William K. Sheehy,
Legal Terminology/Legal Latin
De minimis
De minimis is a Latin phrase meaning “concerning minimal things”. It usually refers to
the failure to reach some threshold level required to be actionable.
A de minimis claim is a claim for an amount of damages that does not exceed a
specified sum. Such claims are often defined in agreements to avoid a party from
bringing claims for insignificant sums.
The term de minimis is also commonly used in copyright law. Courts have dismissed
copyright infringement cases where the alleged infringer’s use of the copyrighted work
was so slight (or insignificant) that it is deemed to be de minimis.
There is also a legal maxim “de minimis non curat lex” which means “the law does not
concern itself with trifles”.
“De minimis claims below £20,000 were excluded under the agreement.”
Persona non grata
Persona non grata is a Latin phrase which literally means "an unwelcome person." It is
a phrase which is used both in legal and non-legal settings.
In the legal sense, the phrase has a specific meaning in the context of diplomacy.
Pursuant to the Vienna Convention on Diplomatic Relations, a State may at any time
and without explanation declare any member of a diplomatic staff persona non grata. A
person so declared is no longer welcome in that country and is usually forced to return to
his or her native country. If not recalled, the receiving State "may refuse to recognize the
person concerned as a member of the mission.
In the non-legal sense, the phrase is commonly used to refer to people who are
generally unwelcome, i.e. an uninvited dinner guest, and also those who are no longer
welcome in a group due to their actions, i.e. a police officer who snitches on his
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colleagues.
“The Russian Foreign Ministry has declared a Finnish diplomat persona non grata for
helping a Finnish citizen illegally take his child out of Russia.”
Res ipsa loquitur
Res ipsa loquitur is a legal Latin phrase which translates to "the thing speaks for itself."
The doctrine indicates that there is no need to provide any further detail -- the facts of
the case are sufficient to find liability. Generally, because the facts are so obvious, a
party does not need to provide further explanation. The phrase is most often applied to
civil tort claims in which liability is clearly established merely based on a review of the
facts.
In some jurisdictions, res ipsa loquitur is merely a rule of evidence which creates a
presumption that a defendant acted negligently simply because a particular accident
occurred. The presumption arises only if (1) that which caused the accident was under
the defendant’s control, (2) the accident could only occur as a result of a careless act
and (3) plaintiff did not contribute to the accident.
“Plaintiffs attempted to invoke the doctrine of res ipsa loquitur based on the fact that
plaintiffs were injured by bricks which fell from a private bridge.”
Subpoena
A subpoena, originating from the Latin phrase sub poena meaning "under penalty", is a
written command to a person to either testify before a court or be subject to some form
of punishment. Subpoenas are generally associated with common law legal systems.
Such documents are usually served on individuals who will be witnesses in an upcoming
trial or proceeding. The subpoena usually sets forth the specific location, scheduled
date and time the witness is requested to appear. It should be noted that in some
countries, including England and Wales, subpoenas are often referred to a “witness
summons”.
“All employees with knowledge relevant to the case were served with a subpoena to
appear in front of a grand jury.”
Ex officio
Ex officio is a Latin terms meaning “by right of office” or “by virtue of one’s office or
position”. Ex officio members of boards and committees are persons who are members
by virtue of some other office or position that they hold. For example, if the bylaws of an
organization state that all board members are also members of the finance committee, a
board member is said to be an ex officio member of the finance committee, since he or
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she is automatically a member of that committee by virtue of another held position (that
of a board member). As seen in the example sentence below, ex officio is also used to
indicate the ability of an agency or a state to render a decision under the powers of its
office.
“A Member shall, ex officio if its legislation so permits or at the request of an interested
party, refuse or invalidate the registration of a trademark.”
Ex post facto
The phrase ex post facto is Latin for "after the fact". It generally refers to retroactive
acts or laws which change the legal consequences of acts which occurred prior such an
act or law. The phrase ex post facto is most typically used in connection with the
passage of laws. A law may have an ex post facto effect without being technically ex
post facto. Where a law repeals a previous law, the repealed legislation no longer
applies to the situations it once did, even if such situations arose before the law was
repealed.
In many jurisdictions, ex post facto criminal laws are seen as a violation of
the rule of law as it applies in a free and democratic society. Most common
law jurisdictions do not permit retroactive criminal legislation under the
theory that it is unfair to punish a person for an act which was legal at the
time it was committed.
