Glossary of Law

[Sureshlasi]

Law

law describes the rules of conduct of any organized society, however simple or small, that are enforced by threat of punishment if they are violated. Modern law has a wide sweep and regulates many branches of conduct.


Development of Early Law

Law does not develop systematically until a state with a centralized police authority has appeared. For this development a written language is not required, but necessarily the earliest known legal codes are those of literate societies. Examples of early law systems are to be found in the code of Hammurabi (Babylonia), the Laws of Manu (India), and the Mosaic code (Palestine). These codes show what would seem to be the universal tendency of the religious and ethical system of a society to produce a legal order to enforce its ethical and social mandates. In classical antiquity the first codes of law are those attributed to Solon and to Lycurgus.




Roman Law and Its Influence

The first law code in Roman history was the Law of the Twelve Tables, the prelude to the development of Roman law, a highly elaborate system that has had immeasurable influence on the growth of Western law. It was summarized in the Corpus Juris Civilis in the time of Justinian. Roman law developed the distinction between public law (in which the state is concerned directly, e.g., treason and taxation) and private law (concerned with disputes between persons, e.g., over contracts).

The breakup of the Roman Empire under the pressure of the Germanic invasions brought the disruption of the Roman legal administration. Temporarily the codes of Germanic laws eclipsed Roman law in Western Europe. In the simpler Germanic codes the main distinctive element was the use of composition for crimes, but most of the Germanic codes showed at least some Roman influence.

Roman law, together with the Bible, was the basis of canon law, the legal system of the Roman Catholic Church, while Muslim law was derived from the Qur'an and the traditional sayings of Muhammad, and later Hebrew law was based on the Talmud. Feudal law also showed the effects of Roman law, although in theory it was based not upon any concept of the state but on personal relations .

The revival of trade in the commercial revolution, and in the Renaissance brought new developments in the law of the sea . The study of Roman law itself was also revived, notably at the Univ. of Bologna. It became the basis of most Continental law, as exemplified in the French Code Napoléon, the archetype of codes that govern the jurisdiction of civil law.




Anglo-American Law

In England after the Norman Conquest the feudal law was ultimately replaced by the law of the royal courts, such as the king's bench. The royal courts developed common law, i.e., judicial legislation as opposed to the law of the formally enacted statute. Common law adhered excessively to precedent, and equity, exercised by the king's chancery, appeared, with its reliance upon the dictates of conscience rather than upon precedent.

The two systems became bitter rivals. In the early 17th cent. Francis Bacon championed equity, while such eminent jurists as Edward Coke upheld the common law. In the 18th cent. English jurisprudence stressed natural law (the theory that law must incorporate the natural rights of humans), and the highly influential work of Sir William Blackstone exemplifies the theory.

The work of Blackstone was the most important influence in U.S. law (except for Louisiana, Puerto Rico, and the Virgin Islands, where Continental civil law prevailed). Among those who helped to develop the American concept of law were James Kent and Joseph Story; in constitutional law the most important figure was John Marshall. In the United States the distinctive feature is the coexistence of federal and state law, for the U.S. Constitution limits the sphere in which federal law is supreme.




Chapter # 1

Legal Terms and Concepts

1. abandonment

abandonment, in law, is the voluntary, intentional, and absolute relinquishment of rights or property without conveying them to any other person. Abandonment also means willfully leaving one's spouse or children, intending not to return . In many states the abandonment of a child is a criminal offense.



2. abstract of title

abstract of title may be understood as a brief history of the title to a piece of land. An account is given of recorded documents, court proceedings, wills, mortgages, taxes, previous sales, easements, and all other factors that at any time affected the ownership or use of the land. The old rule in England required that an abstract of title should cover the 60 years before the proposed sale. In 1874 this was changed to 40 years. In some U.S. states the title is traced back to the original grant from the government, but in others it is traced only so far back as is necessary to show a present clear title.





3. acknowledgment

The formal declaration or admission by a person who executed an instrument (e.g., a will or a deed) that the instrument is his. The acknowledgment is made before a court, a notary public, or any other authorized person. Acknowledgment permits the instrument to be given in evidence without any further proof of its execution (e.g., witnesses).





4. adoption

An act by which the legal relation of parent and child is created. Adoption was recognized by Roman law but not by common law. Statutes first introduced adoption into U.S. law in the mid-19th cent., and today it is allowed in all states of the United States and in Great Britain. Adoption is generally a judicial proceeding, requiring a hearing before a judge. Adoption statutes usually provide that the consent of the parents or guardian of the child—and that of the child, if above a certain age—must be obtained. An adopted child generally assumes the rights and duties of a natural legitimate child. Similarly, the rights and duties accompanying natural parenthood generally accompany adoptive parenthood (e.g., the right of custody and the obligation of support). The natural parents have no right to control an adopted child, nor have they any duties toward it, but in some states the child does not lose the right to inherit from them.

In many cases children are adopted by relatives. Many states now permit adoption by unmarried adults; some allow adoption by homosexual couples. Most adoptions are of the same race. Transracial adoptions are controversial, pitting issues of culture and heritage against the need of a child for a stable parent-child relationship as early in life as possible, regardless of race. The Multiethnic Placement Act (1994) made it illegal for U.S. states to hold up adoptions solely in order to match racial or ethnic background of the child.

In adoption by unrelated adults, the courts have traditionally attempted to ease adjustment to the adoptive family and protect the privacy of the (often unwed) mother by maintaining secrecy regarding the child's birth parents. Since the 1970s, however, a growing number of adopted children have attempted to identify their birth parents, and “open adoption,” in which adoptive and birth parents maintain a relationship, has become more accepted. Questions of parental rights and where these stand vis-à-vis the rights and best interests of the child have also been highlighted in cases in which the courts tranferred custody of adopted or fostered children to birth parents who had previously given them up.

Many children are adopted through public or private agencies, but a growing number are adopted through private placement, in which the prospective adoptive parents advertise for or are otherwise put into contact with a birth mother, usually with the help of a lawyer who is familiar with the process and the legal requirements of the individual states. As birth control and abortion have become more available and as the stigma formerly attached to unwed motherhood has lifted, fewer infants have been put up for adoption, making it increasingly difficult for prospective parents to find young children to adopt. In many cases, parents have adopted babies from outside the United States, particularly South Korea, and Mexico and other Latin American countries, but the increased demand has also been accompanied by black-market adoption arrangements. In 1980 the U.S. Congress passed the Adoption Assistance and Child Welfare Act to give support to foster families who adopt and to families who adopt children with disabilities.





5. age of consent

The age at which, according to the law, persons are bound by their words and acts. There are different ages at which one acquires legal capacity to consent to marriage, to choose a guardian, to conclude a contract, and the like. For marriage, the age may be higher for males than for females if the jurisdiction does not guarantee equal rights to men and women. Age of consent also means the age below which consent of the female to sexual intercourse is not a defense to a charge of rape. Under common law this age was 10; state statutes in the United States generally set it between 13 and 18.







6. alien

any person residing in one political community while owing allegiance to another. A procedure known as naturalization permits aliens to become citizens.

Each nation establishes conditions upon which aliens will be admitted, and makes laws concerning them. Most countries, including the United States, forbid or limit the admission of criminals, paupers, and the diseased. Certain groups and nationalities may be unconditionally excluded from legal residence, but such discrimination is likely to cause international friction.

