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
Attempt
One expressly or implicitly consents to a known risk.
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 nonmerchants).
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
Evidence
Party bearing the burden of proof must convince the jury
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.
One aim of punishment, whose motive is revenge.
Retribution
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
Order
Provisional remedy prior to trial; good for 10 days; not
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.