is entered.

arrest of judgment

Postponing the effect of a judgment.

ARTICLES OF INCORPORATION

A document that must be filed with a state in order to incorporate. Among the things it typically must include is the name and address of the corporation, its general purpose and the number and type of shares of stock to be issued.

ASSIGNMENT

The transfer of legal rights, such as the time left on a lease, from one person to another.

assumption of risk

A defense that says that the plaintiff "knew the job was dangerous when he took it," as they say.

ASSUMPTION OF RISK

A defense raised in personal injury lawsuits. Asserts that the plaintiff knew that a particular activity was dangerous and thus bears all responsibility for any injury that resulted.

ASYLUM SEEKER

A foreigner, already in the U.S. or at the border, who seeks refuge, claiming an inability or unwillingness to return to the home country because of a well-founded fear of persecution.

at issue

When the parties to a suit come to a point in the pleadings which is affirmed on one side and denied on the other, they are said to be "at issue" and ready for trial.

attachment

The plaintiff gets a lien on the defendant's property.

attorney of record

Attorney who name appears in the permanent files of a case.

AT-WILL EMPLOYMENT

An employment relationship where the employer has the right to fire a worker for any cause at any time--usually without any notice.

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BAD FAITH

Dishonesty or fraud in a transaction, such as entering into an agreement with no intention of ever living up to its terms, or knowingly misrepresenting the quality of something that is being bought or sold.

BAIL

The money a defendant pays as a guarantee that he or she will show up in court at a later date. For most serious crimes, a judge sets bail during the arraignment.

BAIL SCHEDULE

The list that sets the amount of bail a defendant is required to pay based on what the charge is. A judge may be able to reduce the amount.

BAILMENT

A legal relationship created when a person gives property to someone else for safekeeping. To create a bailment the other party must knowingly have exclusive control over the property. The receiver must use reasonable care to protect the property.

BANKRUPTCY

Insolvency; a process governed by federal law to help when people cannot or will not pay their debts.

BENCH TRIAL

Also called court trial. A trial held before a judge and without a jury.

BENEFICIARY

Person named in a will or insurance policy to receive money or property; person who receives benefits from a trust.

BEQUEST

A gift of property other than land usually by will.

best evidence

In proving what's in a document, the best evidence is the document itself, and unless it's not available, no other evidence is admissible to prove it.

BEYOND A REASONABLE DOUBT

The highest level of proof required to win a case. Necessary to get a guilty verdict in criminal cases.

BIFURCATION

Splitting a trial into two parts: A liability phase and a penalty phase. In some cases, a new jury may be empanelled to deliberate for the penalty phase.

bill of particulars

A written statement specifying the demands in a civil action. The purpose of the bill of particulars is to give the defendants more information to enable them to prepare a defense.

BILL OF RIGHTS

The first ten amendments to the U.S. Constitution.

BINDER

An outline of the basic terms of a proposed sales contract between a buyer and a seller.

BOARD OF DIRECTORS

The group of people elected by a corporation's shareholders to make major business decisions for the company.

BOND

A document with which one party promises to pay another within a specified amount of time. Bonds are used for many things, including borrowing money or guaranteeing payment of money.

BOOKING

Part of the process of being arrested in which the details of who a person is and why he or she was arrested are recorded into the police records.

breach

Breaking a law, right, obligation, or duty, either by doing an act or failing to do an act.

BRIEF

A written document that outlines a party's legal arguments in a case.

BURDEN OF PROOF

The duty of a party in a lawsuit to persuade the judge or the jury that enough facts exist to prove the allegations of the case. Different levels of proof are required depending on the type of case.

BUY-SELL AGREEMENT

An agreement among business partners that specifies how shares in the business are to be transferred in the case of a co-owner's death.

BY-LAWS

A corporation's rules and regulations. They typically specify the number and respective duties of directors and officers and govern how the business is run.

BYPASS TRUST

Also called a marital life estate or an A-B trust. A trust designed to help couples with combined assets over $600,000 save money on estate taxes. A bypass trust allows each member of a couple to use the $600,000 estate tax exemption.

