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, so stiled from the Irish name of judges, who were denominated Brehons. But king John in the twelfth year of his reign went into Ireland, and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England .... But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon law: so that both Henry the third and Edward the first were obliged to renew the injunction .... And yet, even in the reign of queen Elizabeth, the wild natives still kept and preserved their Brehon law .... " 1 William Blackstone, Commentaries on the Laws of England 1 00-01 (1765). B reorganization. See REORGANIZATION (2). brephotrophus brephotrophus (bre-fah-tra-fas). [Greek] Civil law. A person who manages institutions that receive and care for poor or abandoned children . The word is Greek in origin (lit. meaning "one who feeds an infant") and was used in late Roman law, but it first appeared in English in the 18th century. PI. brephotrophi. brethren (breth-r<ln), n. pl. Brothers, esp. those consid ered spiritual kin (such as male colleagues on a court) <my brethren argue in the dissent that my statutory interpretation is faulty> . The use of this collegial term has naturally dwindled as more women have entered law and esp. into the judiciary. Cf. SISTREN. Bretts and Scots, Laws of the. The customary laws used by the Celtic tribes of Scotland . Edward I of England purported to abolish the laws in the early 14th century. breve (breev or bree-vee), n. [Law Latin] Hist. Writ. The word brevis meant "short," and brevia were short writs, unlike charters. PI. brevia (bree-vee-<:l). album breve (al-b<:lm breev or bree-vee). A blank writ; a writ with a blank or omission in it. apertum breve (a-par-t<:lm breev or bree-vee). [Latin "open writ"] An open, unsealed writ. See patent writ under WRIT. Cf. close write under WRIT; CLAUSUM. breve de bono et malo (breev or bree-vee dee boh-noh et mal-oh). See DE ODIO ET ATIA. breve de conventione (breev or bree-vee dee k<ln-ven shee-oh-nee). See WRIT OF COVENANT. breve de cursu. See WRIT OF COURSE. breve de recto (breev or bree-vee dee rek-toh). See DE RECTO. breve de transgressione super casum (breev or bree-vee dee trans-gres[hl-ee-oh-nee s[y]oo-par kay-sam). See TRESPASS ON THE CASE. breve innominatum (breev or bree-vee i-nom-a-nay tam). [Latin "innominate writ"] A writ that recites a cause of action only in general terms. breve magnum de recto (breev or bree-vee mag-nam dee rek-toh). See DE RECTO PATENS. breve nominatum. A writ in which the complaint par~ ticularly states the time, place, and demand. breve perquirere (breev or bree-vee p<lr-kWI-r<l-ree). [Latin "to obtain a writ"] To purchase a writ or license of trial in the king's courts. breve rebellionis. See COMMISSION OF REBELLION. breve testatum (breev or bree-vee tes-tay-t;lm). [Latin "a witnessed writ"] A written memorandum used to memorialize the terms of a conveyance and investi ture of land . Witnesses to the conveyance did not sign the document, but their names were recorded. Brevia testata were introduced to reduce disputes con cerning the terms of oral grants. brevia amicabilia (bree-vee-a am-;l-b-bil-ee-;l). [Latin "writs with agreement"] Writs obtained with 216 the agreement or consent of the opposing party in an action. brevia anticipantia (bree-vee-;l an-tis-;l-pan-shee-;l). [Latin "anticipatory writs"] Anticipatory or preven tive writs . Six were included in this category: writs of mesne; warrantia chartae; monstraverul1t; audita querela; curia claudenda; and ne injuste vexes. See QUIA TIMET, brevia formata (bree-vee-;l for-may-t<l). [Latin "writs of approved form"] Writs of established and approved form, issued as a matter of course. Cf. brevia magis tralia. brevia judicialia (bree-vee-<l joo-dish-ee-ay-Iee-a). [Latin "judicial writs"] Writs that issue during an action or afterward in aid of judgment . A court issued such a writ after an original writ had issued out of Chancery. Cf. brevia originale. brevia magistralia (bree-vee-a maj-i-stray-Iee-a), [Latin "masters' writs"] Writs issued by the masters or clerks of Chancery accordi ng to the circumstances of particular cases . These writs, unlike some others, might be varied in accordance with the complainant's particular situation. Ct~ brevia formata. brevia originale (bree-vee-;l ;l-rij-i-nay-Iee). [Latin] Original writ . This writ began a judicial action. Cf. brevia judicialia. brevia selecta (bree-vee-;l sa-lek-t;l). [Latin "selected writs"] Choice or selected writs or processes. -Abbr. brev. sel. brevet (br<l-vet or brev-it). [French] 1. Military law. A commission promoting an officer to a higher rank, esp. during wartime, but without a corresponding pay increase. [Cases: Armed Services 13.1(5).] 2. French law. A privilege or warrant granted by the government to a private person, authorizing a special benefit or the exercise of an exclusive privilege . For example, a brevet d'invention is a patent for an inven tion. 3. Patents. A patent. Also termed (in sense 3) brevet d'invention. brevet officer. See OFFICER (2). brevia amicabilia. See BREVE. brevia anticipantia. See BREVE. brevia formata. See BREVE. brevia judicialia. See BREVE. brevia magistralia. See BREVE. brevia originale. See BREVE. Breviarium Alaricianum (bree-vee-air-ee-<lm al-<l ri-kay-nam). [Latin] An abridgment (or breviary) of Roman law compiled by order of the ViSigoth king Alaric II, published for the use of his Roman subjects in the year 506 . Revised versions were known as the Lex Romana Visigothorum. It was also termed the Breviar ium Aniani after Alaric's chancellor, Anian, who edited and distributed the work. Also termed Breviary of Alaric (bree-vee-er-ee aval-;l-rik). 217 'Though the Breviariumwas later replaced by the Lex Visig othorum in the Visigothic kingdom, it continued in use in southern France and Lombardy, which had meantime passed under the dominion of the Franks. Its qualities made the Breviarium a book of high authority throughout the whole of western Europe during the Middle Ages and it was one of the main channels through which Roman law entered western European law prior to the Reception." David M. Walker, The Oxford Companion to Law 151-52 (l980). brevia selecta. See BREVE. breviate (bree-vee-<lt). [Latin] Rist. An abstract of a writing; esp., a short statement attached to a Parlia mentary bi~l summarizing the contents of the bill. brevia testata (bree-vee-<l tes-tay-t<l). [Latin] Rist. See breve testatum under BREVE. brevibus et ratulis liberandis (bree-v<l-b<ls et roch-<l bs lib-<lr-an-dis). [Latin "breves and rolls to be freed"] Rist. A writ ordering a sheriff to turn over to a succes sor all paraphernalia of office. brevi manu (bree-vI man-yoo), adv. [Latin "with a short hand"] Roman & civil law. 1. Directly; by the shortest route. 2. 'Without a legal warrant; on one's own authority. -In Roman law, the term referred to the contractual transfer (traditio) of ownership of an item to one who already had physical control of the item. See TRADITIO BREVI MANU; CONSTITUTUM POS SESSORIUM. In Scotland, this phrase usu. Signified the performance of an act without the necessity of resort ing to the courts. "Thus, for example, it was anciently the practice in Scotland for an heritable proprietor, on his own authority, to poind his tenant's moveables for payment of his rent, without applying to any other judge .... Brevi manu in the Roman law is usually applied to a kind of constructive delivery. A thing is said to be transferred by brevi manu tradition, when it has been previously in the buyer's possession on some other title, as pledge or loan." William Bell, Bell's Dictionary and Digest of the Law of Scotland 134 (George Watson ed., 7th ed. 1890), brevitatis causa (brev-i-tay-tis kaw-z<l). [Latin] Scots law. For the sake of brevity. -The phrase was inserted in legal documents to show that another document had been incorporated by reference but not fully quoted. brev. sel. See brevia selecta under BREVE. bribe, n. (I5c) A price, reward, gift or favor bestowed or promised with a view to pervert the judgment of or influence the action of a person in a position of trust. Cf. BARRATRY (4). -bribe, vb. "The core concept of a bribe is an inducement improperly influencing the performance of a public function meant to be gratuitously exercised." John T. Noonan Jr., Bribes xi (1984). bribee. (19c) One who receives a bribe. Also termed bribe-taker. bribe-giver. See BRIBER. briber. (I7c) One who offers a bribe. -Also termed bribe-giver. bribery, n. (l6c) The corrupt payment, receipt, or solici tation of a private favor for official action. -Bribery is a felony in most jurisdictions. See Model Penal Code brief 240.1. Cf. KICKBACK. [Cases: Bribery<:;=:: 1.J bribe, vb. "If money has been corruptly paid and corruptly received, for the purpose of influencing official action, do we have one crime of which two are guilty, or two different crimes? No uniform answer is possible under existing statutes. Under some of the provisions bribery is one offense and references to (1) giving or offering a bribe. or (2) to receiv ing or soliciting a bribe, are merely factual statements in regard to the guilt of one party or the other. Under another plan 'bribery' is employed as a generic term to cover two different offenses: (1) giving or offering a bribe. and (2) receiving or soliCiting a bribe. A third plan uses the word 'bribery' to indicate the offense of the briber and 'receiv ing a bribe' for the other side of the transaction." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 537 (3d ed, 1982), commercial bribery. (1927) 1. The knowing solicitation or acceptance of a benefit in exchange for Violating an oath of fidelity, such as that owed by an employee, partner, trustee, or attorney. Model Penal Code 224.8(1). 2. A supposedly disinterested appraiser's acceptance of a benefit that influences the appraisal of goods or services. Model Penal Code 224.8(2). 3. Corrupt dealing with the agents or employees of pro spective buyers to secure an advantage over business competitors. bribe-taker. See BRIBEE. bribour (brI-b<lr). [fro French bribeur] Rist. A thief. bridge bank. A national bank chartered to operate an insolvent bank for up to three years or until the bank is sold. [Cases: Banks and Banking G-~;285-287, 50S.J bridgebote. See BRIGBOTE. bridge financing. See bridge loan under LOAN. bridge loan. See LOAN. bridge the gap. Trademarks. To capitalize on the goodwill associated with an existing trademark or tradename by using it or a similar mark on new lines of products or services, or on the same products or services in new marketing territories. [Cases: Trademarks (,'-::> 1104.] brief, n. (l4c) 1. A written statement setting out the legal contentions of a party in litigation, esp. on appeal; a document prepared by counsel as the basis for arguing a case, consisting oflegal and factual arguments and the authorities in support of them. Also termed legal brief; brief of argument. [Cases: Appeal and Error C= 756; Criminal Law<:;=:: 1l30; Federal Courts <'::=-'712.] amicus brief. A brief,

<:;=:: 1l30; Federal Courts <'::=-'712.] amicus brief. A brief, usu. at the appellate level, prepared and filed by an amicus curiae with the court's permission. Sometimes shortened to amicus. Also termed friend-of-the-court brief [Cases: Amicus Curiae <:;=:: 3.] Anders brief. (1969) Criminal procedure. A brief filed by a court-appointed defense attorney who wants to withdraw from the case on appeal based on a belief that the appeal is frivolous. -In an Anders brief, the attorney seeking to withdraw must identify anything in the record that might arguably support the appeal. The court then decides whether the appeal is frivo lous and whether the attorney should be permitted to briefing attorney withdraw. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). Also termed no-merit brief [Cases: Criminal Law "Anders requires an attorney to assume two somewhat con tradictory roles when filing a nomerit brief. The first, and most important, role is that of an advocate, Anders makes clear that the first duty of appellate counsel is to study the record and to consult with the defendant to ascertain whether there is anything in the record to support an appeal. Counsel should not consider the case with a view toward finding no merit or of acting as a neutral party, Only if counsel can find no issue of even arguable merit does he change hats and become an amicus curiae." Jonathan M. Purver & Lawrence E. Taylor, Handling Criminal Appeals 138, at 285 (1980). appeal brief 1. See appellate brief 2. Patents. A patent applicant's brief to the Board of Patent Appeals and Interferences, arguing that the patent examiner was incorrect in rejecting the application. Cf. EXAMINER'S ANSWER. [Cases: Patents C::> Ill.] appellate brief. A brief submitted to an appeals court; specif., a brief filed by a party to an appeal pending in a court appellate jurisdiction . The brief may be filed for an individual party or on behalf of two or more parties. Also termed appeal brief [Cases: Appeal and Error C::c756; Criminal Law C::> 1130; Federal Courts "An appellate brief is a written argument in support of or in opposition to the order, decree, or judgment below." Frederick Wiener, Briefing and Arguing Federal Appeals 37 (rev. 1967). bench brief An advocate's short brief, prepared for use by panelists in a moot-court competition or mock oral argument . The brief summarizes the facts, law, and arguments for both sides on the issues. "Bench briefs are superior to the appellate briefs in some cases, because people are more likely to read them. The bench brief should be more neutral than the briefs actually filed in the real proceeding, which will help your mock judges prepare questions to ask. By providing the mockjudges with these bench briefs, it is easier for them to become prepared, it is far less burdensome on the judges and therefore easier to get them to agree to help and you improve the quality of your presentation." Ronald J. Rychlak, Effective Appellate AdVOcacy: Tips from the Teams, 66 Miss. L.J. 527, 543 (1997). Brandeis brief. See BRANDEIS BRIEF. brief on the merits. A brief that sets out the issues to be decided, the party's position, and the arguments and authorities in support. Also termed points and-authorities brief; merits brief [Cases; Appeal and Error 761] closed brief In law school, an appellate brief prepared by a student using only a stipulated factual outline and research materials provided in a package, Closed briefs are usu. aSSigned in first-year legal writing classes, sometimes in preparation for moot court They may also be used to select among candi dates for law review. merits brief. See brief on the merits. no-merit brief. See Anders brief 218 open brief In law school, an appellate brief prepared by a student using a stipulated factual outline and open ended research that the student independently finds, as opposed to sources supplied by a professor. [Cases: Appeal and Error Federal Courts C::>712.] opening brief. A party's first brief at a given stage of a lawsuit. -Although this term is most often associated with a plaintiff or appellant, it is sometimes applied to a defendant or respondent. Also termed opening brief on the merits. [Cases; Appeal and Error C=,) 756; Federal Courts points-and-authorities brief. See briefon the merits. proof brief. (1997) A preliminary appellate brief to be reviewed by the clerk of the court for compliance with applicable rules . Proof briefs are reqUired by local rules of the U.S. Court of Appeals for the Sixth Circuit. A proof brief in full compliance will be accepted and filed, If not in compliance, it will be returned for corrections to be made, and a deadline will be set for refiling. After all proof briefs have been accepted in a case, a date is set for filing a final brief, which may be modified only to include jOint-appendix references, repagination, or updated citations. reply brief. (1872) A brief that responds to issues and arguments raised in the brief previously filed by one's opponent; esp., a movant's or appellant's brief filed to rebut a briefin opposition, See REBUTTAL (3), [Cases: Appeal and Error C::>762; Criminal Law G" 1130(6); Federal Courts trial brief. (1927) Counsel's written submission, usu. just before trial, outlining the legal issues before the court and arguing one side's position. [Cases: Federal Civil Procedure C::> 1951; Trial 2. English law. A solicitor's document that abstracts the pleadings and facts to inform a barrister about the case. 3. ABSTRACT OF TITLE. 