Aliens, while they reside in a country, are subject to its laws and not to those of their home country, except in cases of extraterritoriality jurisdiction. A state distinguishes between aliens who are merely traveling or living there temporarily and those who have come to stay or work; wider powers are assumed over the second group. In the United States, permanent resident status may entitle an alien to a “green card,” and thus to seek employment, and aliens have many of the privileges afforded to citizens, including public assistance and the right to attend public schools, even if they are in the country illegally. The Immigration and Nationality (McCarran-Walter) Act of 1952 requires aliens to register each year with the Bureau of Citizenship and Immigration Services (formerly the Immigration and Naturalization Service).

As citizens of another country, aliens may call on it to intercede in legal matters. Their home state may point out or protest injustice and may also threaten reprisals; such situations have frequently caused international disputes. On the other hand, aliens may find asylum in a country to which they have fled, unless treaties of extradition provide for their return. A state may for political or legal reasons expel an alien who has been admitted, by a procedure called deportation.

In time of war, laws governing aliens are usually stricter, and enemy aliens (nationals of enemy countries) may be restricted in various ways. Treaties between most governments provide for reasonable periods at the beginning of hostilities during which aliens may withdraw under supervision. World War II saw registration requirements and the exclusion of enemy aliens from certain U.S. areas, but the removal from their homes and internment in camps of Japanese on the West Coast applied to Americans of Japanese descent as well as to aliens.

Population and economic pressures periodically cause host countries to become less hospitable to aliens. In the 20th cent., U.S. immigration and deportation laws have changed in reaction to varying conditions. The “Red Scare” at the end of World War I brought a wave of deportations of anarchists and other radicals. A 1986 federal immigration bill, aimed at reducing the number of illegal aliens, allowed many of those who had been in the country for some time to apply for amnesty and stay legally, and millions took advantage. In the 1990s politicians, including many in such states as California, where large numbers of illegal aliens reside, introduced state or federal legislation aimed at denying various privileges and benefits to aliens, in some cases even to those legally in the United States. A 1996 federal act led to a rapid increase in deportation of aliens who had not immigrated legally, and the INS grew to become the largest federal law-enforcement agency. Arizona voters passed (2004) a measure that requires public officials to turn in illegal immigrants who seek public services, including police and fire assistance.








7. alimony

alimony is the allowance for support that an individual pays to his or her former spouse, usually as part of a divorce settlement. It is based on the common law right of a wife to be supported by her husband, but in the United States, the Supreme Court in 1979 removed its limitation to husbands, to account for cases in which the wife is wealthier. Alimony is distinct from child support, which is the duty of both mother and father to contribute, based on ability to pay, to the support of minor children. Temporary alimony is allowed pending the outcome of a suit for divorce or separation, or for a decree of nullity of marriage, whether initiated by husband or wife; permanent alimony may be granted after a divorce has taken effect. In contemporary law, alimony is generally awarded only in cases where one spouse is unable to support himself or herself. Such cases are not common: recent figures show that some 90% of U.S. divorces are free of alimony requirements. Alimony ceases on the death of the individual liable; it is not payable out of his or her estate. Remarriage of the individual collecting alimony does not necessarily terminate payments, but the amount may be reduced or the court may cut them off if the recipient's new spouse can support him or her adequately. In all cases the need for and amount of alimony are questions that can be reopened at any time in a court having jurisdiction over the parties. A decree awarding alimony is a court order issued personally, and enforced by contempt of court sanctions. Today, alimony is often called “maintenance.” In cases of extended cohabitation, so-called palimony sometimes may be awarded.







8. amendment

amendment, in law, alteration of the provisions of a legal document. The term usually refers to the alteration of a statute or a constitution, but it is also applied in parliamentary law to proposed changes to a bill or motion under consideration, and in judicial procedure to the correction of errors. A statute may be amended by the passage of an act that is identified specifically as an amendment to it or by a new statute that renders some of its provisions nugatory. Written constitutions, however, for the most part must be amended by an exactly prescribed procedure. The Constitution of the United States, as provided in Article 5, may be amended when two thirds of each house of Congress approves a proposed amendment (approval by the president is not required), and three fourths of the states thereafter ratify it, sometimes within a set period. Congress decides whether state ratification shall be by vote of the legislatures or by popularly elected conventions. Only in the case of the Twenty-first Amendment (repealing prohibition) has the convention system been used. In many U.S. states, a proposed amendment to the state constitution must be submitted to the voters in a referendum.






9. amnesty

exemption from prosecution for criminal action. It signifies forgiveness and the forgetting of past actions. Amnesties are usually extended to a group of persons during a period of prolonged disorder or insurrection. The criminals are offered a promise of immunity from prosecution if they will abandon their unlawful activities. After a revolution or civil war the victorious side will often extend amnesty to the losers; e.g., the United States granted a qualified amnesty to the Confederate forces after the Civil War. An amnesty is distinguished from a pardon, which is an act of forgiveness after the criminal has already been convicted.







10. appeal

The term appeal refers to the hearing by a superior court to consider correcting or reversing the judgment of an inferior court, because of errors allegedly committed by the inferior court. The party appealing the decision is known as the appellant, the party who has won the case in the lower court as the appellee. The term is also sometimes used to describe the review by a court of the action of a government board or administrative officer. Appellate procedure is set by statute. There are two types of errors, of fact and of law. An error of fact is drawing a false inference from evidence presented at the trial. An error of law is an erroneous determination of the legal rules governing procedure, evidence, or the matters at issue between the parties. Ordinarily, only errors of law may be reviewed in appeal. In an appeal from an action tried in equity, however, the appellate court passes on the entire record, both as to facts and law. Should the appeals court conclude that no error was committed, it will affirm the decision of the lower court. If it finds that there was error, it may direct a retrial or grant a judgment or decree in favor of the party who lost in the lower court. The determinations of appeals courts are usually printed, often with an opinion indicating the basis for the court's decisions. Such opinions are of great utility in guiding the inferior courts and are often cited as precedents in future cases.







11. asylum

extension of hospitality and protection to a fugitive and the place where such protection is offered. The use of temples and churches for this purpose in ancient and medieval times was known as sanctuary. In modern international law, the granting of asylum to refugees from other lands is the right of a state by virtue of its territorial sovereignty. A fugitive, however, has no right to demand asylum from the state to which he flees; that state makes its own determination in each case. Between most nations there are treaties of extradition providing for the mutual surrender of fugitives from justice, and there is a tendency to confine the granting of asylum to political refugees and victims of apparent discrimination and intolerance. Asylum has sometimes been granted more broadly; some Third World women have successfully sought asylum for themselves or their daughters in the United States or other Western nations to avoid forced genital mutilation, a traditional practice in a number of societies. A situation causing many international disputes is the use of embassies and legations, by virtue of their status of extraterritoriality, as places of refuge in times of disorder and conflict. Most countries do not offer this type of asylum except when it seems necessary for the preservation of human life.