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CAPITAL GAIN

The profit made from the sale of a capital asset, such as real estate, a house, jewelry or stocks and bonds.

CAPITAL LOSS

The loss that results from the sale of a capital asset, such as real estate, a house, jewelry or stocks and bonds. Also the loss that results from an unpaid, non-business (personal) loan.

caption

The heading or introductory clause of papers connected with a case in court, which shows the names of the parties, name of the court, docket number of the case, etc.

CASE LAW

Also known as common law. The law created by judges when deciding individual disputes or cases.

CASE OF FIRST IMPRESSION

A novel legal question that comes before a court.

cause of action

A claim sufficient to justify a legal right to sue.

caveat

"Let him beware". A formal warning given by a party to a court or judge against the performance of certain acts within his or her power and jurisdiction.

CAVEAT EMPTOR

Latin for "buyer beware." This rule generally applies to all sales between individuals. It gives the buyer full responsibility for determining the quality of the goods in question. The seller generally has no duty to offer warranties or to disclose defects in the goods.

cease and desist order

An order of an administrative agency or court prohibiting a person or business from continuing a particular course of conduct.

certification of need

A judicial certification process used for determining the need for additional judgeships.

CERTIORARI

Latin that means "to be informed of." Refers to the order a court issues so that it can review the decision and proceedings in a lower court and determine whether there were any irregularities. When such an order is made, it is said that the court has granted certiorari.

CHALLENGE FOR CAUSE

Ask that a potential juror be rejected if it is revealed that for some reason he or she is unable or unwilling to set aside preconceptions and pay attention only to the evidence.

chambers

A judge's private office in the courthouse.

CHANGE OF VENUE

A change in the location of a trial, usually granted to avoid prejudice against one of the parties.

CHAPTER 13 BANKRUPTCY

A type of bankruptcy in which a person keeps his assets and pays creditors according to an approved plan.

CHAPTER 7 BANKRUPTCY

A type of bankruptcy in which a person's assets are liquidated (collected and sold) and the proceeds are distributed to the creditors.

charge

The judge's instructions to jury on it duties, on the law involved in the case and on how the law in the case must be applied. The charge is always given just before jury deliberations.

CHARGING LIEN

Entitles a lawyer who has sued someone on a client's behalf the right to be paid from the proceeds of the lawsuit, if there are any, before the client receives those proceeds.

CHILD ABUSE

Defined by state statutes. Usually occurs when a parent purposefully harms a child.

CHILD NEGLECT

Defined by state statutes. Usually arises from a parent's passive indifference to a child's well-being, such as failing to feed a child or leaving a child alone for an extended time.

CHILDREN'S TRUST

A trust set up as part of a will or outside of a will to provide funds for a child.

CIRCUMSTANTIAL EVIDENCE

Indirect evidence that implies something occurred but doesn't directly prove it. If a man accused of embezzling money from his company had made several big-ticket purchases in cash around the time of the alleged embezzlement, that would be circumstantial evidence that he had stolen the money.

citation

An order of the court requiring the appearance of a defendant on a particular day to answer to a particular charge.

civil case

A lawsuit brought to enforce, redress, or protect private rights or to gain payment for a wrong done to a person or party by another person or party. In genera, all types of actions other than criminal proceedings.

CLASS ACTION SUIT

A lawsuit in which one or more parties file a complaint on behalf of themselves and all other people who are "similarly situated" (suffering from the same problem). Often used when a large number of people have comparable claims.

CLEAR AND CONVINCING EVIDENCE

The level of proof sometimes required in a civil case for the plaintiff to prevail. It is more than a preponderance of the evidence but less than beyond a reasonable doubt.

clerk of the court

Court official who keeps court record, files pleadings, motions, and judgment, and administers the oath to juror and witnesses.

CLOSING

In a real estate transaction, this is the final exchange in which the deed is delivered to the buyer, the title is transferred, and the agreed-on costs are paid.

code

A collection, compendium or revision of laws, rules and regulations enacted by legislative authority.

code of criminal procedure

Body of federal or state law dealing with procedural aspects of trial for criminal cases.