4. CASE NOTE. brief, vb. briefing attorney. See ATTORNEY. briefmanship, n. The quality of the work done in pro- ducing a written legal argument. "Catering to the predilections of ajudge is not toadyism; it is skillful briefmanship." Mortimer Levitan, "Effective Brief Writing," in Lawyers Encyclopedia 995,998 (1963). brief of argument. See BRIEF (1). brief oftitle. See ABSTRACT OF TITLE. brief on the merits. See BRIEF. brief-writing. (1891) The art or practice of preparing legal briefs. -Also termed brief-making. brief- writer, n. brieve. Hist. Scots law. A chancery writ ordering that a trial be held on the matters specified in the writ . By the late 20th century, brieves were rarely used except in proceedings to appoint a curator for an incompetent person. brieve of mortancestry. See MORT D'ANCESTOR. 219 brigandage (brig-;m-dij). Archaic. Plundering and banditry carried out by bands of robbers . Piracy is sometimes called "maritime brigandage." brigbote (brig-baht), n. Rist. An obligation, often extracted as a tax or a on land, to contribute to the cost of maintaining walls, and bridges. Also spelled bridgebote. Often termed bote. See BOTE (4). Briggs Law. Archaic. A 1921 Massachusetts law that required all criminal defendants who had been repeatedly indicted, previously convicted of a felony, or charged with a capital offense to undergo psychi atric evaluation . The purpose of the evaluation was "to determine [offenders'] mental condition and the existence of any mental disease or defect [that] would affect [their] criminal responsibility." Mass. Gen. Laws ch. 123, 100A (1921). Although the term is no longer used in Massachusetts, an updated form of the law still exists, and every state has its own form of it. bright-line rule. (1973) A legal rule of decision that tends to resolve issues, esp. ambiguities, simply and straight forwardly, sometimes sacrificing equity for certainty. bring an action. To sue; institute legal proceedings. [Cases: Action (;:::>64, 66.] bring-down provision. Contracts. A contractual covenant that all of a party's representations and war ranties were true when the contract was executed and will be true on the closing date. bring to book. (1865) To arrest and try (an offender) <the fugitives were brought to book and convicted>. British subject. The status conferred on a citizen of the United Kingdom and the Commonwealth countries such as Canada, Australia, New Zealand, and India by the British Nationality Act of 1981. -Although this is the current sense, the phrase British subject has had many different meanings over the years, under differ ent statutes. Broadcast Musk, Inc. Copyright. One of the U.S. per forming-rights societies that, on behalf of copyright owners, licenses the public performance of nondra matic musical works. Abbr. BMI. broad constructionism. See liberal constructionism under CONSTRUCTIONISM. broad constructionist. See liberal constructionist under CONSTRUCTIONIST. broadened reissue patent. See PATENT (3). broadening of a claim. Patents. The enlargement of the scope of a patent claim to expand its coverage . The broader a patent claim, the greater the scope of pro tection because more methods or devices may poten tially infringe the claim. But drafting a claim broadly increases the risk that an accused infringer may suc cessfully invalidate the claim through prior art. See prior art under ART. [Cases: Patents (;:::> 165(3).] broadening statement. Patents. Wording in a claim to the effect that the invention includes forms other than the details shown in the application . A broadening broker statement is usu. taken as boilerplate and given little or no effect. -Also termed catch-all. broader than the invention, adj. (Of a patent claim) having a scope that exceeds the limits of the invention disclosed in the application or patent. broad-form insurance. See INSURANCE. broad-form policy. See INSURANCE POLICY. broad interpretation. See liberal construction under CONSTRUCTION. broadside objection. See general objection under OBfEC TION. brocard (brahk-;lrd or broh-k.:lrd). An elementary legal principle or maxim, esp. one deriving from Roman law or ancient custom. brocarius (broh-kair-ee-;ls). [Law Latin] Hist. A broker; a middleman between buyer and seller. broker, n. (14c) 1. An agent who acts as an intermedi ary or negotiator, esp. between prospective buyers and sellers; a person employed to make bargains and contracts between other persons in matters of trade, commerce, or navigation . A broker differs from a factor because the broker usu. does not have posses sion of the property. Cf. FACTOR. [Cases: Brokers 2.) 2. Securities. A person engaged in the business of conducting securities transactions for the accounts of others. [Cases: Securities Regulation (;:::> ll.20, 40.12, 60.32.] -broker, vb. "The most important determining factor of what consti tutes a 'broker' is whether the party is dealing for itself or for another. A broker may, by contract, have title to property pass through it (though usually it does not), and it may, by contract, collect from the consumer, but a broker does not deal on its account. Two preliminary requirements must be met for a finding that an individual is acting as a broker: (1) the person is acting for compensation; and (2) the person is acting on behalf of someone else." 12 Am. Jur. 2d Brokers 1 (1997). broker-agent.!. A person who acts as an intermedi ary between parties to a transaction, and as a repre sentative of one of them. [Cases: Brokers 6.] 2. A person licensed both as a broker and as an agent. [Cases: Brokers (;:::>3.] broker-dealer. A brokerage firm that engages in the business of trading securities for its own account (i.e., as a principal) before selling them to custom ers. -Such a firm is usu_ registered with the SEC and with the state in which it does business. See DEALER (2). [Cases: Securities Regulation 11.20,40.12, 60.32.] "Since many broker-dealers maintain custody of funds and securities belonging to their customers, safeguards are required to assure that the customers can recover those funds and securities in the event the broker-dealer becomes insolvent. The three principal techniques that have been utilized are (a) financial responsibility standards for broker-dealers, (b) requirements for segregation of customers' funds and securities, and (c) maintenance of an industry-wide fund to satisfy the claims of customers whose brokerage firms become insolvent." David L. Ratner, Securities Regulation in a Nutshell 182-83 (4th ed. 1992). brokerage broker for sale. A broker retained to sell something, but having neither possession of the goods nor any right of action in the broker's own name on contracts that the broker enters into. [Cases: Brokers (;::=-2,6.] broker's broker. A municipal securities broker or dealer who routinely effects transactions for the account of other brokers, dealers, and

municipal securities broker or dealer who routinely effects transactions for the account of other brokers, dealers, and municipal securities dealers. commercial broker. A broker who negotiates the sale of goods without having possession or control of the goods. Cf FACTOR (2). [Cases: Brokers (;:::::;2,6.] commission broker. A member of a stock or commod ity exchange who executes buy and sell orders. customhouse broker. A broker who prepares paper work for the entry or clearance of ships, and for the import or export of goods. -Also termed customs broker. [Cases: Customs Duties ~60.5.] discount broker. 1. A broker who discounts bills of exchange and promissory notes, and advances money on securities. 2. A broker who executes buy and sell orders at commission rates lower than those of full service brokers. [Cases: Brokers (;::=69.J government-securities interdealer broker. A broker engaged exclusively in the business of transacting in government securities for parties who are themselves government brokers or dealers. institutional broker. A broker who trades securities for institutional clients such as banks, mutual funds, pension funds, and insurance companies. insurance broker. (lSc) Insurance. A person who, for compensation, brings about or negotiates contracts of insurance as an agent for someone else, but not as an officer, salaried employee, or licensed agent of an insurance company . The broker acts as an interme diary between the insured and the insurer. -Also termed producer. [Cases: Insurance (;:::::; 1609.] "The term 'insurance broker' is often used to characterize an indiVidual who is thought to act primarily on behalf of a purchaser in an insurance transaction. This delineation ... is employed by some courts and writers even though almost all insurance brokers are actually compensated for their services through commissions that are paid by the insurers. Because brokers receive compensation from the insurer, it seems evident that a persuasive argument can be made for not treating a broker as an agent of the insurance purchaser." Robert E. Keeton & Alan I. Widiss, Insurance Law: A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices 2.5, at 83-84 (1988). loan broker. A person who is in the business oflending money, usu. to an individual, and taking as security an assignment of wages or a security interest in the debtor's personal property. merchandise broker. One who negotiates the sale of merchandise without possessing it . A merchandise broker is an agent with very limited powers. money broker. A broker who negotiates the lending or raising of money for others. mortgage broker. An individual or organization that markets mortgage loans and brings lenders and 220 borrowers together. A mortgage broker does not originate or service mortgage loans. [Cases: Brokers C:::2.] note broker. A broker who negotiates the discount or sale of commercial paper. real-estate broker. A broker who negotiates contracts of sale and other agreements (such as mortgages or leases) between buyers and sellers of real property . Real-estate brokers must be licensed in the states where they conduct business. [Cases: Brokers 3.J registered broker. A broker registered or required to be registered under the Securities Exchange Act of 1934. [Cases: Securities Regulation (;:::::;40.12.] responsible broker-dealer. A broker-dealer who communicates bids or offers on the floor of a stock exchange at the designated location for trading in a reported security or who, in an off-exchange transac tion, communicates the bid or offer as either a princi pal or an agent, for its own or another's account. SEC Rule llAcI-l(a)(21) (17 CFR 240.11Acl-l(a)(21. securities broker. A broker employed to buy or sell securities for a customer, as opposed to a securities dealer, who trades as a principal before selling the securities to a customer. See DEALER (2). brokerage. (15c) 1. The business or office of a broker <a profitable stock brokerage>. [Cases: Brokers 2. A broker's fee <collect the brokerage after the house sells>. [Cases: Brokers (;:='239.] brokerage contract. An agency agreement employing a broker to make contracts in the name of and on behalf of the principal and for which the broker receives a commission. [Cases: Brokers 40.] broker-agent. See BROKER. brokerage-run dividend-reinvestment plan. See DIVI- DEND-REINVESTMENT PLAN. broker call loan. See call loan under LOAN. broker-dealer. See BROKER. broker for sale. See BROKER. broker's broker. See BROKER. broker's loan statement. Property. A document that details the costs of and deductions from a loan negoti ated by a real-estate or mortgage broker on behalf of a borrower . Deductions may be made for commissions and other costs. The borrower usu. signs the statement and retains a copy. The statement may be required by law. See Cal. Bus. & Prof. Code 10240 (West 2008). Cf. CLOSING STATEMENT (2). broker's note. See NOTE (3). brothel. (16c) A building or business where prostitutes ply their trade; a whorehouse. Also termed house of ill fame. See DISORDERLY HOUSE (2). [Cases: Disorderly House 1.] brother. (bef. 12c) A male who has one parent or both parents in common with another person. 