12. attorney

An agent put in place of another to manage particular affairs of the principal. An attorney in fact is an agent who conducts business under authority that is controlled and limited by a written document called a letter, or power, of attorney granted by the principal. An attorney at law is an officer of a court of law authorized to represent the person employing him (the client) in legal proceedings. England retains the distinction between the attorney as agent, the solicitor, who deals directly with the client but does not act as an advocate in court, and the attorney as pleader, the barrister (called advocate in Scotland), who presents the case in court. Most senior and distinguished barristers are designated King's (Queen's) counsel. The distinction between agent and pleader also exists in Europe. In the United States, a similar distinction was formerly made in some states between a counselor at law, who argued the case in court, and an attorney, who prepared the case but did not argue it; but that distinction has now generally disappeared. Today an attorney at law is authorized to exercise all the functions of a practicing lawyer. The growth of large business corporations, beginning in the 19th cent., has brought into existence a large group of attorneys who rarely or never act as trial lawyers yet are among the most influential members of the profession. They work directly for corporations or are members of large law firms and specialize in areas of commercial law. All of them must, however, like the ordinary attorney, be admitted to the bar. The term attorney is also used for county, state, and federal prosecuting officers, as county attorney, district attorney, and attorney general.










to be continued

[Sureshlasi]

B

13. bail

bail, in law, is the procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to insure his submission at the required time to legal authority. The monetary value of the security—known also as the bail, or, more accurately, the bail bond—is set by the court having jurisdiction over the prisoner. The security may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security. Bail is usually granted in a civil arrest. Courts have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is usually refused when the accused is charged with homicide. The Eighth Amendment to the Constitution of the United States provides that “excessive bail shall not be required,” but it does not provide any absolute right to bail.






13. bankruptcy

bankruptcy, in law, is the settlement of the liabilities of a person or organization wholly or partially unable to meet financial obligations. The purposes are to distribute, through a court-appointed receiver, the bankrupt's assets equitably among creditors and, in most instances, to discharge the debtor from further liability. In the United States, bankruptcy is controlled by a federal law adopted in 1898 and amended several times, as by the Chandler Act (1938) and the Bankruptcy Reform Act (1978).

Bankruptcy proceedings may be voluntary (instituted by the debtor) or involuntary (instituted by creditors). The debtor may be insolvent—i.e., unable to pay all debts even if the full value of all assets were realized—or may become insolvent when current obligations mature. Bankruptcy is also permitted when the discharge of debts would otherwise be unduly delayed, e.g., if the debtor has fraudulently transferred property to put it out of a creditor's reach. When a person or corporation has declared or been adjudged bankrupt, preferred creditors (e.g., unpaid employees, or the federal government) are paid in full, and the other creditors share the proceeds of remaining assets.

The bankrupt individual receives more lenient treatment in the United States than in perhaps any other country, so that business initiative is not stifled by the threat of criminal or civil penalties following unintentional commercial failure. This ideal is evident in Chapter 11 of the bankruptcy code, which permits courts to reorganize the assets of failing businesses instead of ordering complete liquidation of these assets. The 1978 revision of the code made it easier for corporate management to remain in control of a company during reorganization. These more lenient provisions led to a rapid increase in filings in the 1980s and 1990s. In 2005 Congress passed a significant revision of the bankruptcy code affecting individuals, prompted in part by the increase in filings since 1978. Under the new law, it is harder for an individual to file a Chapter 7 bankruptcy, which extinguishes a person's debts, and it is easier for creditors to secure repayment of a debt over time. The changes were strongly supported by banks and credit card companies, but were also criticized by a number of bankruptcy experts for placing additional burdens on middle income families while not closing loopholes that benefit bankrupt corporations and wealthy individuals. Chapter 9 of the code provides for the reorganization of bankrupt municipalities.








14. benefit of clergy

This term is originally applied to the exemption of Christian clerics from criminal prosecution in the secular courts. The privilege was established by the 12th cent., and it extended only to the commission of felonies. The ecclesiastical courts did not inflict capital punishment except in rare cases, in which event those adjudged guilty were turned over to local secular authorities for enforcement of the sentence (see canon law). In the ecclesiastical courts the severest sentences usually were degradation and the imposition of penances. Many criminals posed as clerics to obtain benefit of clergy. In England the privilege was soon extended to all clerks, i.e., literate persons. The ecclesiastical courts lost all jurisdiction over criminal acts in 1576, and thereafter clerics were tried by the secular courts and, under statute law, were either discharged or sentenced to a year's imprisonment. Early in the 18th cent. the reading test was abolished and all persons were allowed to claim this privilege for the first conviction of felony; later the privilege was extended generally to peers and women. Benefit of clergy thus mitigated the severities of English criminal law, which imposed the death penalty for many offenses now deemed trivial. Criminal law was ameliorated in the early 19th cent., and in 1827 benefit of clergy was abolished as being no longer necessary. In the United States it was abolished in 1790 for all federal crimes, and c.1850 it disappeared from the state courts. The term “benefit of clergy” has come in popular usage to mean sanction of the clergy, particularly in the phrase “marriage without benefit of clergy.”

C

15. censorship

An official prohibition or restriction of any type of expression believed to threaten the political, social, or moral order. It may be imposed by governmental authority, local or national, by a religious body, or occasionally by a powerful private group. It may be applied to the mails, speech, the press, the theater, dance, art, literature, photography, the cinema, radio, television, or computer networks. Censorship may be either preventive or punitive, according to whether it is exercised before or after the expression has been made public. In use since antiquity, the practice has been particularly thoroughgoing under autocratic and heavily centralized governments, from the Roman Empire to the totalitarian states of the 20th cent.






16. chattel

any property other than a freehold estate in land. A chattel is treated as personal property rather than real property regardless of whether it is movable or immovable. Certain uses of the term (e.g., chattel mortgage) refer only to movable property. Otherwise the term also includes chattels real, i.e., those estates in land that do not constitute a freehold.






17. class action

A device that permits one or more persons to sue or be sued as representative of a large group of people interested in the matter at issue. The court in whose jurisdiction a suit is brought typically has wide discretion in determining that a class will be so represented. Certain requirements must be met, e.g., the class must be so large or dispersed that actual joinder of all individuals would be impractical; there must be questions of law and fact common to all members, and these must outweigh any individual questions; and the named parties must adequately represent the interests of their class. Certain forms of notice to members of the class, e.g., by newspaper or broadcast publication or by mail, are also required. In most types of suit, all members of the class are bound by the decision, unless a member of the class opted out of the action at the beginning of the lawsuit. An absentee member may be able to contest the outcome on the basis that due process of law was not adhered to.

In the United States, federal and most state courts allow class action suits. Such suits have figured prominently in civil-rights litigation and in other cases brought to further social and economic reform. In recent decades they have been employed notably by groups of consumers and others seeking to affix liability for harm caused by various products, especially through manufacturers' negligence. Major litigation against the producers of the Dalkon shield (an intrauterine device; see birth control), of Agent Orange (a herbicide used as a defoliant in the Vietnam War), and of asbestos insulation has involved class action suits.

Since the 1980s such suits have been under attack, along with negligence litigation in general, with opponents, mainly conservatives and business interests, arguing that many lawsuits are frivolous and that awards are out of proportion to the offense in some juridictions. A study published in 2004 that reviewed several hundred state and federal class action lawsuits from 1993 to 2002 found that, adjusted for inflation, the average annual award in such suits varied but did not progressively increase, while the median award was relatively constant. At the same time, however, federal court data showed that the number of class action lawsuits doubled from 1997 to 2002.








18. code

In its widest sense any body of legal rules expressed in fixed and authoritative written form. A statute thus may be termed a code. Codes contrast with customary law (including common law), which is susceptible of various nonbinding formulations, as in the legal opinions of judges. The earliest codes (e.g., the Roman Twelve Tables) met the popular demand that oral regulations be written down so that legal chicanery might be prevented. In later Roman law, however, the term code acquired its modern meaning of a precisely formulated statement of the principles underlying some branch of law (e.g., contracts) or an entire legal system. One of the greatest codes was the Roman Corpus Juris Civilis. In Europe, in the late 18th cent., after the general adoption of civil law by the continental countries, jurists asserted that similar codes were needed, and the parent modern European codification, the Code Napoléon, appeared (1804) and was followed by many others. The civil law code is an attempt to determine in advance what legal exigencies will arise and to furnish the means for meeting them. Basic legal principles (e.g., that contracts express the will of the parties) are worked out in systematic detail and great attention is given to consistency. The movement for codification, however, has been largely unsuccessful in countries where common law prevails, such as the United States, despite the argument that the principles of common law are sometimes uncertain and often contradict one another. Advocates of the common law assert that civil law makes possibly futile attempts to predict and control the course of developments. In the United States the term code is sometimes also applied to the statutes of a state or of the federal government that have been edited to eliminate duplication and inconsistencies and arranged under appropriate headings.