CODICIL

A supplement to a will.

COHABITATION AGREEMENT

Also called a living-together contract. A document that spells out the terms of a relationship and often addresses financial issues and how property will be divided if the relationship ends.

COLLATERAL

An asset that a borrower agrees to give up if he or she fails to repay a loan.

COLLECTIVE BARGAINING AGREEMENT

The contract that spells out the terms of employment between a labor union and an employer.

COLLUSION

An agreement between two or more persons that one of the parties brings false charges against the other. In a divorce case, the husband and wife may agree to use adultery as a ground in order to obtain a divorce more quickly, knowing full well that adultery was not committed. Collusion is illegal.

COMITY

A code of etiquette that governs the interactions of courts in different states, localities and foreign countries. Courts generally agree to defer scheduling a trial if the same issues are being tried in a court in another jurisdiction. In addition, courts in this country agree to recognize and enforce the valid legal contracts and court orders of other countries.

COMMON LAW

Also known as case law. The law created by judges when deciding individual disputes or cases.

COMMON LAW MARRIAGE

In some states, a couple is considered married if they meet certain requirements, such as living together as husband and wife for a specific length of time. Such a couple has all the rights and obligations of a traditionally married couple.

COMMUNITY PROPERTY

Property acquired by a couple during their marriage. Refers to the system in some states for dividing the couple's property in a divorce or upon the death of one spouse. In this system, everything a husband and wife acquire once they are married is owned equally (fifty-fifty) by both of them, regardless of who provided the money to purchase the asset or whose name the asset is held in.

COMPARATIVE NEGLIGENCE

Also called comparative fault. A system that allows a party to recover some portion of the damages caused by another party's negligence even if the original person was also partially negligent and responsible for causing the injury. Not all states follow this system.

COMPENSATORY DAMAGES

Money awarded to reimburse actual costs, such as medical bills and lost wages. Also awarded for things that are harder to measure, such as pain and suffering.

competency

A witness's ability to observe, recall and tell under oath what happened.

COMPLAINANT

The one who files the suit, same as plaintiff.

COMPLAINT

In a civil action, the document that initiates a lawsuit. The complaint outlines the alleged facts of the case and the basis for which a legal remedy is sought. In a criminal action, a complaint is the preliminary charge filed by the complaining party, usually with the police or a court.

concurrent jurisdiction

The jurisdiction of two or more courts, each authorized to deal with the same subject.

CONCURRENT SENTENCES

Criminal sentences that can be served at the same time rather than one after the other.

condemnation

The legal process by which real estate of a private owner is taken for public use without the owner's consent, but the owner receives "just compensation".

CONDONATION

The act of forgiving one's spouse who has committed an act of wrongdoing that would constitute a ground for divorce. Condonation generally is proven by living and cohabiting with the spouse after learning that the wrongdoing was committed. It often is used as a defense to a divorce.

CONFLICT OF INTEREST

Refers to a situation when someone, such as a lawyer or public official, has competing professional or personal obligations or personal or financial interests that would make it difficult to fulfill his duties fairly.

CONSECUTIVE SENTENCES

Criminal sentences that must be served one after the other rather than at the same time.

CONSERVATOR

Person appointed to manage the property and finances of another. Sometimes called a guardian.

CONSIDERATION

Something of value that is given in exchange for getting something from another person.

CONSPIRACY

Basically this is an agreement between two or more people to commit a crime. Conspiracy is a crime in its own right and you can be convicted of conspiracy to commit a crime even though the crime itself was never actually committed.

CONTEMPT OF COURT

An action that interferes with a judge's ability to administer justice or that insults the dignity of the court. Disrespectful comments to the judge or a failure to heed a judge's orders could be considered contempt of court. A person found in contempt of court can face financial sanctions and, in some cases, jail time.

CONTINGENCY FEE

Also called a contingent fee. A fee arrangement in which the lawyer is paid out of any damages that are awarded. Typically, the lawyer gets between one-fourth and one-third. If no damages are awarded, there is no fee.

continuance

A court order postponing proceedings.