221 brother-german. A full brother; the son of both of one's parents. See GERMAN. consanguine brother (kahn-sang-gwin or bn-san gwin). Civil law. A brother who has the same father, but a different mother. half brother. A brother who has the same father or the same mother, but not both. stepbrother. The son of one's stepparent. uterine brother (yoo-t;lr-in). Civil law. A brother who has the same mother, but a different father. brother-in-law. (14c) The brother of one's spouse or the husband of one's sister . The husband of one's spouse's sister is also sometimes considered a brother-in-law. PI. brothers- in-law. brother-sister corporation. See sister corporation under CORPORATION. brownfield site. An abandoned, idled, or underused industrial or commercial site that is difficult to expand or redevelop because of environmental contamination. Cf. GREENFIELD SITE (1). [Cases: Environmental Law C==>439.] Brussels Act. Copyright. A 1948 revision of the Berne Convention mandating the life-plus-50-years copyright term as a minimum standard, extending the moral rights of attribution and integrity in most member countries to the full copyright term, extending the broadcast right to television, strengthening protection of several forms of copyright protection, and extending some protection to industrial designs. Brussels Convention. See BRUSSELS SATELLITE CONVEN TION. Brussels Satellite Convention. Copyright. A 1974 treaty standardizing the regulation of broadcasting and cable retransmission using satellites . Since the Convention addresses regulation of the signal rather than copyright or neighboring rights, what is transmitted is protected even if the content is not protected by any intellectual property right. The U.S. ratified the Brussels Satellite Convention in 1984. -Also termed Brussels Conven tion; Convention Relating to the Distribution of Pro gram-Carrying Signals Transmitted by Satellite. Bruton error (broot-;ln). (1968) The violation of a criminal defendant's constitutional right of con frontation by admitting into evidence a nontestify ing codefendant's confession that implicates both of them, where the statement is not admissible against the defendant under any exception to the hearsay rule . The error is not cured by a limiting instruction to the jury to consider the confession only against the one who made it, because of the high risk that the jury will disregard the instruction. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968). [Cases: Criminal Law C==>662.l0,662.11.] brutum fulmen (broo-t;lm fal-men or -m;ln). [Latin "inert thunder"] 1. An empty noise; an empty threat; something ineffectual. 2. A judgment void on its face; budget one that is, in legal effect, no judgment at all. [Cases: Judgment C==>27, 485, 486.] Bryan treaties. Int'llaw. Any of 48 treaties designed to avert war by requiring the signatories to submit disputes of any kind to standing peace commissions . The first of these treaties, named after Secretary of State William Jennings Bryan, was signed between the United States and Great Britain in 1914. b.s. abbr. See bancus superior under BANCUS. BSA. abbr. BUSINESS SOFTWARE ALLIANCE. BSD license. See LICENSE. BSD-style license. See BSD license under LICENSE. BTA. abbr. Board of Tax Appeals. See TAX COURT, U.S. BTS. abbr. 1. BORDER AND TRANSPORTATION SAFETY DIRECTORATE. 2. BUREAU OF TRANSPORTATION STA TISTICS. bubble. (l8c) Slang. A dishonest or insubstantial business project, generally founded on a fictitious or exaggerated prospectus, designed to ensnare unwary investors. Bubble Act. An English statute passed in 1720 to prevent corporate fraud. bucketing. Securities. The illegal practice of receiving an order to buy or sell stock but not immediately per forming the order . The perpetrator profits by execut ing the order when the stock market goes down or up, respectively, but confirming the order to the customer at the original price. bucket shop. Securities. An establishment that is nomi nally engaged in stock-exchange transactions or some similar business, but in fact engages in registering bets or wagers, usu. for small amounts, on the rise or fall of the prices of stocks and commodities . A bucket shop uses the terms and outward forms of the exchanges, but differs from exchanges because there is no delivery of - and no expectation or intention to deliver or receive - the securities or commodities nominally exchanged. Buckley Amendment. See FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT. Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purpose of Patent Procedures. Patents. An international treaty promulgating standards and procedures for deposit ing microorganisms and requiring member countries to recognize a deposit of biological material made in any depository approved by the World Intellectual Property Organization . The purpose of the Budapest Treaty is to allow inventors to satisfy the enablement requirement of national patent laws by depositing in a convenient depository a sample of a microorganism to be patented. The U.S. is a signatory to the Budapest Treaty. budget. (15c) 1. A statement of an organization's esti mated revenues and expenses for a specified period, usu. a year. 2. A sum of money allocated to a particular purpose or project. budget bill balanced budget. A budget in which a period's total pro jected income equals the total estimated expenses. budget bill. See BILL (3). Buenos Aires Convention. Copyright. A 1910 treaty reg ulating copyright reciprocity among Latin American nations and the United States . Under this agreement, the phrase "all rights reserved" guaranteed copyright protection in member nations. Since all the Conven tion's signatories are now signatories to more recent and broader international-copyright treaties, this Con vention now has little if any practical effect. buffer zone. (1908) Land-use planning. An area ofland separating two different zones or areas to help each blend more easily with the other, such as a strip of land between industrial and residential areas. [Cases: Zoning and Planning C='31, 272.] bug. 1. A flaw or mistake in a computer program that results in an error or undesired result. 2. The printed mark of a labor union. buggery, n. (14c) Sodomy or bestiality. See SODOMY. [Cases: SodomyC='1.]- bugger, vb. -bugger, n. bugging, n. (1955) A form of electronic surveillance by which conversations may be electronically intercepted, overheard, or recorded, usu. covertly; eavesdropping by electronic means. See EAVESDROPPING; WIRETAPPING. [Cases: Telecommunications C=' 1435.] building. A structure with walls and a roof, esp. a per manent structure . For purposes of some criminal statutes, such as burglary and arson, the term building may include such things as motor vehicles and water craft. accessory building. A building separate from but complementing the main structure on a lot, such as a garage . The question whether a structure is an "accessory building" is often litigated in zoning disputes. [Cases: Zoning and Planning C='307.] building-and-Ioan association. (1857) A quasi-public corporation that accumulates funds through member contributions and lends money to

(1857) A quasi-public corporation that accumulates funds through member contributions and lends money to the members buying or building homes. Cf. SAVINGS-AND-LOAN ASSOCIA TION. [Cases: Building and Loan Associations C=' 1, 24-37.] building code. A law or regulation setting forth stan dards for the construction, maintenance, occupancy, use, or appearance of buildings and dwelling units. - Also termed (for dwelling units) housing code. Cf. BUILDING RESTRICTIONS. [Cases: Health C='392.] building lease. See LEASE. building line. (1885) A boundary drawn along a curb or the edge of a municipality's sidewalks to establish how far a building must be set away from the street to maintain a uniform appearance . This is often referred to as a setback requirement. [Cases: Zoning and Planning C='64, 252.] building loan. See LOAN. 222 building permit. A license granted by a government agency (esp. a municipality) for the construction of a new building or the substantial alteration of an existing structure. [Cases: Zoning and Planning C='385.] building restrictions. Regulations governing the type of structures that can be constructed on certain property. The restrictions are usu. listed in zoning ordinances or restrictive covenants in deeds. Cf. BUILDING CODE; restrictive covenant under COVENANT (4). Cf. BUILDING CODE. [Cases: Zoning and Planning C='62, 251.] build-to-print contract. See CONTRACT. built-in obsolescence. See planned obsolescence under OBSOLESCENCE. bulk, adj. (Of goods) not divided into parts <a bulk shipment of grain>. bulk discount. See volume discount under DISCOUNT. bulk mortgage. See MORTGAGE. bulk sale. (1902) A sale of a large quantity of inventory outside the ordinary course of the seller's business . Bulk sales are regulated by Article 6 of the UCC, which is designed to prevent sellers from defrauding unse cured creditors by making these sales and then dissi pating the sale proceeds. -Also termed bulk transfer. [Cases: Fraudulent Conveyances C='47.] bulk-sales law. A statute regulating the transfer of business assets, usu. by requiring public notice of any sale to prevent business owners from disposing of assets to the detriment of creditors and suppliers. See UCC 6-101 et seq. See BULK SALE. [Cases: Fraudulent Con veyances C='47.] bulk transfer. See BULK SALE. bulky goods. See GOODS. bull. Eccles. law. 1. A document issued by a pope, so called from the leaden seal (bulla) attached to it. 2. A seal attached to an official document, esp. a papal edict. bulla (buul-d or bal-d). [Law Latin] A metal or wax papal seal or document. bullet ballot. See bullet vote under VOTE (1). bulletin des lois (buul-d-tan day lwah). French law. The publication that provides official notice of the text and effective date of a law or decree. bullet vote. See VOTE (1). bullion (buul-Ydn). An uncoined solid mass of gold or silver. bullion fund. Public money used by a mint to purchase precious metals for coinage and to pay bullion deposi tors. bull market. See MARKET. bullpen. (1809) Slang. 1. An area in a prison where inmates are kept in close confinement. 2. A detention cell where prisoners are held until they are brought into court. bumbailiff. See BAILIFF. 223 bumbershoot insurance. See INSURANCE. bum-marriage doctrine. Evidence. The principle that the marital-witness privilege may not be asserted by a partner in a marriage that is in fact moribund, though legally valid. See marital privilege (2) under PRIVILEGE (3). [Cases: Witnesses C=>Sl.j bumping. (1937) 1. Displacement of a junior employee's position by a senior employee. 2. An airline-industry practice of denying seats to passengers because of over booking. [Cases: Carriers C-~'236(1.2).l bunco. (I872) A swindling game or scheme; any trick or ploy calculated to win a person's confidence in an attempt to deceive that person. Also spelled bunko. -Also termed bunco steering. Cf. CONFIDENCE GAME. [Cases: False Pretenses C-=16.] bunco steerer. 1. One who uses tricks, schemes, or other illegal devices to obtain money or property from others; a swindler. 2. One who acts as a decoy in bunco. Also termed bunco operator; bunco man. See CONFIDENCE MAN. bundle. See RECORD (4). bundle, vb. To sell related products or services in one transaction at an all-inclusive price. bundled software. Software that is sold together with hardware, other software, or services at a single price. bundle of rights. See PROPERTY (1). bundling, n. In the computer industry, the practice of charging a single price for a combination of hardware, software, or services . Personal computers are typi cally sold with bundled software, such as an operating system and applications software that are preinstalled on the hardware. bunkhouse rule. The principle that an employee's injury suffered while living in an employer's housing is com pensable even if the injury occurs during off-duty hours. lCases: Workers' Compensation C=>709.j burden, n. (bet'. 12c) 1. A duty or responsibility <the seller's burden to insure the shipped goods>. 2. Some thing that hinders or oppresses <a burden on inter state commerce>. 3. A restriction on the use or value of land; an encumbrance <the easement created a burden on the estate>. 4. Scots law. An encumbrance, restric tion, or obligation imposed on a person or on property <the burden of curatorship> <a servitude is a burden on land> . When the burden is on real property, it is called a real burden. -burden, vb. -burdeusome, adj. undue burden. A substantial and unjust obstacle to the performance of a duty or enjoyment of a right . For example, excessive discovery requests place an undue burden on the person who must produce the data requested. And a state law requiring a particu lar kind of mud flap on trucks may place an undue burden on the flow of interstate commerce. burden of allegation. (1862) A party's duty to plead a matter in order for that matter to be heard in the lawsuit. Also termed burden of pleading. burden-shifting analysis burden of going forward with evidence. See BURDEN OF PRODUCTION. burden of persuasion. (1923) A party's duty to convince the fact-finder to view the facts in a way that favors that party . In civil cases, the plaintiff's burden is usu. "by a preponderance of the evidence," while in criminal cases the prosecution's burden is beyond a reasonable doubt." -Also termed persuasion burden; risk of non persuasion; risk ofjury doubt. Also loosely termed burden of proof. [Cases: Evidence C-=90-98.j burden of pleading. See BURDEN OF ALLEGATION. burden of production. (1893) A party's duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as a summary judgment or a directed verdict. Also termed burden of going forward with evidence; burden of producing evidence; production burden; degree of proof. [Cases: Evidence C=>90-98.] burden of proof. (I8c) 1. A party's duty to prove a disputed assertion or charge. _ The burden of proof includes both the burden of persuasion and the burden of production. -Also termed onus probandi. See SHIFTING THE BURDEN OF PROOF. 2. Loosely, BURDEN OF PERSUASION. [Cases: Evidence C::>90.j "In the past the term 'burden of proof' has been used in two different senses. (1) The burden of going forward with the eVidence. The party having this burden must introduce some evidence if he wishes to get a certain issue into the case. If he introduces enough evidence to require consid eration of this issue, this burden has been met. (2) Burden of proof in the sense of carrying the risk of non persuasion. The one who has this burden stands to lose if his evidence fails to convince the jury or the judge in a nonjury trial. The present trend is to use the term 'burden of proof' only with this second meaning ." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 78 (3d ed. 1982). 