19. commutation of sentence

commutation of sentence, in criminal law, is the reduction of a sentence for a criminal act by action of the executive head of the government. Like pardon, commutation of sentence is a matter of grace, not of right; it is distinguished from pardon, however, in that the conviction of crime is not nullified. The commutation, hence, may be granted on condition that the criminal observe certain restrictions for the balance of his original sentence. Many states have statutes providing for commutation of sentence as a reward for good conduct during imprisonment. Once earned, the commutation becomes a matter of right and may be enforced by court action.







20. composition

composition, in ancient and medieval law, is a sum of money paid by a guilty party as satisfaction to the family of the person who was injured or killed. Failure to make the payment might justify retaliation in kind against the offender or his family. In earliest times, the payment was made as a result of a mutual agreement between the parties, but later it was imposed by law. In many societies the amount paid varied according to the rank of the person injured or slain. Composition reflected a transition from a system of feuds or blood revenge (see vendetta) to one where socially dangerous acts are primarily a concern of the state rather than of private persons and their families alone. The exaction of the payment recognized the outrage to the person and the family as the prime offense, but it tended to discourage disorder by providing a substitute for retributive killing or other violence. When, in addition to composition, a fine had to be paid to the state, the dangerous act approached the modern conception of a crime (see criminal law). This institution was known in all Germanic cultures, including Anglo-Saxon England, and was widespread in many parts of the world. It is still practiced in certain Middle Eastern countries. An example of composition is wergild [Old Eng.,=man's price], the payment made by a murderer to the family of a murdered person. Wergild was often paid to the king for loss of a subject and to the lord of the manor for the loss of a vassal as well as to the family of the deceased. The term composition is also used to refer to an agreement between an insolvent debtor and his creditor, whereby the creditor for some consideration, such as an immediate payment of a portion of the debt, waives the remainder and considers his claim satisfied.






21. compurgation

In medieval law, a complete defense. A defendant could establish his innocence or nonliability by taking an oath and by getting a required number of persons to swear they believed his oath. Compurgation, also called wager of law, was found in early Germanic law and in English ecclesiastical law until the 17th cent. In common law it was substantially abolished as a defense in felonies by the Constitutions of Clarendon (1164). Compurgation was still permitted in civil actions for debt, however, and vestiges of it survived until its final abolition in 1833. It is doubtful whether compurgation ever existed in America.






23. conflict of laws

That part of the law in each state, country, or other jurisdiction that determines whether, in dealing with a particular legal situation, its law or the law of some other jurisdiction will be applied. An alternative term, widely used in Europe, is “private international law.” An example of a situation that might involve the different laws of two places is that of a contract signed in one state and mailed to another. Complications may arise if one of the states provides that a contract so delivered is effective once mailed, while the other state provides that it is not effective until received. The conflict of laws rules that a court applies in these disputed situations are commonly designed to decide the case by the law of the territory having the closest connection with the transaction. An often expressed ideal is that of making the decision the same regardless of where the case is decided.

In the United States the existence of many states with legal rules often at variance makes the subject of conflict of laws especially urgent. The Supreme Court ruled in 1938 that each federal court must apply the conflict of laws rules of the state in which it sits. Certain provisions of the U.S. Constitution deprive the states of complete freedom to determine how they will decide cases in this field. Most important is Article 4, Section 1, which provides, in part, “Full Faith and Credit shall be given in each State to the Public Acts, Records, and judicial Proceedings of every other State.” The U.S. Supreme Court has interpreted this provision as requiring each state to treat as valid any judgment rendered by another state that had jurisdiction over the matter and to lend its powers of enforcement to the judgment; the sole exception is that the courts of one state do not enforce claims arising under the penal law of another. Jurisdiction in this context is defined as the capacity of the state to impose its authority on a transaction because of its intimate connection with the litigants and/or the subject of litigation.

There are especially difficult jurisdictional problems in the field of divorce. The chief problem occurs when only one of the parties appears and the other is merely notified of the action. In such cases the Supreme Court has ruled that the state had jurisdiction to divorce if the party appearing was domiciled there. The court has defined domicile as the place where a person is living with the ultimate intention of making it his or her home. A person who obtains a divorce under these circumstances may seek alimony, or payment thereof, in any state and is immune from the charge of bigamy if he or she remarries.

The most important attempt in antiquity to deal with the problem of conflict of laws was the jus gentium [law of nations] of the Romans: a system of laws applied to all free foreigners. The founder of the modern study of conflict of laws was the medieval jurist, Bartolus of Sassoferrato (1314–57).









24. consent

consent, in law, is an active acquiescence or silent compliance by a person legally capable of consenting (see age of consent). It may be evidenced by words or acts or by silence when silence implies concurrence. Actual or implied consent is necessarily an element in every contract and every agreement. In criminal charges, the consent of the party injured (if not obtained by fraud or duress) is a defense for the accused, unless a third party or the state is injured.







25. contempt

The interference with the functioning of a legislature or court. In its narrow and more usual sense, contempt refers to the despising of the authority, justice, or dignity of a court. A contempt of court. can be classified as civil or criminal, direct or constructive. Civil and criminal contempts are distinguished by the function of the punishment—if it is to vindicate judicial authority, the contempt is criminal; if it is to enforce the rights and remedies of a party, the contempt is civil. A direct contempt is one committed in the presence of the court while it is in session. A constructive contempt is one that is committed at a distance from the court and that tends to obstruct or defeat the administration of justice. A refusal to answer a question when directed to answer by a judge is a direct criminal contempt. Disobeying an injunction or a court order that a judgment (e.g., alimony) be satisfied is a civil contempt. A major distinction is whether the court needs to hear evidence to determine if a contempt was committed. Direct criminal contempts may be punished summarily by fine or imprisonment; civil and constructive criminal contempts can also be punished by fine or imprisonment, but the accused must be granted a hearing. In the United States, Congress can punish for contempt of Congress. behavior that occurs during legislative proceedings and that threatens its legislative power. Congress must act before it adjourns, and any imprisonment can last no longer than that session. State legislatures also have limited powers to punish for contempt.







26. contract

contract, in law, is a promise enforceable by law, to perform or to refrain from performing some specified act. In a general sense, all civil obligations fall under tort or contract law. Torts are usually characterized as violations of duties that are imposed on all persons and that have been established entirely by law. In contracts, on the other hand, the parties determine, at least in part, what their obligations to one another will be. Special types of contracts are given separate articles, e.g., negotiable instrument, insurance, and deed.

Criteria for Enforcement

For a contract to be valid, both parties must indicate that they agree to its terms. This is accomplished when one party submits an offer that the other accepts within a reasonable time or a stipulated period. If the terms of the acceptance vary from those of the offer, that “acceptance” legally constitutes a counteroffer; the original offering party may then accept it or reject it. At any time prior to acceptance, the offer may be rescinded on notice unless the offering party is bound by a separate option contract not to withdraw. Only those terms expressed in the contract can be enforced; secret intentions are not recognized. For a contract to be binding, it must not have an immoral or a criminal purpose or be against public policy.