CONTRACT

An agreement between two or more parties in which an offer is made and accepted, and each party benefits. The agreement can be formal, informal, written, oral or just plain understood. Some contracts are required to be in writing in order to be enforced.

CONTRIBUTORY NEGLIGENCE

Prevents a party from recovering for damages if he or she contributed in any way to the injury. Not all states follow this system.

COPYRIGHT

A person's right to prevent others from copying works that he or she has written, authored or otherwise created.

CORPORATION

An independent entity created to conduct a business. It is owned by shareholders.

CORROBORATIVE WITNESS

A person who testifies for you and backs up your story. If you are asking the court to grant a divorce, you must bring to the hearing a witness who can corroborate your grounds for divorce.

costs

An allowance for expenses in prosecuting or defending a suit. Ordinarily this does not include attorney fees.

counterclaim

A claim presented by a defendant in a civil proceeding in opposition to the claim of a plaintiff.

Court of record

A court in which the proceedings are recorded, transcribed, and maintained as permanent records.

CREDITOR

A person (or institution) to whom money is owed.

CROSS EXAMINATION

The questioning of an opposing party's witness about matters brought up during direct examination.

cross-claim

In a civil proceeding, if there are two or more defendants, one defendant can raise a claim against another defendant.

CUSTODIAN

Under the Uniform Transfers to Minors Act, the person appointed to manage and dispense funds for a child without constricting court supervision and accounting requirements.

CUSTODY-SOLE & JOINT

Refers to the legal arrangements for which a child will live with and how decisions about the child will be made. Custody has two parts: legal and physical. Legal custody is the decision-making part physical custody refers to where the child lives on a regular basis. Generally, the parent the child does not live with will be allowed to have regular visits with the child. Parents can make any custodial arrangement that is in the best interest of their children. The standard for custody is "best interest of the child".

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DAMAGES

The financial compensation awarded to someone who suffered an injury or was harmed by someone else's wrongful act.

DE MINIMIS

An abbreviation of a longer Latin phrase "de minimis non curat lex" which literally means the law is not concerned with trivial matters. The phrase is generally used as a way of categorizing that which is not worth litigating over.

DEBTOR

Person who owes money.

DECISION

The judgment rendered by a court after a consideration of the facts and legal issues before it.

declaratory judgment

One which declares the rights of the parties or expresses the opinion of the courts on a question of law, without ordering anything to be done.

decree

A decision or order of the court. A final decree is one which fully and finally disposes of the litigation. An interlocutory decree is a preliminary decree which is not final.

DEED

A written legal document that describes a piece of property and outlines its boundaries. The seller of a property transfers ownership by delivering the deed to the buyer in exchange for an agreed upon sum of money.

DEFAMATION

The publication of a statement that injures a person's reputation. Libel and slander are defamation.

DEFAULT

The failure to fulfill a legal obligation, such as neglecting to pay back a loan on schedule.

DEFAULT JUDGMENT

A ruling entered against a defendant who fails to answer a summons in a lawsuit.

DEFENDANT

In criminal cases, the person accused of the crime. In civil matters, the person or organization that is being sued.

DEFINED BENEFIT PLAN

A type of retirement plan that specifies how much in benefits it will pay out to a retiree.

DEFINED CONTRIBUTION PLAN

Also called an individual account plan. A type of retirement plan in which the employer pays a specified amount of money each year, which is then divided among the individual accounts of each participating employee. Profit-sharing, employee stock ownership and 401(k) plans are all defined contribution plans.

DEPOSITION

Part of the pre-trial discovery (fact-finding) process in which a witness testifies under oath. A deposition is held out of court with no judge present, but the answers often can be used as evidence in the trial.

DIRECT EVIDENCE

Evidence that stands on its own to prove an alleged fact, such as testimony of a witness who says she saw a defendant pointing a gun at a victim during a robbery.

DIRECT EXAMINATION

The initial questioning of a witness by the party that called the witness.

DIRECTED VERDICT

A judge's order to a jury to return a specified verdict, usually because one of the parties failed to prove its case.

