PL41, Emmachild

Glossary of Terms

Acceptance Offeree’s response, in word or deed, to exercise the power created by the offer; creates a contract.

Accomplice One who intentionally aids a person to engage in conduct which constitutes an offense.

Actor One who performs or omits to perform an act.

Actus Reus A voluntary act, of commission or omission, which brings liability.

Affirm Higher court agrees with the decision of a lower court.

Alimony Contingent periodic payment, in accord with a decree of divorce or separation, or a written separation agreement, which discharges a duty of support; is income to payee, deductible by payor.

Amicus Curiae “Friend of the Court”; someone other than the one(s) who initiated a case is heard in court, usually on an appeal.

Annulment Declaration of a marriage as void (invalid) due to: fraud, duress, incurable physical incapacity (preventing consummation) mental incapacity, 5 years of insanity after the marriage, infancy.

Appeal Question of the legal policy (not the factual finding) used to decide a judgment or verdict.

Appellant One who brings the appeal; usually the loser.

Appellee One against whom the appeal is brought; usually the winner.

Appellate Court Made up of federal courts of appeal, state supreme courts, and the United States Supreme Court; hear cases that are appealed after the completion of a trial.

Assault Common Law: Attempt or threat of physical injury New York: Causing physical injury

Assumption of Risk One expressly or implicitly consents to a known risk. Attempt The point between the intent and the actual commission of the crime where actor comes “dangerously near” the final step.

Attractive Nuisance Landowner’s duty of care to child trespasser (up to age 14-16) to correct a danger which is attractive to children

Bail Monetary security given to the court by a defendant to insure that the defendant will appear for later proceedings. Bailee One to whom property is delivered, without passing title or ownership

Bailment Property transferred to bailee

Bailor One who delivers possession of property to another.

Battery Common Law: Unconsented-to touching of another. New York: Same as Assault

Bilaterial Contract Exchange of promises, producing a duty in both the offeror and offeree.

Breach of Contract A party fails to perform a promise according to its terms.

Breach of Warranty Seller fails to live up to promise that goods are as agreed to regarding title and quality.

Burden of Proof A party must produce evidence that a particular situation exists.

Canon Law Roman Catholic Church law, finally codified in 1917, derived from Palestinian law of the third century, Syrian law of the fourth century, and Roman law of the twelfth century.

Capacity The ability (legally) to enter into a contract, without which a contract is void (invalid) or voidable (invalidated without penalty); infancy, incompetency, marital status (of women).

Case Law A decision made by the highest court in a jurisdiction which serves as a precedent for future cases with similar facts.

Causa Mortis Gift A gift made in apprehension of death of the donor.

Cause of Action Right of recovery from injury, following a specific procedure.

Certiorari Method of asking the Supreme Court to review a state court judgment regarding validity of a state or federal statute; is entirely discretionary by the Court.

Chilling Effect A statute is so broad that it deters people from acting out of fear that a law will be broken.

Civil Law Law covering wrongs against a private citizen.

Clear and Present Danger Test of the Freedom of Speech: The danger of probably evil to the public outweighs the interest in free speech.

Code Unified system of laws concerning a particular area of law.

Common Law: A system of law based primarily on prior decided cases, developed primarily in England. Community Property The rule of 8 states which says that each spouse is entitled to half of whatever was accumulated during the marriage.

Comparative Negligence Both plaintiff and defendant are assessed in terms of each one’s degree of negligence when an injury occurs; the degree effects the amount of damages the plaintiff may recover.

Compelling State Interest Unless it is an exclusive federal power, states may serve their own interests, as long as such interests are valid and do not interfere with interstate commerce.

Compensatory Damages Repay injured party in terms of the detriment suffered by one party (reliance) or in terms of the benefits conferred on one party (restitution).

Complaint Plaintiff’s statement of the claim of injury, including the grounds for the jurisdiction, the proof of the injury, and the demand for the relief.

Competence A person cannot agree to contract if intoxicated or mentally inform.

Consideration In a contract, consideration is an act or event which benefits the promisor or hinders the promisee.

Conspiracy At least two people agree to do an unlawful act or a lawful act by unlawful means; the agreement is the crime.

Constitution Written law which declares conflicting lower statues invalid.