Other criteria for the enforcement of contracts have varied. In the earliest type of enforceable promises, it was the form of the contract (e.g., a sealed instrument) or the ceremony accompanying its execution that marked the essence of the transaction; contracts not sealed or not dignified by ceremonies held a lesser status, and were therefore not always enforceable. The importance of promises in commercial and industrial society produced a new criterion, and generally a promise is now enforceable only if it is made in exchange for consideration, i.e., a payment, for some action, or for another promise. In some jurisdictions, statutes have made certain promises enforceable without consideration, e.g., promises to pay debts barred by the statute of limitations. To be enforceable, most contracts must be in writing, to comply with the Statute of Frauds.

Since a contract is an agreement, it may be made only by parties with the capacity to reach an understanding. Therefore, individuals suffering from severe mental illness are unable to make binding contracts. Until the late 19th cent., married women were also without contractual capacity, because at common law they were considered the creatures of their husbands and without wills of their own (see husband and wife); this disability has been removed by statute universally. Minors are not bound by their contracts, but they are responsible for the value of goods received in contracts made for necessities of life. Otherwise, a minor may denounce his contracts at any time and on attaining majority may elect whether to affirm or repudiate them.

A contract must also be the uncoerced agreement of the parties; thus, if it is procured by duress or fraud it is void. A contract can be unenforceable if it is so one-sided as to be found unconscionable, where the terms are unreasonably favorable to one party; often the material that constitutes unconscionability is buried in fine print or expressed in obfuscatory jargon. Adhesion contracts, which afford no occasion for the weaker party to bargain over their terms, are often offered to purchasers of consumer goods and services, but are not necessarily unconscionable.

Termination of Contracts

While a contract is still wholly or partly unperformed it is termed executory; contracts may terminate, however, in ways other than by being fully executed. If the object of the contract becomes impossible or unlawful, if the parties make a novation (a new superseding agreement), or if the death of one party prevents that party from rendering personal services he or she had agreed to perform, the contract is terminated. The injured party may also treat the contract as a nullity if the other party refuses to perform. The law provides several remedies for breach of contract. The most usual is money damages for the loss incurred. In cases where some action other than the payment of money was contracted for, a court may grant the plaintiff an injunction ordering specific performance. If one party is unjustly enriched by a contract that he or she then repudiates legally, restitution may be required. A typical example of this is ordering a minor who revokes a contract to restore the things of value that were obtained.








26. copyright

copyright is a right granted by statute to the author or originator of certain literary, artistic, and musical productions whereby for a limited period of time he or she controls the use of the product. The work may be reproduced by the individual or by another licensed to do so by the individual. Royalties are paid on each performance of the work or each copy that is sold.

Copyrightable Materials

Literary matter, periodicals, maps, photographs, works of art, textile and other designs, sound recordings, musical compositions, photoplays, and radio and television programs are among the commodities that may be copyrighted. Material for copyright in the United States must be registered and deposited with the Library of Congress. The law makes special provision for the transmission of copyright material over cable television, jukeboxes, and public broadcasting stations. It also specifies circumstances under which the reproduction of copyrighted works by libraries and archives is permissible. Since 1980, computer software has been eligible for the same copyright protection as printed matter, and in 1984, a ten-year period of copyright protection was extended to semiconductor chips. The Supreme Court ruled in 1987 that neither the home use of television video recorders nor their manufacture violated the copyright laws.

The Bern and Universal Copyright Conventions

Copyrighting of foreign materials in the United States is a relatively recent development. After 1891, foreign language material was easily copyrighted in the United States; material in English, however, could not be copyrighted if it was imported, unless type was set and material printed and bound in the United States. Most of the major countries of the world, with the exception of the United States, adhered to the Bern Convention of 1887, which provided that literary material copyrighted in any signatory country automatically enjoys copyright in all the signatory countries.

The Universal Copyright Convention (UCC), which had as a main purpose the inclusion of the United States in a general system of international copyright, was signed at Geneva in 1952. It was accepted by the United States in 1954 and came into effect the following year. The U.S. copyright law was modified to conform to the convention, notably by elimination of procedural steps for the establishment of U.S. copyright in works published in other signatory countries and of the requirement that works in the English language by foreign authors be manufactured in the United States to obtain U.S. copyright protection. The United Nations Educational, Scientific, and Cultural Organization (UNESCO) played a leading part in the negotiations for the UCC, which was revised in 1971. In 1989 the United States became a member of the Bern Convention, which was most recently revised in 1971. Most nations subscribe to the convention, and most of those who do not are parties to the UCC or members of the World Trade Organization, whose agreements cover copyright and other intellectual property rights.

History

Protection of rights in literary property did not appear necessary in Europe prior to the invention of printing from movable type in the 15th cent. The sovereign asserted control over printing by issuing patents or privileges to individuals or by organizing publishers' guilds with monopoly rights. Through such devices, the state was able to censor heresy and sedition, while at the same time fostering literature. The only protection that the common law extended to the author was against publication of the work without permission; once publication was allowed, the work passed completely out of the author's control.

The first English copyright act (1710), while maintaining the common-law right, allowed the author to copyright a work for 14 years (with a like period of renewal); it also required deposition of copies and a notice that the work was copyrighted. That law was the model for the earliest American copyright statute, passed in 1790. Wheaton v. Peters (1834) established that copyright exists primarily for the public benefit rather than for the creator of the work. The current copyright statute became effective in 1978, superseding an act of 1909. The law provides copyright for the duration of the author's life plus 70 years.








27. coroner

A judicial officer responsible for investigating deaths occurring through violence or under suspicious circumstances. The office has been traced to the late 12th cent. Originally the coroner's duties were primarily to maintain records of criminal justice and to take custody of all royal property. In England this second function persists in his jurisdiction over treasure-trove. In his present-day work of determining cause of death, the coroner proceeds by means of the inquest whenever there is doubt. In several of the United States the coroner has been replaced by the medical examiner, who can only conduct post-mortem examinations, and who works in cooperation with the public prosecutor.








28. corporation

corporation, in law, is an organization enjoying legal personality for the purpose of carrying on certain activities. Most corporations are businesses for profit; they are usually organized by three or more subscribers who raise capital for the corporate activities by selling shares of stock, which represent ownership and are transferable. Besides business corporations, there are also charitable, cooperative, municipal, and religious corporations, all with distinctive features. In the United States all governmental units smaller than a state (e.g., counties, cities) are municipal corporations. Certain religious functionaries (e.g., Roman Catholic archbishops) legally are corporations sole.

The legal personality of a corporation is symbolized by its seal and its distinctive name. As a legal person, the corporation continues in existence when the organizers lose their connection with it. In most cases its liability is limited to the assets it possesses and creditors may not seize property of persons associated with the corporation as stockholders or otherwise. Legal personality gives the corporation many of the capacities of a natural person; e.g., it can hold property and can even commit crimes (for which it may be fined and its directors imprisoned).





29. court

An official body charged with administering justice. The term is also applied to the judge or judges who fill the office and to the courtroom itself. Courts come into existence when legal relations are no longer entirely a private matter. Thus, courts do not exist in a society governed by vendetta, and they are of little consequence in one where composition for wrongs is the rule. In addition to law courts there are ecclesiastical courts, arbitral tribunals (e.g., for labor cases), administrative tribunals, and courts-martial

Early Court Systems

The most ancient courts known, e.g., those of Egypt and Babylonia, were semiecclesiastical institutions that used religious rituals in deciding issues. In Greece the functions of a court were chiefly undertaken by citizens' assemblies that heard the arguments of orators. In Rome there was a clear evolution of the court system from priestly beginnings to a wholly secular, hierarchal organization staffed by professional jurists. Western Europe (after the collapse of Rome) and Anglo-Saxon England had mainly feudal courts of limited territorial authority, administering customary law, which differed in each locale.