'The expression 'burden of proof' is tricky because it has been used by courts and writers to mean various things. Strictly speaking, burden of proof denotes the duty of establishing by a fair preponderance of the eVidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law. Burden of proof is sometimes used in a secondary sense to mean the burden of going forward with the evidence. In this sense it is sometimes said that a party has the burden of countering with eVidence a prima facie case made against that party." William D. Hawkland, Uniform CommerCial Code Series 2A-516:08 (1984). middle burden of proof. A party's duty to prove a fact by dear and convincing evidence . This standard lies between the preponderance-of-the-evidence standard and the beyond-a-reasonable-doubt standard. See clear and convincing evidence under EVIDENCE. [Cases: Evidence C-=S96.] burden-shifting analysis. A court's scrutiny of a com plainant's evidence to determine whether it is suffi cient to require the opposing party to present contrary evidence . Burden shifting is most commonly applied in discrimination cases. If the plaintiff presents suf ficient evidence of discrimination, the burden shifts to the defendant to show a legitimate, nondiscrimina tory basis for its actions. The precise components of the Bureau of Alcohol, Tobacco, and Firearms analysis vary depending on the context of the claim. Ct~ MCDONNELL DOUGLAS TEST. [Cases: Civil Rights 1536; Jury Cr~33(5.l5).l Bureau of Alcohol, Tobacco, and Firearms. I. See ALCOHOL AND TOBACCO TAX AND TRADE BUREAU. 2. See BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES. Bureau of Alcohol, Tobacco, Firearms, and Explosives. A unit in the u.s. Department of Homeland Security responsible for enforcing laws relating to firearms and explosives and laws relating to the production, taxation, and distribution of alcohol and tobacco products. - Formerly called the Bureau of Alcohol, Tobacco, and Firearms and a part of the Department of the Treasury, its law-enforcement functions were transferred in the Homeland Security Act of 2002. Pub. 1. 107-296. Abbr. ATF. Cf. ALCOHOL AND TOBACCO TAX AND TRADE BUREAU. [Cases: Internal Revenue (;:::::'4311, 4314.] Bureau of Arms Control. A unit in the U.S. Department of State responsible for directing U.S. participation in multilateral arms-control negotiations and in the Orga nization for the Prohibition of Chemical Weapons. - It also monitors developments relating to arms control and weapons development. Bureau of Consular Affairs. A unit in the U.S. Depart ment of State responsible for protecting U.S. citizens and interests abroad. _ Through its Office of Passport Services it issues over 7 million passports each year. Bureau of Customs. See UNITED STATES CUSTOMS SERVICE. Bureau of Democracy, Human Rights, and Labor. A unit in the U.S. Department of State responsible for developing policy on human rights and freedoms and for preparing the annual Country Reports on Human Rights Practices. Abbr. DRL. Bureau of Diplomatic Security. A unit of the U.S. Department of State responsible for protecting the Sec retary of State and domestic and foreign dignitaries, for investigating criminal activities such as identity-docu ment fraud involving U.S. passports and visas, and for developing security programs protecting diplomats and American interests worldwide. -The Bureau employs special agents (members of the U.S. Foreign Service) who are located throughout the United States and in scores of embassies worldwide. It also operates the Dip lomatic Courier Service and supervises the transpor tation of classified documents and materials. Abbr. DS. Also termed Diplomatic Security Service. Bureau of Economic Analysis. A unit in the U.S. Depart ment of Commerce responsible for compiling and ana lyzing data about the U.S. economy. -It is a part of the Department's Economics and Statistics Administra tion. Abbr. BEA. Bureau of Economic and Business Affairs. A unit in the U.S. Department of State responsible for developing policy on international matters relating to food, com munications, energy, air transportation, and maritime affairs. Abbr. EB. 224 Bureau of Engraving and Printing. A unit in the U.S. Department of the Treasury responsible for design ing and printing the nation's paper currency, postage stamps, Treasury securities, and other documents. - Abbr. BEP. [Cases: United States Bureau of Export

Treasury securities, and other documents. - Abbr. BEP. [Cases: United States Bureau of Export Administration. The former name of a bureau in the U.S. Department of Commerce that issues export licenses and enforces export-control laws. -The unit's name was changed in 2002 to the Bureau of Industry and Security. -Abbr. BXA. Bureau of Indian Affairs. A unit in the U.S. Depart ment of the Interior responsible for helping Indian and Alaskan native people manage their affairs under the trust relationship with the U.S., and for promoting programs for their benefit. _ Originally created as part of the War Department in 1824, the Bureau was trans ferred to the Interior Department in 1849. Abbr. BIA. [Cases: IndiansC:'l13-118.J Bureau of Industry and Security. A unit in the U.S. Department of Commerce responsible for issuing export licenses and enforcing export-control laws. _ The Bureau is charged with furthering U.S. l1ational~ security, foreign-policy, and economic interests while furthering the growth of U.S. exports. It was named the Bureau of Export Administration until 2002. Abbr. BIS. Bureau ofIntelligence and Research. A unit in the U.S. Department of State responsible for coordinating activ ities of U.S. intelligence agencies to ensure consistency with u.s. foreign policy. _ The Bureau also monitors foreign public and media opinions. Abbr. INR. Bureau of International Labor Affairs. A unit in the U.S. Department of Labor responsible for helping formulate policy on international matters that affect American workers. -For example, the Bureau compiles and publishes worldwide data on child-labor practices and on foreign labor markets and programs. It also studies the labor consequences of immigration pro posals and legislation. Bureau of International Narcotics and Law Enforce ment. A unit in the U.S. Department of State responsible for coordinating the narcotics and anticrime~assistance activities of the Department and for adVising the Presi~ dent, the Secretary of State, and others on international narcotics matters. -Abbr. INL. Bureau of International Organization Affairs. A unit in the U.S. Department of State responsible for coor dinating U.S. diplomatic participation in the United Nations and other international organizations and con ferences. Abbr. 10. Bureau of Labor Statistics. An independent agency in the U.S. Department of Labor responsible for compiling and analyzing statistical information on employment and the economy. -The Bureau reports on employ ment, unemployment, consumer and producer prices, consumer expenditures, import and export prices, wages and employee benefits, productivity and tech- 225 nological change, employment projections, and occu pational illness and injury. Abbr. BLS. Bureau of Land Management. The unit within the u.s. Department of the Interior responsible for managing the national-resource lands (some 450 million acres) and their resources and for administering the mineral resources connected with acquired lands and the sub merged lands of the Outer Continental Shelf (OCS) . The bureau was established on July 16, 1946, by con solidating the General Land Office (established in 1812) and the Grazing Service (established in 1934). See 35 USCA 1731 et seq. [Cases: Public Lands ~~94.] Bureau of Nonproliferation. A unit in the u.s. Depart ment of State responsible for leading efforts to prevent the proliferation of weapons of mass destruction, delivery systems, and advanced conventional arms. - Also termed Nonproliferation Bureau. Bureau of Oceans and International Environmental and Scientific Affairs. A unit in the U.S. Department of State responsible for coordinating U.S. ocean, envi ronment, and health policies. -Abbr. OES. Bureau of Political-Military Affairs. A unit in the U.S. Department of State responsible for analYZing defense related policy issues, managing security-assistance funds, and coordinating peace-keeping and humani tarian operations. Abbr. PM. -Also termed Politi cal-Military Affairs Bureau. Bureau of Population. Refugees, and Migration. A unit in the U.S. Department of State responsible for formulating policy and administering U.S. assistance and admissions programs for refugees and others. - Abbr.PRM. Bureau of Prisons. The unit in the u.s. Department ofJustice responsible for operating the federal prison system . It oversees all federal penal and correc tional facilities, assists states and local governments in improving their correctional facilities, and provides notice of prisoner releases. 18 USCA 4041 et seq. See NATIONAL INSTITUTE OF CORRECTIONS. -Abbr. BOP. Bureau of Redamation. A unit in the U.S. Department of the Interior that built dams in 17 western states and is now responsible for selling hydroelectric power from those dams and water from the reservoirs. -Among the 600 dams constructed are Hoover Dam and Grand Coulee Dam. [Cases: Waters and Water Courses C= 222.] Bureau of the Budget. See OFFICE OF MANAGEMENT AND BUDGET. Bureau of the Census. A unit in the U.S. Department of Commerce responsible for conducting and publishing the census required by the U.S. Constitution to be taken every ten years . Established in 1902, the Bureau also conducts other population surveys and estimates as required by law. It is a part of the Department's Eco nomics and Statistics Administration. -Also termed Census Bureau. Census 1.] burglary Bureau ofthe Mint. See UNITED STATES MINT. Bureau of the Public Debt. A unit in the u.s. Depart ment of the Treasury responsible for issuing and redeeming Treasury bills, notes, and bonds, and for managing the U.S. Savings Bond Program. Bureau of Transportation Statistics. A unit in the U.S. Department of Transportation responsible for compil ing and publishing transportation statistics. -Abbr. BTS. Bureau Veritas. See VERITAS. Bureaux Internationaux Reunis pour la Protection de la Propriete Intellectuelle. See INTERNATIONAL BUREAU FOR THE PROTECTION OF INTELLECTUAL PROPERTY. Burford abstention. See ABSTENTION. burgage (b3r-gij). Rist. 1. A type of socage tenure in which tenants paid annual rents to the lord of the borough. See SOCAGE. 2. Scots law. The tenure by which a burgh held its land of the king, the service due being watching and warding. See WATCH AND WARD. -Also termed burgage tenure. burgator (b;r-gay-t;r). Rist. A burglar; a person who breaks into a house or an enclosed space. burgess (b3r-jis). Rist. 1. An inhabitant or freeman of a borough or town. 2. A magistrate of a borough. 3. A person entitled to vote at elections. 4. A representative of a borough or town in Parliament. "[Burgesses] are properly Men of Trade, or the Inhabit ants of a Borow or Walled Town; yet we usually apply this name to the Magistrates of such a Town, as the Bailiff and Burgesses of Leominster. But we do now usually call those Burgesses who serve in Parliament, for any such Borow or Corporation." Thomas Blount, NamaLexicon: A Law Dictionary (1670). burgh English (barg ing-glish). See BOROUGH ENGLISH. burgh Engloys (barg ing-gloiz). See BOROUGH ENGLISH. burglar, n. (16c) One who commits burglary. burglarious (b;r-glair-ee-;s), adj. Of or relating to burglary <burglarious intent>. - burglariously, adv. burglarize, vb. To commit a burglary <the defendant burglarized three houses>. -Also termed (esp. in BrE) burgle. burglary, n. (16c) 1. The common-law offense of breaking and entering another's dwelling at night with the intent to commit a felony. 2. The modern statutory offense of breaking and entering any building -not just a dwelling, and not only at night -with the intent to commit a felony . Some statutes make petit larceny an alternative to a felony for purposes of proving bur glariOUS intent. Also termed (in sense 2) breaking and statutory burglary. Cf. ROBBERY. lCases: Burglary generic burglary. An unlawful or unprivileged entry into, or remaining in, a building or structure with intent to commit a crime. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 (1990). burglary tool. (often pI.) (1903) An implement designed to help a person commit a burglary . In many juris dictions, it is illegal to possess such a tool if the pos sessor intends to commit a burglary. lCases: Burglary C='12.] burgle. See BURGLARIZE. burial insurance. See INSURANCE. buried-facts doctrine. Securities. The rule that a proxy statement disclosure is inadequate if a reasonable share holder could fail to understand the risks presented by facts scattered throughout the proxy . In applying this rule, a court will consider a securities disclosure to be farse and misleading if its overall significance is obscured because material information is buried in footnotes, appendixes, and the like. [Cases: Securities Regulation C='49.21.] burking, n. The crime of murdering someone, usu. by smothering, for the purpose of selling the corpse . This term arose from the Scottish murder team of Burke and Hare, whose practice in 1828 of suffocating their victims while leaving few visible marks made the corpses more salable to medical schools. -burke, vb. burlaw. See BYRLAW. burlawcourt. See BYRLAW COURT. burnt-records act. A statute that enables a property owner to quiet title if the public records for the property have been lost or destroyed in a disaster. [Cases: Records C='18.] bursting-bubble theory. (1941) Evidence. The principle that a presumption disappears once the presumed facts have been contradicted by credible evidence. [Cases: Evidence 89.] Bush doctrine. The policy announced by President George W. Bush after the September 11, 2001 attacks on the World Trade Center and the Pentagon, to the effect that nations harboring terrorists will be treated as terrorists themselves and may be subject to a first strike strategy. Cf. SOVEREIGN EQUALITY. business. 1. A commercial enterprise carried on for profit; a particular occupation or employment habitu ally engaged in for livelihood or gain. 2. Commercial enterprises <business and academia often have congru ent aims>. 3. Commercial transactions <the company has never done business in Louisiana>. See DOING BUSINESS. 4. By extension, transactions or matters of a noncommercial nature <the courts' criminal business occasionally overshadows its civil business>. 