Construction Possession Possession by owner, even though entrusted to another; e.g., possession by a non-present owner of land entrusted to a caretaker.

Contract A promise or set of promises which brings a duty or duties under the law.

Counterclaim The defendant’s own claim against the plaintiff, arising out of the transaction in the plaintiff’s claim.

Counter Offer Offeree rejects the offer by varying the terms of the offer.

Court Derived from the Latin word curia, refers to persons gathered together to determine a legal issue.

Covenant Common law term, derived from the 13th century, form of contract.

Crime A wrong against the public, rather than against an individual citizen.

Cross Claim A claim asserted against a co-party, by a plaintiff. Custom The traditional way of deciding legal issues; common law was originally the customs of the royal courts.

Damages Monetary evaluation of the injury done a party.

Declaratory Judgment The Supreme Court grants relief as to the constitutional validity of a state criminal statute even though the State has not yet ruled; somewhat like the Court’s Advisory Opinions (where the court writes an opinion about a hypothetical case).

Deed The writing which is used to transfer title to land.

Defendant Party against whom judgment is sought.

Deterrence One of the aims of punishment: to prevent future criminals.

Directed Verdict Takes the case away from the jury and determines the outcome as a matter of law; occurs when the court believes that reasonable people could not differ as to the result.

Dismissal Plaintiff may dismiss before defendant answers; court may dismiss if defendant’s defenses are adequate or if plaintiff claim fails in certain respects.

Dissent Opinion of a minority of the court concerning the outcome of a case.

Divorce A state’s legal provision for ending the marriage contract. New York law provides for Separation, Cruel and Inhuman Treatment, Adultery, Abandonment.

Draft One type of Negotiable (transferable) instrument; is an order to pay money, e.g. a check.

Due Process Certain fundamental rights of a citizen guaranteed by the 5th and 14th Amendments.

Duress Coercion which the reasonable person could not resist, which either excuses a defendant, or reduces the charge against the accused.

Duty of Care An obligation to which the law will give recognition to conform to a particular standard of conduct toward another person, e.g., parent to child; landowner to visitor.

Easement An interest in land that one does not possess, e.g., to walk upon another’s land to have access to water.

Embezzlement Taking, without the owner’s consent, property in defendant’s possession, with the intent not to return to the owner. Equal Protection Constitutional right (e.g., 14th Amendment) to all classes of people to insure all fundamental rights.

Equity Binds a person to fulfill the promise of the contract; specific performance.

Express Contract Agreement in which the terms are manifested in words.

Express Warranty The promise, description or sample of the goods causes the buyer to reasonably expect confirming goods. Buyer agrees on the basis of this promise, description, or sample.

Extortion Theft of property by threatening future harm (mental physical).

Felony An offense for which a sentence to a term of imprisonment in excess of one year may be imposed.

Felony-Murder In the course of a felony, the actor causes the death of another; the mens rea of the felony is transferred to the killing.

Findings of Fact Determination of the actual facts of the event under dispute; usually the function of the jury.

Findings of Law Determination of the appropriate law which applies to the facts; the function of the judge.

Fraud Misrepresentation of a material fact upon which another relied.

Fundamental Right A right which is necessary for life, e.g., the right to travel; not for mere convenience (e.g., the right to divorce.)

Gift Gratuitous promise; no benefit to the promisor; no bargained-for exchange.

Grand Jury A body of people whose function is to determine whether there is enough evidence to warrant a criminal trail; in ½ of the United States, the district attorney serves this function.

Holding The majority opinion of a court, stating the judgment and the rule of law applied.

Implied Contract Implied in Fact: Agreement is manifested by conduct of parties. Implied in Law (Quasi Contract): The court’s discretion may imply a contract, even if no promise was ever intended or made.

Implied Warranty Every seller warrants implicitly that a) the goods are merchantable for ordinary use (applies to merchants only) b) the goods are fit for the buyer’s particular purpose (applies to merchants and non- merchants).

Impossibility If circumstance or fact necessary to commit an offense does not exist (e.g., defendant is not already legally married, although the defendant does not know this), defendant is guilty of attempted bigamy, as long as the circumstances and facts, if they were as defendant believed them to be, would lead to an offense.