Courts in England

In England, after the Norman Conquest (1066), royal authority was gradually extended over the feudal lords, and by the early 13th cent., although purely local courts had not been abolished, the supremacy of the central courts that had evolved from the Curia Regis [Lat.,=king's court], namely, the Court of Exchequer, the Court of Common Pleas, and King's Bench, was established. The Court of Common Pleas heard cases between ordinary subjects of the king, while King's Bench heard cases involving persons of high rank and acted as a court of appeals. Soon itinerant royal courts were established to spare civil litigants the labor and expense of going to the capital at Westminster and to afford hearings to persons held on criminal charges in county jails. By the 14th cent. the principal function of the central courts was to hear appeals from the circuit courts.

Unity was at least temporarily disrupted by the emergence (16th cent.) of equity as a distinct body of law administered by the chancery. The conflict of jurisdiction continued to some extent until 1875, when the Judicature Act of 1873 went into effect. As presently constituted as a result of subsequent reforms, the courts of England and Wales consist of the Court of Appeal, the High Court (with civil jurisdiction), the Crown Court (with criminal jurisdiction), the county courts, and the magistrates' courts. The High Court is divided, purely for administrative purposes, into three divisions: Chancery, Family, and King's (or Queen's) Bench. Appeals may in some instances be taken from the court of appeal to the House of Lords. The judicial committee of the privy council hears appeals from overseas territories still under British domain and from some Commonwealth countries. Under the Constitutional Reform Act 2005 a new Supreme Court for Great Britain and Northern Ireland will be created in 2009, ending the role of the House of Lords as the highest court of appeal.









29. curfew

It is originally a signal, such as the ringing of a bell, to damp the fire, extinguish all lights in the dwelling, and retire for the night. The custom originated as a precaution against fires and was common throughout Europe in the Middle Ages. The curfew has most recently been used in times of turbulence, such as revolution or civil disorders. It is a restrictive measure forcing all persons into their homes to reduce activity against the government or the occupying force. In some communities it has been applied to curb juvenile delinquency.

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30. damages

Money award that the judgment of a court requires the defendant in a suit to pay to the plaintiff as compensation for the loss or injury inflicted. Damages are the form of legal redress most commonly sought. With a few exceptions, English courts of law traditionally afforded only this remedy, while the grant of damages in courts of equity was solely incidental to other relief, such as injunction. The purpose of damages is to compensate the injured party for the loss that he has suffered and will probably suffer from the defendant's illegal conduct. Thus, in a suit for physical injuries the plaintiff may seek recovery for the pain he endured and his accrued medical expenses and for probable loss of earnings due to disability during the period of his incapacity. In suing for breach of contract the plaintiff need not prove the extent of his loss if the contract specified the “liquidated” damages, i.e., the probable loss from breach. Where there is a question as to the amount of damages, the jury usually makes the assessment. While the ordinary object of damages is simply to compensate the injured party to the extent of the injury, where there was fraud or deliberate wrongdoing, exemplary or punitive damages may be allowed. Many statutes thus provide for double or treble damages. In some instances where the extent of the loss cannot be determined or the injury is slight, nominal damages (e.g., a penny) may be granted. Usually the losing party is required to reimburse the winning party for having put him to legal expense. In England reasonable counsel fees are recoverable, while in the United States only those expenses fixed by statute are recoverable. In some U.S. states, however, even the winning party may be required to pay compensation if by delay or other improper conduct he added to his opponent's legal costs. When damages and legal costs are awarded they become a lien on the debtor's property, which the creditor may seize and sell if the debtor does not meet his obligation. In some states, if the debtor attempts to put his property out of reach, an injunction ordering him to pay may be issued. During the 1990s conservatives pursuing “tort reform” prevailed on many state legislatures to enact laws limiting damages, but state courts have consistently voided these laws as violations of state constitutional guarantees of open court systems.






31. decree

decree, in law, is a decision of a suit in a court of equity. It is the counterpart in equity of the judgment in a court of law, although in those jurisdictions where law and equity have merged, judgment is sometimes used to include both. The difference between the two, however, is fundamental. A judgment must be unconditionally for one party or another, but a decree is adaptable to the peculiar necessities of each case and may include rights and duties of both parties. A decree may impose conditions on its enforcement upon either party. The decree may act against the person of the defendant; it is not restricted to the award of money damages. It may contain an injunction against the performance of certain acts. One of the most familiar of the decrees given by courts of equity is the decree of divorce, adjudicating the dissolution of a marriage and awarding alimony. Decrees are enforced by proceedings for contempt of court.







32. deed

deed, in law, is a written document that is signed and delivered by which one person conveys land or other realty to another. A deed may assure the extent of the conveying party's ownership or, if the party is uncertain of the precise extent, he issues a quitclaim (i.e., a sale), without description, of whatever he may own. The formalities with which a deed is invested are designed to make the instrument conclusive evidence of the transaction described and to eliminate the need for further proof. In all states of the United States deeds must be formally delivered and their receipt formally attested. It is possible to deposit a deed with a third party or a court for delivery to the purchaser; this is termed a delivery in escrow. Most states also require that deeds be acknowledged by a duly authorized commissioner and that a copy be deposited with the clerk of the county where the realty is situated. If the formalities are not observed, a deed (or the contract purporting to convey realty) is some, but not conclusive, evidence of the conveyance.







33. divorce

partial or total dissolution of a marriage by the judgment of a court. Partial dissolution is a divorce “from bed and board,” a decree of judicial separation, leaving the parties officially married while forbidding cohabitation. Total dissolution of the bonds of a valid marriage is what is now generally meant by divorce. It is to be distinguished from a decree of nullity of marriage, or annulment, which is a judicial finding that there never was a valid marriage.

Although created by a contract between husband and wife, marriage is a legal relation of a particular nature with certain mutual rights and obligations, determined not by agreements but by the general law. In a sense, then, the state has an interest in every marriage. The parties cannot themselves officially terminate the marital relation by a contract of separation.

Jurisdiction over Divorce

In England, divorce was originally under the jurisdiction of the ecclesiastical courts. These courts followed the canon law rules. They could grant a divorce from bed and board and could pass on the original validity or nullity of the marriage, but could not grant a total divorce from the marriage bond. This power lay only in Parliament. In 1857, by act of Parliament, judicial courts succeeded to the jurisdiction over nullity and partial dissolution and were given the added power to grant total dissolution of the marriage. In the United States, where ecclesiastical courts were never established, the matrimonial law of England applied by these courts was never received as part of the common law. Consequently, suits for divorce can be brought under authority of statute only. The statutes usually confer upon equity courts jurisdiction over divorce. The power to legislate on divorce belongs to the states and not to the federal government, and each state has unique laws regarding divorce. The state of residence at the time of divorce, not the state in which a couple was married, determines what laws apply.