5. Parlia mentary law. The matters that come before a delibera tive assembly for its consideration and action, or for its information with a view to possible action in the future . In senses 2, 3, and 4, the word is used in a collective meaning. new business. An item of business introduced from the floor or taken from the table without haVing been scheduled for consideration. See TAKE FROM THE TABLE. old business. See unfinished business. unfinished business. A general order carried over from an earlier meeting in the same session because the meeting adjourned before or while conSidering it. 1be term "unfinished business" is preferred to "old business," which may incorrectly imply renewed con sideration of business that has been finally disposed of. See general order under ORDER (4); SESSION (2). unfinished business and general orders. A common category on an agenda. See unfinished business; general order under ORDER (4). business agent. 1. See managing agent under AGENT. 2. A labor-union representative selected to deal with employers. business angel. See angel investor under INVESTOR. business appraiser. See APPRAISER. business associations. See BUSINESS ENTERPRISES. business combination. 1. The consolidation, for accounting purposes, of a corporation and one or more incorporated or unincorporated businesses. 2. The two entities considered as one entity for account ing purposes. business compulsion. See economic duress under DURESS. business-continuation agreement. See AGREEMENT. business corporation. See CORPORATION. business court. See COURT. business cyde. The recurrent expansion and contraction of economic activity. business day. See DAY. business enterprises. The field of law dealing with various forms of business, such as corporations, lim ited-liability companies, and partnerships. Also termed business entities; business associations; enter prise organizations. business entry. A writing admissible under the business records exception to the hearsay rule. See BUSINESS RECORDS EXCEPTION. [Cases: Criminal Law Evidence business-entry rnle. See BUSINESS-RECORDS EXCEP- TION. business expense. See EXPENSE. business form. See BLANK FORM. business gain. 1. See GAIN (2). 2. See GAIN (3). business guest. See BUSINESS VISITOR (1). business homestead. See HOMESTEAD. business-interruption insurance. See INSURANCE. business invitee. 1. See INVITEE. 2. See BUSINESS VISITOR (1). business-judgment rule. (1946) Corporations. The presumption that in making business decisions not involving direct self-interest or self

1946) Corporations. The presumption that in making business decisions not involving direct self-interest or self-dealing, corporate directors act on an informed basis, in good faith, and in the honest belief that their actions are in the corpo ration's best interest. The rule shields directors and 227 officers from liability for unprofitable or harmful cor porate transactions if the transactions were made in good faith, with due care, and within the directors' or officers' authority. [Cases: Corporations C=> 310(1).] "The business judgment rule is a presumption protecting conduct by directors that can be attributed to any rational business purpose. In order to plead and prove a claim, a plaintiff must plead and prove facts overcoming this presumption. Where the presumption is overcome, direc tors bear the burden of proving the fairness of the chal lenged conduct. The difference between these two levels of judicial scrutiny - a presumption in favor of directors that protects conduct that is rational, versus a burden of proving fairness frequently is outcome determinative." 1 Dennis 1. Block et aI., The Business judgment Rule 18-19 (5th ed. 1998). business loss. See ordinary loss under LOSS. business meeting. See MEETING. business method. Patents. A way or an aspect of a way in which a commercial enterprise is operated. business-method exception. Intellectual property. The traditional doctrine that business methods are not pro tected by intellectual-property laws . Early caselaw established that "pure methods of doing business" were unpatentable. But in 1998, the Federal Circuit held in State St. Bank & Trust Co. v. Signature Fin. Group (149 F.3d 1368) that business methods are not per se unpatentable if they otherwise meet the requirements for a valid patent. The European Patent Convention expressly excludes business methods from patent pro tection. [Cases: Patents C::::-7.14.] business-method patent. See PATENT (3). Business Methods Patent Initiative. A U.S. Patent and Trademark Office program that added a second level to business-method-patent reviews for the purpose of reducing the number of business-method patents issued . The PTa created the initiative in response to complaints that examiners improperly approved many business-method patents. After an examiner approves the application and before a business-method patent is granted, a second examiner must completely review the application and either reject the application or affirm the issuance of the patent. business opportunity. The chance to buy or lease either a going business, or a product, service, or equipment that will enable the buyer or lessee to profit. [Cases: Antitrust and Trade Regulation C=>271.J business-partner insurance. See partnership insurance under INSURANCE. business plan. (1890) A written proposal explaining a new business or business idea and usu. covering finan cial, marketing, and operational plans. business-purpose doctrine. (1939) Tax. The principle that a transaction must serve a bona fide business purpose (i.e., not just for tax avoidance) to qualify for beneficial tax treatment. [Cases: Internal Revenue C::,-:> 3071, 3315, 3396.1 business record. A report, memorandum, or other record made usu. in the ordinary course of business. but-for materiality It may be ordered produced as part of discovery in a lawsuit. business-records exception. (1939) Evidence. A hearsay exception allOWing business records (such as reports or memoranda) to be admitted into evidence if they were prepared in the ordinary course of business . If there is good reason to doubt a record's reliability (e.g., the record was prepared in anticipation of litigation), the exception will not apply. Fed. R. Evid. 803(6). -Also termed bUSiness-entry rule. [Cases: Criminal Law C=> 436; Evidence C=> 351.] business-riskexdusion. See EXCLUSION (3). Business Software Alliance. Copyright. An international trade organization representing leading software and e-commerce developers, formed to educate govern ments and the public about software issues and to fight software piracy and Internet theft. -Abbr. BSA. business-to-business, adj. Of or relating to commerce between businesses, as distingUished from commerce between a business and consumers. - Abbr. B2B. Cf. BUSINESS-TO-CONSUMER. business-to-business e-commerce. Electronic commerce between businesses over the Internet. business-to-consumer, adj. Of or relating to commerce between a business and consumers, as distinguished from commerce between businesses. -Abbr. B2C. Cf. BUSINESS-TO-BUSINESS. business-to-consumer e-commerce. Electronic commerce between a business and consumers over the Internet. business tort. See TORT. business transaction. An action that affects the actor's financial or economic interests, including the making of a contract. business trust. See TRUST (4). business visitor. 1. Torts. A person who is invited or permitted to enter or remain on another's land for a purpose directly or indirectly connected with the landowner's or possessor's business dealings. Also termed business invitee; business guest. See INVITEE. [Cases: Negligence C=> 1076.] 2. Immigration law. A non-U.S. citizen who has a B-1 visa, which allows the person to be employed while in the United States. bust-up merger. See MERGER. but-for cause. See CAUSE (1). but-for materiality. Patents. In an analysis of allegedly inequitable conduct, a test for determining the materi ality of withheld information by assessing whether the withheld information, if disclosed, would have resulted in a finding of unpatentability . Under this test, the issue is whether the patent would have issued if not for the misconduct of the applicant. By contrast, under the subjective but-for test, the issue is whether the misrep resentation caused the examiner to issue the patent. Although both tests have been applied by the courts, the Federal Circuit has rejected the but-for materiality test in favor of the materiality test codified in 37 CFR 1.56. -Also termed objective but-for test. Cf. REASON ABLE EXAMINER TEST. [Cases: Patents C'":::>97.] but-for test. (1925) Tort & criminal law. The doctrine that causation exists only when the result would not have occurred without the party's conduct. Also termed (in criminal law) had-not test. See but-for cause under CAUSE Cf. SUBSTANTIAL-CAUSE TEST. [Cases: Criminal Law Negligence butlerage. Hist. A duty on wine imported into England, payable to the royal butler. Cf. PRISAGE. but see. See SED VIDE. but so insane as not to be responsible. See GUILTY BUT MENTALLY ILL. buttals (bat-alz). Archaic. See ABUTTALS. butterfly ballot. See BALLOT. butts and bounds. See METES AND BOUNDS. buy. See PURCHASE (1). buy-and-sell agreement. See BUY-SELL AGREEMENT. buy-back clause. 1. Contracts. A provision that requires a manufacturer or franchiser to buy back inventory and equipment if the distributor or franchisee's contract is terminated prematurely. 2. Contracts. A clause allowing the seller of property the right or opportunity to repur chase the property under stated conditions. 3. Insur ance. An insurance-policy clause that provides for the reinstatement of coverage that the insurer excludes or cancels if the insured meets certain conditions . For instance, buy-back clauses are often used to reinstate some of the c~verage taken away under pollution-exclu sion clauses. [Cases: Contracts (;::0202(1).] buy-down, n. Money paid by the buyer of a house to reduce the mortgage-interest payments. buyer. (12c) One who makes a purchase. See PUR CHASER. buyer in ordinary course of business. (1915) A person who in good faith and without knowledge that the sale violates a third party's ownership rights or security interest in the goods -buys from a person regularly engaged in the business of selling goods of that kind . Pawnbrokers are excluded from the defi nition. UCC 1-201(9), -Also termed buyer in due course. [Cases: Sales (;::0234.] qualified institutional buyer. Securities. An institution with more than $100 million in invested assets. buyer's market. See MARKET. buying in, n. (17c) The purchase of property by the original owner or an interested party at an auction or foreclosure sale. buy in, vb. buying on margin. See MARGIN TRANSACTION. buying syndicate. See SYNDICATE. buy order. See ORDER (8). buyout, n. The purchase of all or a controlling percent age of the assets or shares of a business. Cf. MERGER (8). -buyout, vb. leveraged buyout. (1975) The purchase of a publicly held corporation's outstanding stock by its manage ment or outside investors, financed mainly with funds borrowed from investment bankers or brokers and usu. secured by the corporation's assets. -Abbr. LBO. [Cases: Corporations (;::0 116.] management buyout. (I976) 1. A buyout of a corpora tion by its own directors and officers. 2. A leveraged buyout of a corporation by an outside entity in which the corporation's management has a material finan cial interest. -Abbr. MBO. See GOING PRIVATE. buy-sell agreement. (1956) 1. An arrangement between owners of a business by which the surviving owners agree to purchase the interest of a withdrawing or deceased owner. Also termed cross-purchase buy-sell agreement. Cf. CONTINUATION AGREEMENT. 2. Corpo rations. A share-transfer restriction that commits the shareholder to sell, and the corporation or other share holders to buy, the shareholder's shares at a fixed price when a specified event occurs. -Also termed buy-and sell agreement. Cf. OPTION AGREEMENT. [Cases: Corpo rations (;::082, 116. ] BVA. abbr. BOARD OF VETERANS' APPEALS. BW. abbr. BID WANTED. BXA. abbr. BUREAU OF EXPORT ADMINISTRATION. by-bidder. At an auction, a person employed by the seller to bid on property for the sole purpose of stimulating bidding by potential genuine buyers; SHILL (2). -Also termed puffer. [Cases: Auctions and Auctioneers 7.] by-bidding. The illegal practice of employing a person to bid at an auction for the sole purpose of stimulat ing bidding on the seller's property. -Also termed puffing. Cf. BIDDING UP; SHILLING (1). [Cases: Auctions and Auctioneers by-election. See ELECTION (3). by God and my country. Hist. A customary reply for a criminal defendant when asked at arraignment, "Culprit, how wilt thou be tried?" bylaw rfr. Danish bye, Old Norse byr, "town"] (14c) 1. Parliamentary law. (usu. pl.) A rule or administrative provision adopted by an organization for its internal governance and its external dealings . Although the bylaws may be an organization's most authoritative governing document, they are subordinate to a charter or articles of incorporation or association or to a con stitution. The "constitution and bylaws" are sometimes a single document. See governing document under DOCUMENT; ARTICLES OF INCORPORATION. Cf. CON STITUTION. [Cases: Associations Condominium Corporations (;::054,113,116.]2. ORDINANCE. Sometimes spelled by-law; byelaw. "Bylaw is now felt to be a compound of the preposition by and law, but originally bywas the Danish by 'town, village' 229 (found in Derby, Whitby, etc.), and the Danish genitive ending is preserved in the other English form byr-Iaw," Otto Jespersen, Growth and Structure of the English Language 7S (9th ed, 1938). bylaw man. Hist. One of the chief men of a town, usu. appointed for some purpose under the town's corpo rate bylaws. by operation oflaw. See OPERATION OF LAW. bypass trust. See TRUST. byrlaw (bir-lah), n. Eng. & Scots Hist. 1. The local custom of a township or district for resolving disputes over boundaries, trespasses, and the use of common lands, as well as farming issues. 2. A particular custom established by the common consent of landholders bystander in a township or district. 3. The area over which a township or district court has jurisdiction. -Also spelled burlaw. byrlaw court. Hist. Scots law. A community assembly that judged minor disputes arising in the community. The assembly members were called byrlawmen or bir leymen. - Also spelled burlaw court. byrthynsak (bar-th.:ln-sak), n. [Anglo-Saxon byrthen "burden" + sacu "lawsuit"] Hist. The theft of a calf or ram that is the most a man can carryon his back. bystander. (16c) One who is present when an event takes place, but who does not become directly involved in it. c c. abbr. (1947) 1. CIRCA. 2. COPYRIGHT. ca. abbr. CIRCA.