Indict Declaration by a Grand Jury or District Attorney that defendant may be held for criminal trial.

Infancy In New York, a person is an infant (and therefore makes only voidable contracts) under age 18.

Informed Consent Patient consents to surgery after being told of the risks and ramifications of the surgery

Injunction Interim relief preventing one party from acting pending a final determination; maintains the status quo.

Insanity New York Penal Code: At the time of the crime, defendant lacked substantial capacity to know a) consequences of the conduct, or b) that the conduct was wrong. Contract Law: party is psychotic.

Intent One’s conscious objective is to cause the result or to engage in the conduct which caused the result.

Invasion of Privacy Involves: a) misappropriation of one’s name or photograph without written consent b) Intrusion (wiretapping) c) Public disclosure of private facts d) Presenting a person in a false light without written consent

Invitee Social guest on one’s property; landowner owes a duty to warn guest of a risk which guest could not reasonably know.

Inter vivos Gift Gift made within the donor’s life, intending the transfer to be immediate.

JNOV “Judgment Notwithstanding the Verdict”: As an alternate to Directed Verdict, a judge reserves judgment until the jury decides; if Plaintiff loses, judge may evaluate the legal sufficiency of the evidence.

Jurisdiction Power over the parties (e.g., out-of-state resident); over the subject matter (e.g., is it a federal or state question).

Jury Petit Jury: Group who determines civil or criminal liability. Grand Jury: Group who determines whether there is enough evidence to warrant a criminal trial.

King’s Bench Common Law (British) court of criminal matters; Common Bench is the court of civil matters.

Legislation Lawmaking by elected representatives, in contrast to case law. Legislative Intent For ambiguous laws, or novel issues, the purpose intended by the legislators who wrote the law.

Libel Written defamation; Special damages (other than to one’s reputation) need not be proven, if on its face is defamatory.

Licensee Business guest on one’s property; landowner’s duty to warn guest of unforeseen dangers.

Malpractice M.D. fails to use the standard of care in general use.

Majority Opinion Opinion of a majority of the Court = the Holding

Manslaughter Recklessly causes the death of another, including through abortion (Manslaughter II); with intent to cause serious physical injury, causes death (Manslaughter I).

Mens Rea The act or its result is intended by the actor; recklessness or negligence may be sufficient to show intent.

Misdemeanor An offense, other than a traffic infraction, for which sentence to a term of imprisonment in excess of 15 days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed.

Misfeasance Affirmative conduct which results in one’s failure to observe a duty of care.

Mootness The event at issue has ceased to exist at the time of the appeal; the Supreme Court will not hear cases which are moot.

Negligence Fails to observe a duty, or to avoid a risk, which should have been observed and avoided.

Negotiable Instrument Transferable instrument: promissory Note & Draft; made negotiable upon endorsement.

Nonfeasance Failure to take steps which would avoid harm to one to whom a duty of care is owed.

Offer Confers the power on another to create a contract; made in good faith and include some definite terms.

Ownership Possession of Title, not necessarily possession of the goods.

Petitioner Appellant

Plaintiff Party who initiates the litigation via a complaint.

Plea The statement of the plaintiff’s case and the defendant’s answer. Possession Generally, having control over goods or property, whether consciously or unconsciously; voluntarily or involuntarily.

Precedent Prior court decision on a similar issue; primary source of law; largely binding on another court, unless is out of state court decision or lower court decision – in this case is merely persuasive authority.

Preponderance of the Party bearing the burden of proof must convince the jury Evidence that it is “more likely than not” that the proposition is true.

Prior Restraint Indirect limit on first Amendment Rights; one is restrained from acting prior to a judicial determination of the constitutionality of the act; censorship is the motive of prior restraint.

Privity In a contract, those to whom the promises refer may benefit from the contract; privity may exist for third parties, as well as the promisor and promissee.

Promissory Note Negotiable Instrument; written promisee to pay money to payee, signed by the payor (maker).

Proximate Cause Reasonable connection between defendant’s act or omission and plaintiff’s damage; defendant’s behavior is a material element and substantial factor in bringing about the injury.

Psychic Injury In New York, must intend psychological injury in most cases in order to be liable; with intent, psychic harm alone is sufficient.