As seen in the example below, however, the use of ex post facto is not
limited to the passage of laws.: “The company made an ex post facto
ratification of contracts entered into prior to formation.”
Verbatim
Verbatim is a Latin term used to mean “word by word” or “exactly”. It is used to refer to a
transcription or quotation which precisely mirrors the original. The term indicates that
there have been no changes to the text or quotation and assures the reader that the
words are exactly as they were first stated or written.
“The Miranda warnings advising individuals of their right to remain silent can be recited
verbatim by everyone who has ever watched a police drama on television.”
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Affidavit
The term affidavit is Medieval Latin for “he has made an oath”. In the Legal English
realm, it refers to a formal sworn statement of fact signed by a declarant (often called an
affiant or deponent) and witnessed by an authorized official, such as a notary public.
Affidavits are used, among other things, to gather evidence from witnesses who may not
be available to testify in person before the court.
“The signed affidavit attested to the fact that the trademark had been in use for five
years prior to the defendant’s adoption of the confusingly similar mark.”
In camera
In camera is a phrase derived from Latin literally meaning “in a chamber.” In legal
settings, it is a term which applies to court cases (or portions of cases) which are
decided “in private”, i.e. where a hearing is held before the judge in her private chambers
or when the public is excluded from the courtroom. Certain cases may be ordered to be
heard in camera when highly sensitive matters are concerned. Similarly, certain portions
of trials may be held in camera if there are highly confidential facts which a party does
not want revealed to the general public. This is the opposite of trial in open court,
whereby all the parties and witnesses testify in a public courtroom, and attorneys make
their arguments in public to the trier of fact, whether judge or jury.
“The proceedings were held in camera to protect the young victims and witnesses from
public exposure.”
Pro bono
For example: Pro bono publico (usually shortened to pro bono) is a Latin phrase
meaning "for the public good." In the legal context, the term pro bono is generally used
to indicate work undertaken voluntarily and without payment as a public service. Certain
law firms encourage their lawyers to work on pro bono matters to give back to the
community by helping those without the means or funds of acquiring competent counsel.
Such work also often provides young lawyers with valuable practical legal experience.
“Due to the artist’s dire financial situation, the only way she can file a claim is if she can
find a lawyer who will take the case on a pro bono basis.”
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Pro rata
Pro rata is a legal Latin phrase meaning "in proportion" or “proportional” as determined
by a specific factor. In the company law context, the phrase is often used in conjunction
with an existing shareholder’s right of first refusal, or “pre-emption rights” for new share
issuances. In such instances, shareholders who have pre-emption rights must be offered
that percentage of new shares which is pro rata to their existing shareholdings.
“Because the company issued pro rata dividends, every shareholder received a
distribution in proportion to the number of shares owne
Obiter dicta
For example: Obiter dicta (sometimes referred to merely as dicta), is a Latin expression
literally meaning "said by the way" or a “statement in passing”. It is used for statements,
remarks or observations made by a judge that re incidental or supplementary in deciding
a case, upon a matter not essential to the decision. Thus, although they are included in
the body of the court's opinion, such statements do not form a necessary part of the
court's decision. Under the doctrine of stare decisis, statements constituting obiter dicta
are therefore not binding, although in some jurisdictions, they can be strongly
persuasive.
“The court’s statements concerning whether strict liability was applicable were merely
obiter dicta and hence not binding on the judge in the present dispute.”
Bona fide
Bona fide is Latin for good faith and is an important concept in law. It generally connotes
something genuine, lawful, or made or done in good faith, which signifies the mental
state of honesty as to the truth or falsehood of a proposition or opinion, or as to the
morality of conduct. For example,"The power to amend the articles must be exercised
bona fide for the benefit of the company as a whole."
In modern English usage, the term bona fides is a synonym for credentials,
background, or documentation as to one's identity.
Also of note, bona fide purchaser (BFP) is a legal term that refers to an innocent party
who purchases property without notice of any third party's claim to the title of that same
property.
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Pro se
For example:
Pro se is a Latin term meaning "on one's own behalf". In the court setting, it refers to
persons who present their own cases without lawyers or other representatives. Some
individuals choose to act pro se because they have legal experience or are otherwise
confident in their ability to convey their claim or defense without assistance. Others may
simply wish to avoid paying attorneys’ fees and the often exorbitant expenses
associated with hiring a lawyer. In England and Wales, the phrase "Litigant in Person" is
sometimes used to refer to such parties.