47) 1. CIRCA. 2. COPYRIGHT. ca. abbr. CIRCA. CA. abbr. CERTIFICATION AUTHORITY. ca. ad reo abbr. See capias ad respondendum under CAPIAS. cabal (ka-.bal or ka-bahl). (17c) A small group ofpolitical schemers or conspirators . The term is sometimes said to have originated as an acronym from a committee of five ministers ofCharles II, whose surnames began with C, A, B, A, and L (Clifford, Arlington, Bucking ham, Ashley, and Lauderdale). Though colorful, this etymology is false: the term came into English directly from the French cabale "intrigue," which derives ulti mately from Hebrew kabbalah "received lore." cabala (kab-~-la or ka-bahl-a). An esoteric or obscure doctrine. caballeria (kah-bah-ye-ree-ah). [Spanish] Spanish law. An allotment of land in regions formerly conquered by Spain, such as Mexico and the southwestern United States . Originally a Spanish feudal tenure held by a soldier, a caballeria eventually came to refer to an area ofland. It usu. measures 100 by 200 feet in the United States, and between 30 and 200 acres in Mexico and other former Spanish territories. cabinet. (often cap.) (17c) The advisory council to an executive officer, esp. the President. The President's cabinet is a creation of custom and tradition, dating back to the term ofGeorge Washington. 1he U.S. Con stitution alludes to a group of presidential advisers the President "may require the Opinion, in writing, of the principal Officer in each of the executive Depart ments' upon any Subject relating to the Duties oftheir respective Offices" (art. II, 2, c1. 1) but the term cabinet is not specifically mentioned. The cabinet today comprises the heads of the 15 executive departments: the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, the Secretary ofthe Interior, the Secretary of Agriculture, the Secretary ofCommerce, the Secretary ofLabor, the Secretary ofHealth and Human Services, the Secretary of Housing and Urban Development, the Secretary of Transportation, the Secretary ofEnergy, the Secretary ofEducation, the Secretary ofVeterans Affairs, and the Secretary of Homeland Security. Other officials, such as the U.S. ambassador to the United Nations and the director of the Office of Management and the Budget, have been accorded cabinet rank. [Cases: United States inner cabinet. The heads of the departments of State, Treasury, Defense, and Justice . 1his group is so called because in most administrations it tends to be closer to the executive and more influential than the rest of the cabinet (the outer cabinet). kitchen cabinet. An unofficial and informal body of noncabinet advisers who often have more sway with the executive than the real cabinet does . This term was first used derisively in reference to some ofPres i dent Andrew Jackson's advisers, who, because oftheir reputation for unpolished manners, were supposedly not important enough to meet in the formal rooms of the White House. "The term [kitchen cabinet] began to lose its sting after Jackson's time. But because most Presidents do have circles of personal friends, the idea remains. Theodore Roosevelt had his 'tennis cabinet.' Jonathan Daniels referred to Warren Harding's 'poker cabinet.' Herbert Hoover had an exercise-loving 'medicine ball cabinet.' Even governors can play the game. In writing of New York's Alfred Smith, Ed Flynn mentions the 'golfing cabinet,''' William Safire, Satire's New Political Dictionary 389 (1993). Cable and Satellite Directive. See DIRECTIVE ON THE COORDINATION OF CERTAIN RULES CONCERNING COPY RIGHT AND NEIGHBOURING RIGHTS APPLICABLE TO SAT ELLITE BROADCASTING AND CABLE RETRANSMISSION. cabotage (kab-a-tij). Int'llaw. 1. The carrying on oftrade along a country's coast; the transport ofgoods or pas sengers from one port or place to another in the same country . The privilege to carryon this trade is usu. limited to vessels flying the flag of that country. 2. 1he privilege of carrying traffic between two ports in the same country. 3. The right ofa foreign airline to carry passengers and cargo between airports in the same country. "Some writers maintain [that cabotage] should be applied only to maritime navigation; in this context one can distin guish between petit cabotage -transport between ports situated on the same sea (e.g. Bordeaux-Le Havre) -and grand cabotage transport between ports situated on different seas (e.g. Bordeaux-Marseille). However, the term is also properly applied to transport between two inland points on an international river within one State, although the term grand cabotage is sometimes incorrectly applied to transnational transport between the inland ports of different riparian States on the same waterway. River cabotage properly so called is sometimes also referred to as local transport. Finally, the term has also been adopted to describe commercial air transport between airports situated in the same State." Robert C. Lane, "Cabotage," in 1 Encyclopedia ot Public International Law 519--20 (1992). ca'canny strike. See slowdown strike under STRIKE. cacicazgos (kah-see-kahz-gohs). Land held in entail by caciques (leaders of Indian villages) and their descen dants in Spanish America. cadastre (b-das-t~r). A survey and valuation of real estate in a county or region compiled for tax purposes. -Also spelled cadaster. -cadastral, adj. 231 calendar cadena (ka-day-n<l). [Spanish "chain"] Spanish law. A period ofimprisonment; formerly, confinement at hard labor while chained from waist to ankle. cadena perpetua (ka-day-n<l piJf-pet-W<l). Life impris onment. cadena temporal (ka-day-n<l tem-por-ahl). Imprison ment for a term less than life. cadere (kad-<l-ree). [Latin "to fail"] Hist. 1. To end, cease, or fail. _ This term usu. refers to the failure of a writ action. Cadit breve, for example, means "the writ fails." 2. To be changed or turned into. -Cadit assisa in juratum means "the assise is changed into a jury." cadit quaestio (kay-dit kwes-chee-oh). [Latin] Hist. The question falls to the ground; the dispute is over. caduca (k<l-d[y]oo-k<l), n. pl. [Latin "fallen things"] 1. Civil law. Heritable property; property descending to an heir. 2. Roman law. Property forfeited for crime. See LAPSE. 3. Roman law. Property that either was without an heir or could not be taken by the testamentary heir or legatee. _ In many cases, the property would escheat to the state. See ESCHEAT. caducary (ka-d[y]oo-ka-ree), adj. (Of a bequest or estate) subject to, relating to, or by way ofescheat, lapse, or for feiture of property <the statute was intended to waive the rights ofthe caducary heirs>. caduce (k<l-d[y]oos), vb. To take by escheat or lapse <the government caduced the unclaimed mineral royal ties>. caducity (ka-d[y]oo-s<l-tee), n. The lapse of a testamen tary gift <the testator failed to provide a contingency tor the caducity ofthe legacy>. caeteris paribus. See CETERIS PARIBUS. caeteris tacentibus. See CETERIS TACENTIBUS. caeterorum administration. See ADMINISTRATION. c.a.f. Cost, assurance, and freight. - This term is synony mous with C.I.F. [Cases: Sales ~'-::>201(4).] "[IJn a French contract the term 'C.A.F.' does not mean 'Cost and Freight' but has exactly the same meaning as the term 'C.I.F.,' Since it is merely the French equivalent of that term. The 'A' does not stand for 'and' but for 'assurance,' which means insurance." William D. Hawkland, Uniform Commercial Code Series 2-320 (1984). CAFC. abbr. UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT. cafeteria plan. An employee fringe-benefit plan allowing a choice ofbasic benefits up to a certain dollar amount. [Cases: Labor and Employment C=>41l.] cahoots (k<l-hoots). Slang. Partnership, esp. in an illegal act; collusion <the lawyer was in cahoots with her client>. Cairns's Act (kairn-z<lz). Hist. An 1858 statute that expanded the relief available in England's chancery courts to include monetary damages in addition to injunctive relief. -Cairns's Act was superseded by the Judicature Acts of 1873-1875. -Also spelled Cairns' Act. Cf. JUDICATURE ACTS. Calandra rule (b-Ian-dra). The doctrine that a grand jury witness may be compelled to answer ques tions about certain items, even though the items were obtained by the police illegally. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613 (1974). calculated ambiguity. See AMBIGUITY. Caldwell error. See ERROR (2). calefagium (kal-i-fay-jee-<lm), n. Hist. A feudal right to take wood from the King's forest or the lord's estate. calendar, 11. (15c) 1. A systematized ordering of time into years, months, weeks, and days; esp., the Grego rian calendar established by Pope Gregory XIII in 1582 and adopted in Great Britain in 1752. -The Gregorian calendar is used throughout the Western world. [Cases: Time Gregorian calendar. See NEW STYLE. Julian calendar. See OLD STYLE. 2. (i8c) A court's list of civil or criminal cases. See DOCKET (2). [Cases: Criminal Law C=>632(2); Federal Civil Procedure C=> 1991, 1993; Trial (;=9.J court calendar. See COURT CALENDAR. short-cause calendar. A trial calendar on which a short-cause trial may be scheduled for the 10th day after the opposing party is given notice. _ The request for scheduling must include an affidavit that the trial will take no longer than a certain specified period (e.g., an hour). [Cases: Trial special calendar. A calendar marked with court cases that have been specially set for hearing or trial. See special setting under SETTING. [Cases: Trial C=> 13.] trial calendar. See DOCKET (2). 3. A list of bills reported out of a legislative commit tee for consideration by the entire legislature. 4. Par liamentary law. AGENDA. -Also termed calendar of business. action calendar. The list ofbusiness awaiting a deliber ative assembly's vote. Also termed action agenda. consent calendar. A list of business awaiting a delib erative assembly's vote that is not expected to be sub stantially opposed and is therefore scheduled for a vote without debate, or for automatic adoption unless a member objects. Also termed consent agenda; unanimous-consent agenda; unanimous-consent calendar. "An assembly with a large number of routine or noncon troverSial matters on its agenda may find it not only con venient but expeditious to consider these matters under unanimous consent procedure. This gives every member an opportunity to object. At the same time, it gives the presiding officer an opportunity to dispose of a great deal of the agenda confronting the assembly quickly and effi ciently, particularly when it would be most helpful to the assembly to get its job done. This can even be done by taking en bloc action (that is, dispOSing of various items at the same time without taking separate consideration of them) when matters are not controversial or are of minor importance to the assembly, though every member has the right to object." Floyd M. Riddick & Miriam H. Butcher, Riddick's Rules of Procedure 56 (1985). calendar 232 debate calendar. The list ofbusiness that is awaiting a deliberative assembly's vote and that is not on the consent calendar. -Also termed debate agenda. report calendar. The list ofbusiness coming before a deliberative assembly for information only rather than for its vote. _ An item on the report calendar may be the subject of a vote in the future. Also termed report agenda. special-order calendar. The list ofbusiness scheduled as special orders. -Also termed special-order agenda. See special order under ORDER (4). unanimous-consent calendar. See consent calendar. calendar; vb. 1. To place an important event on a calendar, esp. so that the event will be remembered. 2. To place a case on a calendar. calendar call. (1918) A court session in which the judge calls each case awaiting trial, determines its status, and assigns a trial date. calendar day. See DAY. calendar month. See MONTH (1). calendar motion. See MOTION (1). calendar of prisoners. Hist. A list kept by the sheriffs containing the names of all the prisoners in custody alongside notes about each prisoner's present and past convictions. calendar year. See YEAR (1). Calends (kal-;mdz). Roman law. In the ancient Roman calendar, the first day of the month. Also spelled Kal

(kal-;mdz). Roman law. In the ancient Roman calendar, the first day of the month. Also spelled Kalends. ct: IDES; NONES. call, n. (13c) 1. A request, demand, or command, esp. to come or assemble; an invitation or summons. call for the orders ofthe day. Parliamentary law. A demand that the meeting proceed according to its order of business. -Also termed call for the regular order. callfor the regular order. See call for the orders ofthe day. call ofa meeting. Parliamentary law. Formal written notice of a meeting's time and place, sometimes stating its business, sent to each member in advance. call ofthe house. A legislative body's order compel ling each absent member's attendance, usu. instruct ing that the sergeant at arms arrest and present each absentee. "In legislative bodies or other assemblies that have legal power to compel the attendance of their members, a pro cedure that can be used to obtain a quorum, if necessary, is the motion for a Call ofthe House. This is a motion that unexcused absent members be brought to the meeting under arrest. A Call of the House is not applicable in vol untary societies." Henry M. Robert, Robert's Rules ofOrder Newly Revised 40, at 339 (10th ed. 2000). call ofthe roll. See roll call. call to order. Parliamentary law. 1. The chair's dec laration that a deliberative assembly has properly convened and is ready for business. Also termed convocation. 2. The chair's request that a member follow the applicable rules or observe appropriate decorum. See DECORUM. quorum call. A roll call to determine whether a quorum is present. See QUORUM. roll call. Parliamentary law. A calling of the roll to take attendance or a vote. See roll-call vote under VOTE (4). -Also termed call ofthe roll. 2. A demand for payment of money. margin call. A securities broker's demand that a customer put up money or stock as collateral when the broker finances a purchase of securities. - A margin call usu. occurs when the market prices of the securities are falling. Also termed maintenance call. [Cases: Brokers C=:>24(2).] 3. See call option under OPTION. 4. A demand for the presentation of a security (esp. a bond) for redemption before the maturity date. [Cases: Corporations (::::,473.] 5. A landmark designating a property boundary. _ The landmarks are chosen by the surveyor and recorded in his field notes or in the accompanying deed. See DIREC TORY CALL; LOCATIVE CALL; METES AND BOUNDS. call, vb. (bef. 12c) 1. To summon. 2. To demand payment of money. 