Grounds for Divorce

Until the recent advent of the “no-fault” divorce, in which neither party is expected to prove the spouse as the “guilty party” in the marriage, a marriage could be dissolved only for what the state deemed to be proper grounds. While “no-fault” divorces have become increasingly common in all U.S. states, there are still many cases where marital partners seek to establish fault, particularly in states that require a waiting period of legal separation before allowing a “no-fault” divorce. The most common grounds are adultery, desertion, and physical or mental cruelty. Habitual drunkenness, incurable mental illness, conviction of a crime, nonsupport, or constructive abandonment are other grounds for establishing fault. Corrupt consent by a party to the conduct of the other party bars a divorce, as does collusion. Forgiveness of the offense, either express or implied (as by cohabitation), on condition that it not be repeated, is a bar to a divorce for that offense.

The Divorce Decree

A decree of divorce is valid only if the court rendering the decree has jurisdiction, and jurisdiction is in the main based on the domicile of the parties. An absolute divorce, as contrasted with a decree of nullity, takes effect from the date of the decree. By the divorce decree, the custody of the children is usually given at the discretion of the court to one of the parties, the welfare of the children being the principal consideration. In recent years, fathers in divorce proceedings have fought for equal custody rights, calling into question the long-standing tradition of favoring the mother in custody battles. New developments in divorce law allow joint custody of children, as well as visitation rights for grandparents and other relatives.

The wife may retain the husband's name, although in most states she may choose to resume her maiden name. Both parties are usually at liberty to remarry, although this rule is not invariable, and a time limit within which the parties may not remarry is sometimes imposed. In most jurisdictions, one spouse may be entitled to alimony payments from the other at the discretion of the court.








34. domicile

domicile is the one's legal residence. This may or may not be the place where one actually resides at any one time. The domicile is the permanent home to which one is presumed to have the intention of returning whenever the purpose for which one is absent has been accomplished. One may simultaneously have a temporary lodging for a short time at one place, a more permanent abode called a residence at another, and a domicile at still another place. Usually the domicile of the husband and father determines that of wife and children. Determining domicile is important in defining the legal status of a person and the nationality of a public corporation (a legal person) under international law.






35. dowry

the property that a woman brings to her husband at the time of the marriage. The dowry apparently originated in the giving of a marriage gift by the family of the bridegroom to the bride and the bestowal of money upon the bride by her parents. It has been a well-established institution among the propertied classes of various lands and times, e.g., in ancient Greece and Rome, India, medieval Europe, and modern continental countries. Generally the husband has been compelled to return the dowry in case of divorce or the death of the wife when still childless. One purpose of the dowry was to provide support for the wife on the husband's death, and thus it was related remotely to the rights of dower. In civil-law countries the dowry is an important form of property. In England and the United States (except for Louisiana), the dowry system is not recognized as law.








36. duress

In law, actual or threatened violence or imprisonment, by reason of which a person is forced to enter into an agreement or to perform some other act against his will. The constraint or threat of constraint must have been directed toward the person thus compelled or toward the wife, husband, parent, child, or other near relative of the person compelled. Anyone who makes a contract under duress is entitled to void it and be free of its obligations, but in order to release him from the contract duress must be shown to have overcome his mind and will. However, annoyance and persuasion do not constitute duress.

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39. entail

entail, in law, restriction of inheritance to a limited class of descendants for at least several generations. The object of entail is to preserve large estates in land from the disintegration that is caused by equal inheritance by all the heirs and by the ordinary right of free alienation (disposal) of property interests. Legal devices similar to entail were known in Roman law and in all the countries of Europe. In England the entail became common in the early 13th cent., and in its most usual form was a conveyance by a grantor (owner) of real property to a grantee and the “heirs of his body,” i.e., his lawful offspring, in successive generations. In the inheritance the rule of primogeniture was observed. The subsequent development of the entail reflects a continuing struggle between the effort to preserve large estates and the need for free alienation. By the mid-13th cent. the courts interpreted the birth of a live baby as the satisfaction of a condition that vested the grantee with the power of alienation. This result was overcome by the statute De donis conditionalibus [conditional gifts] (1285), which gave effect to the grantor's intent. In time the grantee was able to get control of the property despite the statutory prohibition by use of the fine and other technical legal devices. Current English law permits the holder of entailed property (either real or personal) to dispose of it by deed; otherwise the entail persists. In the United States for the most part entails are either altogether prohibited or limited to a single generation.







40. easement

easement, in law, the right to use the land of another for a specified purpose, as distinguished from the right to possess that land. If the easement benefits the holder personally and is not associated with any land he owns, it is an easement in gross (e.g., a public utility's right to run power lines through another's property). At common law an easement in gross could not be transferred, but today it may be transferable. If the easement is held incident to ownership of some land, it is an easement appurtenant (e.g., the right to run a ditch through a neighbor's yard to drain your land). The land subject to the easement appurtenant is the servient estate, the land benefited the dominant estate. If certain conditions are met, the easement passes with the land to the new owner after the sale of either estate. An easement may be created by express agreement of the parties, in which case it must usually be in writing, or it may be implied by a court from the actions of the parties in certain circumstances.










41. estate

estate. 1. In property law, see property; tenure. 2. In constitutional law, an estate denotes an organized class of society with a separate voice in government. Representation by estate arose in Europe in the 13th cent. when the feudal system was being broken up as a result of the growth of the towns. The term generally designates three classes—the nobility, the clergy, and the commons. The commons were the knights and the townspeople of substance—the burgesses or bourgeoisie. The sovereign would occasionally consult the three estates and consider their grievances. Often voting was by an estate as a whole rather than by individual vote. In many cases the estates might merely advise the sovereign, and their decisions were not binding. From these practices modern parliamentary institutions gradually evolved in several countries. Much of the constitutional development of the later Middle Ages is a record of the emergence of the commons—sometimes called the third estate—into a position of equality with the other two estates. The process is clearly shown in the history of the States-General in France. The next step was the transition from representation by estates to popular representation. A crucial moment in the French Revolution was the rejection of voting according to estates and the merger of the States-General into the national assembly. The English Parliament may be viewed historically as a representative body of the estates; the nobility and the Church of England are represented by the House of Lords, and the commons—the remaining adult citizens—by the House of Commons. In fact, however, the term estate is not applicable to a country with democratic institutions and is probably not appropriate in any modern state.








42. evidence

evidence, in law, material submitted to a judge or a judicial body to resolve disputed questions of fact. The rules discussed in this article were developed in England for use in jury trials. Today, they are generally observed in all countries having the common law, although they have been extensively modified by statute in some jurisdictions. The first juries were not neutral triers of fact; rather they were convened because of their immediate knowledge of the dispute before the court. Later, the practice developed of having witnesses testify before an impartial jury. The groundwork of the rules of evidence was laid between 1500 and 1700.


The Role of Evidence in a Trial; Burdens of Proof

In criminal trials, the prosecution has to prove each element necessary to its case beyond a reasonable doubt. In civil trials, on the other hand, a party has the burden only of proving affirmative contentions by a preponderance of the evidence. Thus the plaintiff must offer some proof of each of the elements that combine to constitute the defendant's alleged wrong (see procedure), while the defendant must prove his or her affirmative defenses, e.g., in a suit for negligence, that the plaintiff's own negligence contributed to the injury.

Satisfying the burden of proof requires the prosecutor or the plaintiff to present evidence first. At the close of this presentation the criminal or civil defendant may move for acquittal or a nonsuit if admissible evidence supporting necessary contentions has not been offered. Proof may be dispensed with when an adversary formally admits a fact either in the pleadings or in court, or when the court may take judicial notice of the fact, i.e., when the fact is universally known or is easily ascertainable by the judge beyond reasonable dispute.

In recent years the problems of procuring evidence have been eased somewhat by the introduction of broader discovery (i.e., disclosure) rules. In civil cases, these rules compel each party to a suit to allow the other to have access to its witnesses and to certain types of evidence before the trial. In criminal cases, the judge has the discretionary power to order discovery; in any event, the prosecutor must release all exculpatory evidence on request.