Punitive Damages At jury’s or court’s discretion; intended to punish defendant, over and above the damages sustained by the defendant’s conduct.

Question of Fact Determination, usually by the jury, of the truth of the facts as presented by both parties.

Question of Law Court’s decision, by reference to statutes, rules, principles and precedents, as to how to apply the law to the particular facts of the case.

Quit Claim Deed Buyer of land receives only the title, good or bad, that the seller had; seller does not guarantee good title.

Reasonable Person Standard Uniform standard of behavior required by all people in the same (or similar) physical and mental state as the actor; when a child assumes the activity of an adult, the child may be held to the standard of the adult.

Recklessness One is aware of and consciously disregards a substantial and unjustifiable risk that a result will occur or that a part circumstance exists; use the reasonable person test. Reform One of the aims of Utilitarian Punishment; to change the behavior of the criminal.

Remand Federal Court sends the case back to State court for reconsideration, based on error in the Federal Court.

Res Ipsa Loquitor Inference of negligence on circumstantial evidence: defendant must have exclusive control of the events; plaintiff cannot have contributed to the injury; the injury is the kind which does not occur unless one is negligent.

Res Judicata A state gives the same effect to a judgment that the judgment has in the state rendering judgment.

Respondent The one to whom the appeal is directed; usually the winner at the trial level. Retribution One aim of punishment, whose motive is revenge.

Reversal Appellate Court decides a case contrary to the holding at the lower court level.

Revocation Before acceptance by the offeree, the offeror terminates the offer.

Robbery Delivery of property to a thief under threat of immediate physical harm.

Roman Law In addition to Canon Law, the primary basis of British Common Law

Sale Passage of title from seller to buyer for a price, whether immediately or in the form of a promise to sell future goods.

Slander Oral defamation; slander per se: need not plead and prove special damages if there is publication that one has a “loathsome” disease, that a woman is unchaste, that one is guilty of moral turpitude, or that one’s professional competence is disparaged.

Special Damages Arise directly from the defamation; not easily provable such as a job loss.

Stare Decisis A decision of a superior court is binding upon a lower court; “Let the decision stand;” similar to precedent.

Statute State-made laws, written by legislative bodies.

Statute of Frauds Requirement that a contract for the sale of goods for $50 or more must be in writing which is signed by the party to be charged and which specifies a quantity of goods to be sold; exceptions include specially-made goods, and sales between merchants.

Statute of Limitations Time limit during which a party may bring an action. Strict Liability Absolute Liability; liability without fault; act performed is so hazardous, liability is automatic; plaintiff’s assumption of risk may reduce damages.

Summary Judgment Judgment by the judge based on the pleadings (Plaintiff’s Complain, Defendant’s Answer); judge determines that the facts at issue are such that reasonable people would not differ; jury unnecessary; no real issue or dispute.

Supremacy Clause Article VI, Section 2. Powers not enumerated (Art. I, Section 8) and delegated to the Federal Government are reserved to the states, unless the state acts inconsistently with the Federal Government

Supreme Court Constitutionally mandated court; powers described in Art. III Supreme Law of the Land (Art. VI, Section 2).

Suspect Class Statutory classification which denies the class equal protection is unconstitutional if the class: a) has a history of discrimination b) is determined by accidents of birth c) is under-represented in the decision-making process.

Temporary Restraining Provisional remedy prior to trial; good for 10 days; not Order appealable.

Theft Taking property without the owner’s consent.

Title Right of ownership of property.

Tort A civil wrong, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages.

Trespass Entering upon another’s property without the owner’s consent.

Unconscionability Contractual agreements or terms which take unfair advantage of a party, rendering the contract unenforceable.

Unilateral Contract One party makes a promise, in return for an act, rather than for another promise. The offeror is obligated when the act is performed.

Venue The county or district in an appropriate jurisdiction where the case is to be tried; may be determined by defendant’s residence, plaintiff’s place of business, etc.

Verdict General: grants victory to either the plaintiff or defendant; Special: Specific finding of fact; jury does not apply the law to the facts; judge renders judgment.

Wrongful Death Defendant’s tort (wrongful act, neglect or default) causes death; action brought by deceased’s estate.