3. To redeem (a bond) before maturity. callable, adj. (Of a security) redeemable by the issuing corporation betore maturity. See REDEMPTION. [Cases: Corporations C=:>68.] callable bond. See redeemable bond under BOND (3). callable preferred stock. See STOCK. callable security. See redeemable security under SECURITY. called meeting. See special meeting under MEETING. call equivalent position. Securities. A security position that increases in value as the value of the underly ing equity increases. -It includes a long convertible security, a long call option, and a short put option. SEC Rule 16a-l(b) (17 CFR 240.16a-l(b)). [Cases: Securities Regulation C-'JS.2S(3).J call for the orders ofthe day. See CALL (1). call for the regular order. See call for the orders ofthe day under CALL (1). calling to the bar. See CALL TO THE BAR. call loan. See LOAN. call ofa meeting. See CALL (1). call ofthe house. See CALL (1). call ofthe roll. See roll call under CALL (1). call option. See OPTION, call patent. See PATENT (2). call premium. The percentage amount of a bond's face value that a company pays, along with the face value, to redeem a callable bond; the difference between a bond's call price and its par value. call price. See PRICE. 233 cancel call-protection clause. A clause in a bond issue or a callable preferred stock issue prohibiting the issuer from recalling the during a specified period. [Cases: Corporations call the question. Parliamentary law. 1. (Of a member) to move to close debate. 2. (Of a deliberative assembly) to adopt a motion to close debate. See CLOSE DEBATE. call to order. See CALL (1). call to the bar, n. lhe admission ofa person to practice law. This common phrase is a loan translation of the Latin ad barram evocatus ("called to the bar"). See AD BARRAM EVOCA TUS. Also termed calling to the bar. [Cases: Attorney and Client call up, vb. Parliamentary law. To bring before a delibera tive assembly business that is ready for consideration <call up the motion to reconsider>. calumnia (k<>-ldm-nee-d), n. pl. [Latin "vexatious pro ceedings"] Roman law. Vexatiously instituted civil proceedings or knowingly false criminal charges made against someone . The victim had civil or criminal remedies depending on the circumstances. calumniae judicium (b-ldm-nee-ee joo-dish-ee-<>m). [Latin "action for vexation"] Roman law. A countersuit that a defendant who was maliciously sued could bring after winning a judgment in the principal action. calumniae jusjurandum (b-Idm-nee-ee j<>s-j<>-ran d<>m). [Law Latin "oath of calumny"] Roman law. An oath given by a litigant that he is not suing or defend ing vexatiously. calumniate (k<l-lam-nee-ayt), vb. To slander or make false charges against. calumniator, n. calumny (kal-am-nee), n. (l6c) Archaic. l. The act of maliciously misrepresenting someone's words or actions in a way that is calculated to injure that person's reputation. See OBLOQUY (1). 2. A false charge or impu tation. calumnious (ka-lam-nee-<>s), adj. -calum niator (k<>l<lm-nee-ay-tar), n. Calvin's case. Ihe decision establishing that persons born in Scotland after the 1603 accession of James I to the English throne were deemed natural-born subjects ofthe King ofEngland and could inherit English land. Calvin v. Smith, 7 Eng. Rep. 1,2 S.T. 559 (1608). Calvo clause (kahl-voh). A contractual clause by which an alien waives the right to invoke diplomatic immunity . Such a clause typically appears in a contract between a national government and an alien. Calvo doctrine. Int'llaw. The rule that resident aliens have the same rights to protection as citizens, but no more. _ This doctrine, which sought to establish a minimum international standard for the treatment of aliens, was developed by the Argentinian jurist Carlos Calvo in his treatise Le Droit International1heorique et Pratique (5th ed. 1896). The doctrine was intended to prevent aliens from abusing their right ofdiplomatic protection. Itwas rejected by many states on the ground that the doctrine sought to deprive states oftheir right to protect their citizens in countries when the rights of the general population fell below the minimum inter national standards. cambiale jus (kam-bee-ay-lee j<ls). [Latin "law of exchange"] The law ofcommercial exchange. cambiator (kam-bee-ay-tar). Hist. An exchanger, usu. of money (cambiatores monetae). cambist (kam-bist). [fro Latin cambiare "to exchange") A broker who trades promissory notes or bills of exchange. Also termed cambiator. cambium (kam-bee-<>m). [Law Latin "exchange"] Hist. 1. An exchange of money, debt, or land. cambium locale. A contract of exchange in which a person agrees to pay a sum of money at one location in consideration of money received at another location. Also termed cambium mercantile; cambium trajectitium. cambium reale. An exchange ofland. -Also termed cambium manuale. 2. A mercantile contract in which the parties agree to exchange money for money; a bill of exchange. Also termed escambium. 3. Eccles. law. An exchange of money that potentially allows one party to profit. Historically, most forms ofcambium were forbidden under laws against usury but were gradually allowed as a fair recompense for trouble and risk. Cf. (in sense 3) USURY. camera (kam-<>-ra). [Latin] Chamber; room. See IN CAMERA. camera regis (kam-<>-r<> ree-jis). [Latin "chambers of the king"] Hist. A locale that the king takes a particular interest in, usu. expressed as a royal privilege benefit ing a city. camerarius (kam-<l-rair-ee-<>s). [fro Latin camera "chamber"] Hist. 1. A chamberlain or other treasurer in charge ofpublic money. 2. BAILIFF. Camera Scaccarii. See EXCHEQUER CHAMBER. Camera Stellata (kam-a-r<> std-Iay-td). [Law Latin] See STAR CHAMBER, COURT OF. campers. Hist. The share ofa lawsuit's proceeds payable to a champertor. See CHAMPERTY. [Cases: Champerty and Maintenance campipartia. See CHAMPERTY. campiparticeps. See CHAMPERTOR. campipartitio (kam-p<l-pahr-tish-ee-oh). [Law Latin] See CHAMPERTY. CAMs. abbr. See COMMON-AREA MAINTENANCE CHARGES. can, vb. (bef. 12c) 1. To be able to do something <you can lift 500 pounds>. 2. To have permission (as often inter preted by courts); MAY <no appeal can be filed until the filing fee is paid>. cancel, vb. 1. To destroy a written instrument by defacing or obliterating it <she canceled her will by marking through it>. 2. To terminate a promise, obligation, 234 canceled check canceled the contract>. [Cases: canceled check. See CHECK. cancellaria (kan-sa-lair-ee-a). [Law Latin] See CHANCERY (1). -Also termed curia cancellaria. cancellarius (kan-sa-Iair-ee-as). [Law Latin] 1. A chan cellor, scrivener, or notary. 2. See LORD CHANCELLOR. cancellation, n. (16c) 1. The act ofdefacing or obliterat ing a writing (as by marking lines across it) with the intention of rendering it void. 2. An annulment or ter mination ofa promise or an obligation. [Cases: Cancel lation ofInstruments Contracts (:::::>249.J flat cancellation. The cancellation of an insurance policy without any charge to the insured. [Cases: Insurance (:::::> 1933.] 3. An equitable remedy by which courts call in and annul outstanding void or rescinded instruments because they may either spawn vexatious litigation or cloud someone'g title to property. [Cases: Cancellation ofInstruments 4. Trademarks. The removal ofa trademark from the Principal Register . A trademark already on the Principal Register can be challenged by a person who claims to be damaged by the placement. For five years after a mark is allowed, it can be canceled for any reason that would have blocked allowance of the application. After that time, ifthe owner files a dec laration under 15, the grounds for cancellation are more restricted. See INCONTESTABILITY STATUS. Cf. OPPOSITION. [Cases: Trademarks C--:' 1297.] -cancel, vb. -cancelable, adj. cancellation dause. A contractual provision allowing one or both parties to annul their obligations under certain conditions. Also termed termination clause. [Cases: Contracts 250.1 cancellatura. Hist. See CANCELLATION. cancelled check. See CHECK. cancelli (kan-sel-I). [Latin "lattice, grille"] Archaic. 1. Lines drawn on a writing, esp. a will, indicating its revocation. See CANCELLATION (1). 2. Hist. The rails or latticework enclOSing the bar ofa court. cancerphobia claim. See FEAR-OF-CANCER CLAIM. C & F. abbr. COST AND FREIGHT. Also spelled CandF. candidate, n. [fro Latin candidatus, "clothed in white"; fr. candidus, "white," from the white toga worn by a candidate for public office in ancient Rome as a symbol of clean government] An individual seeking nomina tion, election, or appointment to an office, membership, award, or like title or status. A candidate for election becomes a "nominee" after being formally nominated. Cf. NOMINEE (1). candidate species. See SPECIES (1). Candlemas. See quarter day under DAY. canfara (kan-f~-r~). [Law Latin] Hist. A trial by hot iron, formerly used in England. See ordeal by fire under ORDEAL. canon (kan-~n), n. (bef. 12c) 1. A rule or principle, esp. one accepted as fundamental. canon ofconstruction. A rule used in construing legal instruments, esp. contracts and statutes. Although a few states have codified the canons of construc tion -examples ofwhich are contra proferentem and ejusdem generis -most jurisdictions treat the canons

construc tion -examples ofwhich are contra proferentem and ejusdem generis -most jurisdictions treat the canons as mere customs not having the force oflaw. -Often shortened to canon. -Also termed rule ofconstruc tion; rule ofinterpretation. rCases: Contracts ~'-:::J 143; Statutes C-~174.] "A frequent criticism of the canons [of construction], made forcefully by Professor Llewellyn many years ago, is that for every canon one might bring to bear on a point there IS an equal and opposite canon. This is an exaggeration; but what is true is that there is a canon to support every possible result." Richard A. Posner, The Federal Courts: Crisis and Reform 276 (1985). canon ofdescent. (usu. pl.) A common-law rule gov erning intestate succession . In England, canons of descent tended to concentrate landholdings in the hands ofa few people, an approach generally rejected in the United States. -Also termed canon ofinheri tance. [Cases: Descent and Distribution Cr'-:> 1-19.] "The common-law canons of descent tended to prevent the diffusion of landed property, and to promote its accumula tion in the hands of a few. The principles sprang from the martial genius of the feudal system. In the United States the English common law of descents, in its essential features, has been rejected; each State has established a law for itself." William C. Anderson, A Dictionarv of Law 349 (1889). 2. (usu. cap.) A maxim stating in general terms the standards ofprofeSSional conduct expected oflawyers. The Model Code ofJudicial Conduct (1990) contains five canons and hundreds of specific rules. [Cases: Attorney and Client (:::::>32(2); Judges 11(2).J 3. A rule of ecdesiasticallaw. 4. A corpus ofwritings. 5. A clergy member on the staff ofa cathedraL honorary canon. A canon who serves without payor other benefits. 6. A fixed regular payment or tribute made as a contri bution payable to the church. canon emphyteuticus (kan-<ln em-fi-t[y]oo-ti-kas). fro Greek] Roman law. The annual payment that an emphyteuta made under a contract ofemphyteusis. See EMPHYTEUSJS; EMPHYTEUTA. canonical (ka-non-a-kal), adj. 1. (Of a rule or decree) prescribed by, in conformity with, or relating to canon law. 2. Orthodox; conforming to accepted rules or con ventions. canonical disability. See DISABILITY (3). canonical impediment. See IMPEDIMENT. canonical law. See CANON LAW. canonical purgation. See PURGATION. canonist (kan-;m-ist), n. An expert in canon law; esp., a canon lawyer or professor ofecclesiastical law. canon law. 1. A body of western ecdesiasticallaw that was first compiled from the 12th to 14th centuries . It 235 has grown steadily since that time, and is now codified in the Codex Juris Canonici of 1983, replacing that of 1918. Also termed corpus juris canonici; papal law; jus canonicum. 2. A body oflaw developed within a particular religious tradition. -Also termed church law; canonical law. Cf. ECCLESIASTICAL LAW. [Cases: Religious Societies C:=>5.] "The indirect contributions of the canon law to the devel opment of English law were as great as, and the direct contributions far greater than, those made by the civil law. Indirectly the canon lawyers gave much even to the purely secular law of England, because, during the early Middle Ages, most of the judges or the royal courts were ecclesiastics acquainted with the chief doctrines of canon law.. , . The direct influence of the canon law in England resulted from its being the law which was administered in the courts of the Church," W,J,V, Windeyer, Lectures on Legal History 41 (2d ed. 1949). "Canon law has its roots in theology, But, so far as England is concerned, it may be defined as so much of the law of England as is concerned with the regulation of the affairs of the Church of England." E, Garth Moore & Timothy Briden, Moore's Introduction to English Canon Law 9 (2d ed. 1985). canon ofconstruction. See CANON (1). canon of descent. See CANON (1). canon ofinheritance. See canon ofdescent under CANON (1). cant (kant). Civil law. A method of dividing commonly held property by awarding it to the highest-bidding owner on condition that the successful bidder must buy out each coowner's interest. -Also termed licitation. cantred (kan-tred). [fr. Welsh cant "hundred" + tref "village"] See HUNDRED. CANT rule. The principle that a class action requires commonality, actionability, and typical [Cases: Federal Civil Procedure 161.1; Parties 35.5.] canum (kay-n;:)m). [Law Latin] Hist. A duty or tribute payable from a tenant to a lord, usu. consisting of produce from the land. canvass, vb. (16c) 1. To examine in detail; scrutinize <that issue has been repeatedly canvassed by our state's courts>. 2. To formally count ballots and report the returns <canvass the votes>. "When all the ballots have been collected, including those of the presiding officer, the secretary, and the tellers, the ballots are canvassed by the tellers, Canvassing the ballots means more than just counting, It includes evaluating ballots to identify those that are invalid, blank, cast for illegal nominees, illegible, abstaining, and the like, and reporting the total results to the presiding officer for his announcement of the results." Ray E. Keesey, Modem Par liamentary Procedure 113 (l994). 3. To solicit political support from voters or a voting district; to take stock ofpublic opinion <the candidate is actively canvassing the Western states>. canvass, n. cap, n. (1947) An upper limit, such as a statutory limit on the recovery in a tort action or on the interest a bank can charge. -cap, vb. capacity capacitate (b-pas-<l-tayt), vb. (17c) To qualify; to make legally competent. capacitation (b-pas-<l-tay-shan), n. capacity. (15c) 1. 'The role in which one performs an act <in her corporate capacity>. proprietary capacity. The capacity of a city or town when it engages in a business-like venture rather than a governmental function, See PROPRIETARY FUNCTION. [Cases: Municipal Corporations C:=>57.] representative capacity. (17c) The position of one standing or acting for another, esp. through delegated authority <an agent acting in a representative capacity for the principal>. [Cases: Principal and Agent (;::;. 1.) 