Allegedly damaging errors in the admission of evidence are reviewable on appeal if an objection was made during the trial. In their final summing up, the attorneys may make any assertion that is supported to some degree by evidence. British judges and U.S. federal and, in some jurisdictions, state judges are permitted to comment on the credibility of the witnesses and the weight of the evidence. However, the judge must tell the jury that they are not bound by his or her remarks.


Admissible Evidence

Evidence is often presented in a tense, emotional atmosphere in a courtroom long after the event in question took place. The object of the law of evidence is to assure a high probability that questions of fact are resolved correctly. To that end, material introduced at the trial is ordinarily restricted to items of great probative value; that which may arouse unreasoning passion is ordinarily excluded. The nature of the legal controversy and the written pleadings determine what assertions of fact each party must prove or disprove to win the case, and an item of evidence that at best has a remote bearing on the factual issues must be excluded as irrelevant or immaterial. A judge prefers direct evidence (such as an official document or a witness's assertion of immediate knowledge of the question at issue) to indirect or circumstantial evidence, which merely tends to establish the issue by proving surrounding circumstances from which the principal fact may be inferred.

In addition to being relevant, evidence must be competent, i.e., it must not fall under an exclusionary rule. Obviously if the evidence is documentary (e.g., a birth certificate introduced to prove a person's age) or if it is “real” (e.g., a bloody garment exhibited to prove that the victim suffered injury), there can be a question only whether the proffered evidence is itself incompetent. The courtroom presentation of documentary evidence has been complicated by new computer technologies and the digitalization of information, which make the successful forging of texts and photographs far easier than previously.


Witnesses

Most evidence is offered by witnesses who testify before the court. Here, the question of the witness's personal competency must be resolved; it must be shown that the witness was able to know, understand, and remember the matters on which he or she is to be examined. Thus, a witness must possess the sensory faculties needed to apprehend the facts reported and must not be considered mentally ill or incompetent. Children offered as witnesses are examined by the judge to determine their intelligence and understanding.

The witness is first directly examined by the party who offers him or her, then is cross-examined by the adversary. No witness may express an opinion on any matter when the jury can draw its own conclusions from the facts; but on technical questions an expert witness (e.g., a physician) may state an opinion. Hearsay declarations (e.g., testimony concerning a statement made out of court by a person not now before the court) usually are excluded on the grounds that the person who made the statement is not available for cross-examination or for evaluation by the judge or jury. Only when the circumstances of the statement afford a high probability of its truth may it be admitted.

A witness may be excused from testifying about certain matters if he or she pleads personal privilege. In general, information confided in the course of the relations of attorney and client, priest and penitent, physician and patient, and husband and wife is subject to this privilege. In some jurisdictions such witnesses are incompetent to testify (cannot testify). Witnesses are further protected by the Fifth Amendment privilege of withholding evidence that might be self-incriminating. Criminal defendants have the privilege of refusing to take the witness stand (in which case the jury may make no negative assumptions concerning the reasons for such a refusal) and, in most situations, evidence of previous criminal convictions is inadmissible. Under the common law, parties to a civil suit and the defendant in a criminal action were not permitted to testify, but these rules have been abandoned.





43. executors and administrators

An executor is the person designated in the will of a deceased person to carry out the provisions of the will. An administrator is the person appointed by a probate court to perform the identical functions if the will does not name any executors or if those who were named executors are not capable of performing the function or are dead. An administrator is also appointed in the case of the death without a will (intestate) of any person who owns property. Those chosen representatives collect the assets and pay the debts of the estate and then distribute what remains to those who are entitled by provisions of the will or by law. To allow performance of these duties the title to the personal property passes to the executor or administrator, rather than to the beneficiaries. The administrator derives his title from the court through his letters of administration. The executor's source of title is the will itself. Besides being the defendants in any suits brought against the estate, the representatives are also authorized to bring actions to compensate the estate for damage suffered before or after death. Administration is not necessary if the heirs, the creditors of the estate, and all others interested in the estate agree to the settlement of debts and the distribution of the property. Under modern statutes, priority of right to be administrator depends largely on nearness of relation to the deceased. Where no relative applies for papers of administration, creditors, public administrators, or suitable strangers may be appointed administrator. One is ineligible to act as an administrator by reason of being an infant, insane, or lacking ordinary integrity. Illiteracy, lack of business experience, immorality, or adverse interests are not disqualifications. The executor or administrator must, in some states, post a bond for honest and faithful discharge of his duties. After he has paid the legacies and otherwise followed the directions of the will so far as legally possible, the court will discharge him if his accounting is correct and he has shown himself to have acted honestly and in good faith; otherwise his bond may be forfeited, and he is made liable to suit.

F

43. fiduciary

a person who is obliged to discharge faithfully a responsibility of trust toward another. Among the common fiduciary relationships are guardian to ward, parent to child, lawyer to client, corporate director to corporation, trustee to trust, and business partner to business partner. In discharging a trust, the fiduciary must be absolutely open and fair. Certain business methods that would be acceptable between independent parties dealing with one another “at arm's length” may expose a fiduciary to liability for having abused a position of trust. Thus, in an ordinary business transaction the prospective purchaser of land need not inform the seller of an imminent rise in realty values, but one buying land from a partner must disclose such information. In many cases courts will treat an unexplained profit derived from a fiduciary relationship as an instance of constructive fraud.





44. finder

Ordinarily the finder of lost property is entitled to retain it against anyone except the owner. It is larceny, however, for the finder to keep the property if he knows or can easily determine who owns it. In some places the finder must deliver the lost object to the police; if it is unclaimed within a prescribed period it becomes his property. Lost objects that are embedded in the soil, e.g., a deeply buried ring, belong to the landowner even if another finds them. On the other hand, objects found in a privately owned place to which the public has the right of access, e.g., a hotel, belong to the finder and not to the owner of the realty. The purchaser of an article that, without his knowledge, has something of value concealed in it, e.g., money in a desk, is legally the finder, not the owner, of the valuable.








45. fine

1. In criminal law, sum of money exacted by a lawful tribunal as punishment for a crime. In the case of misdemeanors and minor infractions of the law, convicted persons ordinarily have the alternative of paying a fine or undergoing a short term of imprisonment. This practice has been condemned at times as potentially exposing the poor to more onerous punishment than the well-to-do. Fines are also sometimes imposed in convictions for felony, usually in addition to a prison sentence. The Eighth Amendment to the Constitution of the United States prohibits the imposition of excessive fines, but the Supreme Court has never found that any statutory fine violated that provision. 2. In the law of the transfer of land, a legal fiction for permitting the sale of lands in entail. The fine, first worked out in the 15th cent., is in the form of a suit to determine the ownership of land. The buyer sues the seller, who accedes to the buyer's claim that his right of ownership is superior. The judgment of the court to this effect constitutes the buyer's title. The fine was formerly widely used in England and the United States, but simplified methods of defeating the entail have made it obsolete. 3. In feudal law, payment to the lord for rights relating to tenancy, e.g., for the privilege of releasing to another or acquiring for oneself the tenancy of land.

[abbasi_faheem]

Dear suresh y did u stop...please continue the notes and finish it till Z...waiting...
and yeh thanx a lot 4 ur efforts...

[obaid_gondal]

it is a short and concise glossary of technical law terms.... hopefully it 'll be useful for law students...

http://www.scribd.com/doc/45089334/d...y-of-law-terms