DISBURSEMENTS

Legal expenses that a lawyer passes on to a client, such as for photocopying, overnight mail and messenger services.

DISCOVERY

Part of the pre-trial litigation process during which each party requests relevant information and documents from the other side in an attempt to "discover" pertinent facts.

DISMISSAL WITH PREJUDICE

When a case is dismissed for good reason and the plaintiff is barred from bringing an action on the same claim.

DISMISSAL WITHOUT PREJUDICE

When a case is dismissed but the plaintiff is allowed to bring a new suit on the same claim.

dissent

A term commonly issued to denote the disagreement of one or more judges of a court of appeals with the decision of the majority.

DISSOLUTION

A dissolution is the act of ending something, usually a company, partnership, marriage or joint venture, usually by order of a court.

docket

A brief entry or the book containing such entries of any proceeding in court.

domicile

That place where a person has his true and permanent home. A person may have several residences, but only one domicile.

DOUBLE JEOPARDY

Being tried twice for the same offense.

DUE PROCESS

The idea that laws and legal proceedings must be fair. The Constitution guarantees that the government cannot take away a person's basic rights to "life, liberty or property, without due process of law." Courts have issued numerous rulings about what this means in particular cases.

DUTY TO WARN

The legal obligation to warn people of a danger. Typically, manufacturers of hazardous products have a duty to warn customers of a product's potential dangers and to advise users of any precautions they should take.

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EASEMENT

Gives one party the right to go onto another party's property. Utilities often get easements that allow them to run pipes or phone lines beneath private property.

ELECTIVE SHARE

Refers to probate laws that allow a spouse to take a certain portion of an estate when the other spouse dies, regardless of what was written in the spouse's will.

EMANCIPATION

When a minor has achieved independence from his or her parents, often by getting married before reaching age 18 or by becoming fully self-supporting.

Eminent domain

The power to take private property for public use by the state and municipalities.

EN BANC

French for "by the full court." When all the members of an appellate court hear an argument, they are sitting en banc.

ENCUMBRANCE

Any claim or restriction on a property's title.

enjoin

To order a person to perform, or to abstain and desist from performing a specified act or course of conduct. See injunction.

EQUAL ACCESS ACT

A law passed by Congress in 1984. It requires public schools to allow students who to meet before and after classes for religious purposes, including prayer, if they want to do so. If all extracurricular activities are prohibited by a school, it can also nix the prayer meetings. Otherwise, it has to allow them.

EQUAL PROTECTION CLAUSE

Portion of the Fourteenth Amendment to the U.S. Constitution that prohibits discrimination by state government institutions. The clause grants all people "equal protection of the laws," which means that the states must apply the law equally and cannot give preference to one person or class of persons over another.

equitable action

An action which may be brought for the purpose of restraining the threatened infliction of wrongs or injuries, and the prevention of threatened illegal action.

EQUITABLE DISTRIBUTION

In a divorce, one of the ways in which property is divided. In states with equitable distribution systems, property acquired during a marriage is jointly owned by both spouses. Equitable distribution does not necessarily mean equal distribution, and ownership does not automatically split fifty-fifty. Rather, the distribution must be fair and just (equitable).

equity, courts of

Courts which administer a legal remedy according to the system of equity, as distinguished from courts of common law.

escheat

In American law, the right of the state to an estate left vacant, to which no one makes a valid claim.

ESCROW

Money or documents, such as a deed or title, held by a third party until the conditions of an agreement are met. For instance, pending the completion of a real estate transaction, the deed to the property will be held "in escrow."

ESCROW ACCOUNT

A special account in which a lawyer or escrow agent deposits money or documents that do not belong to him or his firm.

ESCROW AGENT

In some states, this person conducts real estate closings and collects the money due the parties.

ESTABLISHMENT CLAUSE

Portion of the First Amendment to the U.S. Constitution that prohibits government from "establishing" a religion.

ESTATE

All the property a person owns.