"Due to her experience in the field, the Harvard Law School professor proceeded as a
pro se defendant in the case involving real property."
Pro forma
Pro forma is a legal Latin phrase meaning "as a matter of form". In practice, the phrase
usually refers to an act or document which is preliminary or satisfies the minimum
requirements in a perfunctory manner. The meaning of the phrase can differ depending
on the context in which it is used. In business, a pro forma document is provided before
an actual transaction takes place. A pro forma document can refer to any preliminary or
partially completed document which is designed to be replaced by a more detailed
document in the future. A pro forma invoice is used to evidence a sale and is sent in
advance of the actual, commercial invoice. A pro forma session of the legislature often
refers to a meeting which has to take place under governmental rules but at which no
formal business is discussed.
“The company's projected balance sheet, based solely on analysis and assumptions, is
merely a pro forma document to be replaced shortly by the actual balance sheet.”
Amicus curiae
Amicus curiae is a legal Latin phrase which literally means “friend of the court”. The
phrase refers to a third party (a person or group who is not a party in a dispute) who
petitions the court for permission to submit a brief in the action with the intent of
influencing the court’s decision due to an interest in the dispute. Such information is
often in the form of a legal brief on a matter which is central to the case. Where a case
has far-reaching implications, amicus curiae briefs are a way to introduce those
concerns, so that the potentially broad legal effects of court decisions will not depend
solely on the parties directly involved in the case. Courts have wide discretion to grant or
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to deny permission to act as amicus curiae. Cases which are highly publicized and/or
highly controversial may attract a number of such amicus curiae briefs.
“The consumer advocacy group filed an amicus curiae brief in the matter before the
Supreme Court due to its potentially widespread effect on individual purchasers.”
Mens rea
In the area of criminal law, mens rea, the Latin term "guilty mind", is often a necessary
element of a crime. Many crimes require a specific mental intent on the part of the
wrongdoer in order to qualify as a restricted offence. Examples of the requiredmens rea
in criminal statutes include intent (or purpose), knowledge, recklessness or negligence.
Some “strict liability” crimes do not require mens rea in order to constitute an offence.
For example, in civil law, it is not usually necessary to prove a mental element to
establish liability for breach of contract.
“Although it was established that the defendant caused the accident, he did not possess
the requisite mens rea for the offence and was therefore acquitted.”
Mutatis mutandis
Mutatis mutandis is (literally) Latin for “with those things having been changed which
need to be changed.” However, it is more often translated or understood to mean “the
necessary changes having been made”. It essentially indicates that new terms have
been substituted or that the reader should note any differences from the original and
take them into consideration.
“After extensive negotiations and redrafting of several key provisions, the two parties
finally signed the contract mutatis mutandis.”
Per diem
Per diem, is Latin for "per day" or "for each day". The phrase primarily refers to the daily
rate of any kind of payment. It is also commonly used to refer to the daily allowance a
company gives an employee to cover living and traveling expenses in connection with
work.
“Rather than accept an hourly or a flat fee, the lawyer preferred to be paid per diem.”
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Infra
Infra, Latin for “below”, is legal shorthand to indicate that a particular reference will be
further discussed or cited later in a document.
Infra is distinguished from supra, Latin for “above”, which indicates that the case or
point has already been discussed or cited previously in a document.
Both infra and supra are tools to make a document, letter or brief easier for a reader to
comprehend or follow. They not only enable one to avoid having to repeatedly write the
same citation, but also signal to the reader that a particular point will be (or has been)
explored elsewhere in the document.
“See, infra, the discussion regarding the likelihood of consumer confusion.”
“Wellington v. Sawyer, supra, at p. 57.”
Stare decisis
For example:
Stare decisis is a Latin legal term, literally meaning “to stand by things decided.” It is a
term used in common law systems to express the notion that prior court decisions must
be recognised as precedent. In other words, lower courts are bound in theory by the
precedent set forth by a higher court within its jurisdiction. Stare decisis is not, however,
a doctrine used in most civil law systems, primarily because it violates the principle that
only the legislature may make law.
“The appellate court ruling cannot be overruled without good reason, and the district
court finds no justification here to depart from our usual rule of stare decisis.”
Caveat emptor
Caveat emptor is a Latin phrase meaning “let the buyer beware.”
The phrase stands for the commercial principle that the buyer alone is responsible for
assessing the quality of a purchase before buying. This axiom or principle is sometimes
understood to mean that, absent a warranty, the buyer assumes the risk of defects in the
item sold. It is therefore incumbent upon the buyer to thoroughly inspect any goods or
services prior to purchase.