ESTOPPEL

Estoppel is one of those complicated legal concepts designed to prevent an injustice being done by the strict application of law. If someone states that something is so and, in reliance upon that statement, another person acts in a particular way, possibly to their detriment, then the person who made the statement is prevented, or estopped, from denying the correctness of the statement which they originally made.

et al

An abbreviation of et alii, meaning "and others," ordinarily used in lieu of listing all names of persons involved in a proceeding.

et seq

An abbreviation for et sequentes, or et sequential "and the following," ordinarily used in referring to a section of statutes.

EVIDENCE

The various things presented in court to prove an alleged fact. Includes testimony, documents, photographs, maps and video tapes.

ex contractu

Arising from a contract.

ex delicto

Arising from a wrong, breach of duty. See tort.

EX PARTE

Latin that means "by or for one party." Refers to situations in which only one party (and not the adversary) appears before a judge. Such meetings are often forbidden.

ex post facto

After the fact, ordinarily used in reference to constitutional prohibition on ex post facto laws. For example, a person cannot be punished for conduct committed before a criminal law was enacted.

EXCLUSION CLAUSE

An exclusion clause is a clause, often in a contract, which attempts to limit or exclude the liability of one of the parties to an agreement. They are mostly seen in public places, such as restaurants and places of entertainment, where there is an attempt to exclude liability for coats hung in a commonly used cloakroom, but they can also appear in documents where one party wants to prevent a particular set of circumstances from affecting the contract - for example a delivery company excluding liability for late delivery due to traffic problems.

exclusive jurisdiction

The matter can only be filed in one court.

EXECUTOR

Person named in a will to oversee and manage an estate.

EXEMPT EMPLOYEES

Workers not entitled to overtime, generally workers in executive, administrative or professional positions.

EXEMPT PROPERTY

In a bankruptcy, the possessions that a person is allowed to keep.

EXIGENT CIRCUMSTANCES

Emergency conditions.

EXPERT WITNESS

A witness with a specialized knowledge of a subject who is allowed to discuss an event in court even though he or she was not present. For example, an arson expert could testify about the probable cause of a suspicious fire.

EXPRESS WARRANTY

An assertion or promise concerning goods or services. Statements such as "This air conditioner will cool a five-room house," or "We will repair any problems in the first year" are express warranties.

expungement

A court order allowing the destruction or sealing of records of minors or adults, after the passage of a specified period of time or when the person reaches a specified age and has not committed another offense.

extraordinary writ

A writ, often issued by an appellate court, making available remedies not regularly within the powers of lower courts. They include writs of habeas corpus, mandamus, prohibition and quo warranto.

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         -F-
FAIR USE

The use of a portion of copyrighted material in a way that does not infringe the owner's rights. The use of a portion of material for educational purposes, literary criticism or news reporting is often considered a fair use.

FAULT AUTO INSURANCE SYSTEM

Refers to a system in which the party that bears the blame (fault) for an accident is liable for any damages.

FEE SIMPLE

Although a very old legal term it is still often used to describe an estate in land which is a freehold interest.

fee simple absolute

The most complete, unlimited form of ownership of real property.

FELONY

Serious crime punishable by incarceration for a year or more. Includes rape, murder, robbery, burglary, and arson.

fiduciary

A person who has assumed a special relationship to another person or another person's property, such as a trustee, administrator, executor, lawyer, or guardian. The fiduciary must exercise the highest degree or care to maintain and preserve the person's rights and/or property which are within his/her charge.

FIDUCIARY DUTY

An obligation to act in the best interest of another party. For instance, a corporation's board member has a fiduciary duty to the shareholders, a trustee has a fiduciary duty to the trust's beneficiaries, and an attorney has a fiduciary duty to a client.

Fifth Amendment

Among other right, the Fifth Amendment to the U.S. Constitution guarantees that a person cannot be compelled to present self-incriminating testimony in a criminal proceeding. (Does not apply to the IRS).

FILING

Giving the clerk of Court your legal papers.

FIRST INSTANCE

First instance is the term applied to a court in which a matter is first heard before it goes for appeal to a higher court.

FIXTURES

All things that are attached to property, such as ceiling lights, awnings, window shades and doorknobs. Fixtures are automatically included in a sale, unless specifically mentioned in the contract as going to the seller.

FORCE MAJEURE

If an event occurs which is outside of the control of the parties to an agreement, for example, then it is said to be a force majeure. Often it is used in contracts and allows one party not to be in breach of the contract if an event beyond the control of either party occurs - for example a storm at sea which prevents goods from being delivered by ship.

forcible entry and detainee

Ordinarily refers to a summary proceeding for restoring possession of land to one who has been wrongfully deprived of possession.

FORECLOSURE

When a borrower cannot repay a loan and the lender seeks to sell the property.

FORESEEABILITY

A key issue in determining a person's liability. If a defendant could not reasonably have foreseen that someone might be hurt by his or her actions, then there may be no liability.

foundation

In a trial, a foundation must be laid to establish the basis for the admissibility of certain types of evidence. For example, expert witnesses' qualifications must be shown before expert testimony will be admissible.

Fourteenth Amendment

Among other matters, the 14th Amendment to the U.S. Constitution prohibits states from depriving any person of life, liberty, or property without adequate due process. (Does not apply to the IRS).

FRANCHISE

A business relationship in which an owner (the franchisor) licenses others (the franchisees) to operate outlets using business concepts, property, trademarks and trade names owned by the franchisor.

FREEHOLD

An absolute right to land is known as a freehold interest in the land - that is to say no one has a better right to the land in question. It is often known as a right in fee simple.

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GARNISHEE ORDER

When judgment is obtained against a debtor, the creditor does not always automatically get that which is owed to him or her. Sometimes the court has to make an order defining how payment will in reality be made. One such order is a garnishee order which instructs a third party who owes money to the debtor to pay that money direct to the first creditor.

GARNISHMENT

Also known as wage execution. A court-ordered method of debt collection in which a portion of a person's salary is paid to a creditor. Often used to collect child support payments.

general assignment

The voluntary transfer, by a debtor, of all property to a trustee for the benefit of all of his or her creditors.

general jurisdiction

Jurisdiction which extends to all controversies brought before a court. In contrast, special or limited jurisdiction covers only a particular class of cases.

GENERAL PARTNER

One of two kinds of partners in a limited partnership. A general partner has the right to participate in the management of the partnership and has unlimited personal liability for its debts.

GOOD FAITH

Honestly and without deception. An agreement might be declared invalid if one of the parties entered with the intention of defrauding the other.

GOODWILL

Rarely is such a high value placed on something which is so difficult to describe as occurs with the sale of goodwill. There are several different descriptions of goodwill but the most common is the value of the reputation which a business has gained through the act of trading. Thus, if you bought a store that had been trading for several years then it would have regular customers who would be likely to continue to use the shop even though its ownership had changed, whereas if you set up a new store you would need to attract customers away from existing stores to you. The method by which it is valued is complicated in the extreme - not surprising considering the abstract nature of the thing which is being valued.

GRAND JURY

A group of citizens convened in a criminal case to consider the prosecutor's evidence and determine whether probable cause exists to prosecute a suspect for a felony.

GRANTOR

The person who sets up a trust.

GREEN CARD

An immigrant visa. Allows an alien to become a lawful permanent resident of the U.S. and to work legally, travel abroad and return, bring in a spouse and children and become eligible for citizenship.

GROSS NEGLIGENCE

Failure to use even the slightest amount of care in a way that shows recklessness or willful disregard for the safety of others.

GROUNDS FOR DIVORCE

The legal reason (or reasons) a divorce is granted. There are two kinds of grounds fault and no-fault.

GUARANTEE

A guarantee is essentially a promise by one person to another that something either will or will not happen. A guarantee for a debt, for example, is a promise by one person (the guarantor) that if a party to a contract defaults in some way then the guarantor will for example pay a sum of money to the other party to the contract. The most common form of guarantee, however, is that given by the producer of goods, that those goods will continue to perform the function for which they were purchased for a certain period of time, failing which they will be replaced or the purchaser's money refunded.