“Under the doctrine of caveat emptor, the buyer was unable to receive compensation
from the seller for defects on the property that rendered the property unfit for ordinary
purposes.”
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Arguendo
Arguendo is a Latin term meaning “for the sake of argument” that is commonly used in
appeals briefs and other litigation documents. The term indicates that the lawyer’s
written or oral statement is made as a matter of argument or illustration only. The
statement does not bear directly upon the remainder of the discussion; the lawyer is not
admitting the matter, but is merely making a legal argument based on an assumption.
The term is often used in situations where even if one assumed that the facts are as the
opposing party contends, the law or other circumstances nevertheless prevent them
from prevailing.
“Assuming arguendo that he was aware of the delayed payment, plaintiff is still not
liable under the express terms of the agreement.”
Res judicata
Res judicata denotes an important legal doctrine that generally means that once a
matter is judicially decided, it is finally decided. The doctrine bars re-litigation of matters
that have already been determined in adjudication. Broadly, res judicata bars the
reconsideration of settled civil matters. Specifically, res judicata precludes only
subsequent suits on the same cause of action between the same parties after a final
judgment on the merits.
Res judicata can also mean the judged matter itself. In other words, a matter that is final
such as a claim or cause of action that is settled or a judgment, award, or other
determination that is considered final and bars re-litigation of the same matter.
“The defendant initially responded with a motion to dismiss on res judicata grounds.”
Lacuna
A lacuna is an empty space in the law with no regulations applicable or an absent part in
a law or another written document such as a contract. In other words, it denotes an
instance when there is no controlling law or contractual provision. The plural is lacunae.
More common in UK than US English, lacuna is synonymous with loophole or a
technicality, often unintentional, which an entity can exploit to avoid the scope of a law or
a contractual provision without directly violating the law or breaching the contract.
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“The question of dual citizenship is a legal lacunae in some jurisdictions.”
Veto
To veto means to forbid, prohibit or stop a vote from passing with authority. “Since the
decision must be unanimous, no one has veto power.”
Quorum
A quorum signifies the minimum number of members of any body required to be present
in order to transact business, e.g. at a board meeting or general meeting. Usually, a
quorum constitutes a majority of the members of a body. A quorum may not be
necessary if a written resolution procedure is used. “A quorum requires at least five
board members to be present.”
Prima facie
Prima facie means before closer inspection, at first sight, or on the face of it. True, valid,
authentic, or adequate at first sight: on first appearance absent other information or
evidence. Self-evident; evident without proof or reasoning; obvious. Sufficient to
establish a fact or case unless disproved.
The plaintiff presented a prima facie case for breach of copyright and when the matter
proceeded to trial the plaintiff successfully proved his allegations.
prima facie case: a lawsuit or criminal charge which, on its face, appears to be
sufficient and supported by the requisite minimum of evidence, “open and shut.”
prima facie evidence: evidence that is sufficient to prove a factual matter at issue and
justify a favorable judgment on that issue unless rebutted.
Scienter
Scienter denotes the mental state which is an element of fraud, or the knowledge of the
nature of one’s fraudulent acts or omissions. It is also used as an adverb to mean, with
knowledge, knowingly. "Courts sometimes insist on a higher level of scienter in criminal
insider trading cases as compared with civil."
Quid pro quo
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For example:
Quid pro quo literally means “something for something” and is an equal exchange or
substitution that a person or firm makes with another in return for something done or
given or promised. Put another way, it signifies that which each party to an agreement
expects from the other, sometimes called mutual consideration. For example, “She
denied that the job was a quid pro quo.” While quid pro quo agreements are sometimes
viewed negatively, it is not always the case. In financial circles, the term is typically used
to describe a mutual agreement between in which each party provides a good or service
in return for a good or service. For example in the securities industry is a soft dollar
agreement. In a soft dollar agreement, one firm, such as an institutional investor,
provides orders to a brokerage firm as a quid pro quo for in-depth research from the
brokerage firm. This exchange of services is used as consideration instead of a
traditional, hard dollar payment.
Ultra vires
For example:
Ultra vires (beyond powers) is applied especially to acts of directors exceeding the
scope of powers granted by the articles of association of the company or the laws of the
state of incorporation. e.g. "The School Board engaged in a variety of ultra vires
activities." Compare intra vires (within limited powers).
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