2. The power to create or enter into a legal relation under the same circumstances in which a normal person would have the power to create or enter into such a relation; specif., the satisfaction ofa legal quali fication, such as legal age or soundness of mind, that determines one's ability to sue or be sued, to enter into a binding contract, and the like <she had full capacity to bind the corporation with her signature>. Unless necessary to show the court's jurisdiction, a plaintiffs pleadings need not assert the legal capacity ofany party. A party wishing to raise the issue ofcapacity must do so by specific negative pleading. Fed. R. Civ. P.9(a). Also termed (specif.) capacity to sue; power over oneselj: See STANDING. Cf. I,ACK OF CAPACITY. [Cases: Contracts C:=> 11,92; Federal Civil Procedure C=::> Ill; Infants 5,6,22,46,70.] 3. The mental ability to understand the nature and effect ofone's acts <his acute pain reduced his capacity to understand the hospital's admission form>. -Also termed mental capacity; sane memory. See COMPETENCY. criminal capacity. (1853) The mental ability that a person must possess to be held accountable for a crime; the ability to understand right from wrong. See INSANITY; INFANCY. [Cases: Criminal Law C:=> 46; Homicide diminished capacity. (1912) An impaired mental condition short ofinsanity -that is caused by intoxication, trauma, or disease and that prevents a person from having the mental state necessary to be held responsible for a crime . In some jurisdictions, a defendant's diminished capacity can be used to determine the degree ofthe offense or the severity of the punishment. Also termed diminished respon sibility; partial insanity; partial responsibility. Cf. INSANITY. [Cases: Criminal Law C:=>46; Homicide (;::;816.] disposing capacity. See testamentary capacity, testamentary capacity. (1819) The mental ability that a person must have to prepare a valid will. This capacity is often described as the ability to recognize the natural objects ofone's bounty, the nature and extent ofone's estate, and the fact that one is making a plan to dispose ofthe estate after death. Traditionally, the phrase "oflegal age and sound mind" refers to the testator's capacity. -Also termed disposing capacity; disposing mind; sound mind. See age ofcapacity under AGE. [Cases: Wills (;:::J21-55.] 4. The ability or power to do or experience some thing. decreased capacity. A diminution in a person's physical ability because ofan illness, injury, or impairment. capacity defense. See DEFENSE (1). capacity to sue. See CAPACITY (2). capax doli (kay-paks doh-h). See DOLI CAPAX. capax negotii (kay-paks ni-goh-shee-l), adj. [Latin "capable' of entering into a transaction") (Of a person) having capacity to enter into a contract; capable of transacting business. cape (kay-pee). His!. [Latin "take"] A writ filed to recover possession ofland. cape magnum (kay-pee mag-nam). [Latin "grand" cape] A writ granting possession ofland before a tenant's appearance in the action. Also termed magnum cape; grand cape. cape parvum (kay-pee pahr-vam). [Latin "little" cape] A writ for the recovery ofland issuing after the appearance ofthe tenant in the action. Also termed petit cape. "Cape is a writ judicial I touching plee of land or tenements, so tearmed (as most writs be) of that word in itselfe, which carieth the especial lest intention or end thereof. And this writ is divided in (Cape magnum, & Cape parvum:) both which ... take hold of things immoveable, and seeme to differ betweene themselves in these points. First, because (cape magnum) or the (grand Cape) Iyeth before appear ance, and (Cape parvum) afterward. Secondly, the (Cape magnum) summoneth the tenent to aunswer to the default, and over to the demaundant: (Cape parvum) summoneth the tenent to aunswer to the default onely: and therefore is called (Cape parvum) or in French English (petit Cape.)" John Cowell. The Interpreter (1607). capias (kay-pee-as or kap-ee-as). [Latin "that you take"] (15c) Any of various types of writs that require an officer to take a named defendant into custody . A capias is often issued when a respondent fails to appear or when an obligor has failed to pay child support. Also termed writ ofcapias; body execution. [Cases: Process capias ad audiendumjudicium (ad aw-dee-en-dam joo-dish-ee-.->m). [Latin "that you take to hear the judgment"] In a misdemeanor case, a writ issued to bring the defendant to hear the judgment to be imposed after having failed to appear. capias ad computandum (ad kom-pyoo-tan-dam). [Latin "that you take for computation"] Hist. A writ issued when a debtor has failed to appear and make account after losing in an action of account render. See ACCOUNTING (3). capias adfaciendum. Hist. A writ used to enforce a creditor's judgment against a debtor by authorizing the debtor's arrest and imprisonment. capias ad respondendum (ad ree-spon-den-dam). [Latin "that you take to answer"] A writ command ing the sheriff to take the defendant into custody to ensure that the defendant will appear in court. - Abbr. ca. resp.; ca. re.; ca. ad reo capias ad satisfaciendum (ad sat-is-fay-shee-en -dam). [Latin "that you take to satisfy"] Hist. A post judgment writ commanding the sheriff to imprison the defen dant until the judgment is satisfied. Abbr. ca. sa. [Cases: Execution C:')421.] capias extendifacias (ek-sten-dr fay-shee-as). [Latin "take for extending"] Hist. A writ ofexecution issued against one who is indebted to the Crown, command ing the sheriff to arrest the debtor. capias in withernam (kay-pee-as in with-.->f-nahm). [Law Latin "taking again"] A writ authoriZing the sheriff to seize the goods or cattle of a wrongful dis trainor. -Also termed writ ofwithernam. See WITH ERNAM. capias pro fine (kay-pee-<ls proh

ed writ ofwithernam. See WITH ERNAM. capias pro fine (kay-pee-<ls proh fI-nee). [Latin "that you take for the fine"] A writ for the arrest of a person who had not paid an imposed fine. Also termed capiatur pro fine. [Cases: Fines capias utlagatum (kay-pee-<ls at-l<l-gay-t<lm). [Latin "you take the outlaw"] A writ commanding the arrest of an outlawed person. [Cases: Criminal Law ~lOOO.] capiendo securitatem pro duplicatione feudifirmae (kap-ee-en-doh si-kyuur-<l-tay-t"m proh d[y]oo-pli kay-shee-oh-nee fyoo-di-far-mee). [Law Latin "by taking caution for the payment of a double ofthe feu duty"] His!. In a precept for entry of an heir, a clause that cautions against taking a double feu payment when the investiture did not expressly provide for it. capita. See PER CAPITA. capital, adj. (16c) 1. Ofor relating to economic or finan cial capital <capital market>. 2. Punishable byexecu tion; involving the death penalty <a capital offense>. [Cases: Sentencing and Punishment capital, n. (17c) 1. Money or assets invested, or avail able for investment, in a business. 2. The total assets of a business, esp. those that help generate profits. 3. The total amount or value ofa corporation's stock; cor porate equity. See capital stock under STOCK. [Cases: Corporations ~61.] actual capital. Funds generated by the sale of stock. See capital stock (1) under STOCK. authorized capital. See nominal capital. circulating capital. Seefloating capital. debt capital. Funds raised by issuing bonds. equity capital. Funds provided by a company's owners in exchange for evidence ofownership, such as stock. [Cases: Corporations (;:::J60.) fixed capital. 1. The amount ofmoney invested in fixed assets, such as land and machinery. 2. Fixed assets. }loating capital. 1. Funds not allocated to a particular class ofthe corporation's capital stock. 2. Funds not presently invested or committed; esp., money retained for the purpose ofmeeting current expenditures. Also termed circulating capital. impaired capital. Corporate funds consisting ofassets that are less than the sum of the corporation's legal capital and its liabilities. legal capital. An amount equal to the aggregate "par" or stated value of all outstanding shares of a corpo ration, or, in the case of stock without par value, an amount set by the board of directors. A minority of states.require this amount to remain in the cor poration to protect creditors. Also termed stated capital. [Cases: Corporations moneyed capital. Money that is invested with the intent ofmaking a profit. nominal capital. The minimum value ofthe shares that a company is authorized by its association documents to issue. -Also termed authorized capital. paid-in capital. The money paid for the capital stock of a corporation. [Cases: Corporations e;:::, 16,60.] proprietary capital. Money that represents the initial investment in a sole proprietorship. risk capital. 1. Money or property invested in a business venture, esp. one in which the investor has no mana gerial control. 2. See venture capital. stated capital. 1. See legal capital. 2. The total equity of a corporation as it appears on the balance sheet. subscribed capital. The total value of stock for which there are subscriptions (contracts ofpurchase). venture capital. Funds invested in a new enterprise that has high risk and the potential for a high return. Also termed risk capital. See SEED MONEY. working capital. Current assets (such as cash, inven tory, and accounts receivable) less current liabilities. Working capital measures liquidity and the ability to discharge short-term obligations. [Cases: Corpora tions C-J152.] capital account. See ACCOUNT. capital asset. See ASSET. capital contribution. 1. Cash, property, or services contributed by partners to a partnership. [Cases: Part nership 072, 355.] 2. Funds made available by a shareholder, usu. without an increase in stock holdings. [Cases: Corporations C::;)60.] capital crime. See capital offense under OFFENSE (1). capitale (kap-i-tay-Iee). [Latin "a thing"] Hist.l. Movable property, esp. animals (such as 100 head of cattle). Over time, chattel became the more common term. 2. A stolen thing, or its equivalent value. PI. capitalia. capital expenditure. (1898) An outlay of funds to acquire or improve a fixed asset. Also termed capital improvement; capital outlay. capital expense. See EXPENSE. capital flight. The sending oflarge amounts of invest ment money out ofa country, usu. as a result ofpanic caused by political turmoil or a severe recession. capital gain. (1921) The profit realized when a capital asset is sold or exchanged. Also termed capital gains. Cf. ordinary gain under GAIN (3); capital loss under LOSS. [Cases: Internal Revenue (=>3230.1-3234.] "Throughout most of the history of income taxation in the U.S., a distinction has been drawn between the rate of taxation on 'ordinary income' (or ordinary loss) and 'capital gain' (or capital loss). 'Capital gain' refers to the income from certain transactions in some assets, called capital assets, or from other transactions that Congress has said should be taxed as capital gain.. . The most common form of capital gain or loss transaction is a sale of an asset such as a share of stock or a parcel of land, for cash." John K. McNulty, Federal Income Taxation ofIndividuals in a Nutshell 420 (5th ed. 1995). long-term capital gain. The profit realized from selling or exchanging a capital asset held for more than a specified period, usu. one year. [Cases: Internal Revenue e;:::, 3260.] short-term capital gain. The profit realized from selling or exchanging a capital asset held for less than a speci fied period, usu. one year. It is treated as ordinary income under current federal tax law. [Cases: Internal Revenue (,,3260.] capital-gain distribution. See capital-gain dividend under DIVIDEND. capital-gain dividend. See DIVIDEND. capital gains. See CAPITAL GAIN. capital-gains tax. See TAX. capital goods. See GOODS. capital impairment. The financial condition of a cor poration whose assets are less than the sum ofits legal capital and its liabilities. capital improvement. See CAPITAL EXPENDITURE. capita lis (kap-i-tay-lis), adj. [Latin] 1. Roman law. (Of a crime) punishable by death, loss of liberty, or loss of citizenship. See CAPUT. 2. Hist. (Ofa person orjudicial proceeding) that is principal or chief. capita lis, n. [Latin "chief"] Hist. A principal (or chief) person, object, or judicial proceeding. capitalis baro (kap-i-tay-lis bar-oh). [Latin "chief baron"] Hist. The chiefbaron of the Court of Exche quer. See CHIEF BARON. capitalis custos (kap-i-tay-lis kCls-tohs). [Latin "chief guardian"] Hist. 1. A chief warden or magistrate. 2. Loosely, a mayor. capitalis dominus (kap-i-tay-lis dom-<'l-n<ls). [Latin "chieflord"] Hist. A tenant's immediate lord; CHIEF LORD. capitalis justiciarius (kap-i-tay-lis j<'ls-tish-ee-air-ee-<ls). [Latin "chief justiciary"] Hist. The principal minister of state who governed when the king traveled abroad . By the 13th century the duties ofoffice were more judicial than political. See JUSTICIARY (2). 238 capitalis justiciarius ad placita coram rege tenenda capitalis justiciarius ad placita coram rege tenenda (kap-i-tay-lis j;:Js-tish-ee-air-ee-;:Js ad plas-;:J-t;:J kor-;:Jm ree-jee t;:J-nen-d;:J). [Latin] Hist. Chief justice for holding pleas before the king. _ This phrase which dates from the 13th century -referred to the chief justice of the King's Bench. capitalis justiciarius band (kap-i-tay-lis j;:Js-tish-ee-air ee-;:Js ban-sl). [Latin] Chief justice ofthe bench. -This phrase which dates from the 13th century -referred to the chief justice of the Court ofCommon Pleas. capitalis justiciarius totius Angliae (kap-i-tay-lis j;:Js tish-ee-air-ee-;:Js toh-shee-;:Js ang-glee-ee). [Latin] Hist. Chief justice of all England. -This was the title of the presiding justice in the court of aula regis. capitalism, n. (1849) An economic system that depends on the private ownership of the means of produc tion and on competitive forces to determine what is produced. Cf. COMMUNISM (1). capitalist, adj. & n. capita lis plegius (kap-i-tay-Iis plee-jee-;:Js). [Latin "chief pledge"] Hist. 1. A chief pledge or surety. 2. BORSH OLDER. capitalis terra (kap-i-tay-lis ter-d). [Latin "head-land"] Hist. A piece of land lying before, or at the head of, other land. capitalization, n. 1. The act or process of capitalizing or converting something into capital. 2. The amount or sum resulting from this act or process. 3. The total amount oflong-term financing used by a business, including stocks, bonds, retained earnings, and other funds. 4. The total par value or stated value of the authorized or outstanding stock ofa corporation. thin capitalization. The financial condition of a firm that has a high ratio ofliabilities to capital. undercapitalization. The financial condition of a firm that does not have enough capital to carryon its business. [Cases: Corporations (;:~, 1.4(1).] capitalization accounting method. See ACCOUNTING METHOD. capitalization rate. The interest rate used in calculating the present value offuture periodic payments. Also termed cap rate; income yield. capitalization ratio. The ratio between the amount of capital raised and the total capitalization of the firm. Also termed capital ratio. capitalize, vb. 1. To convert (earnings) into capital. 2. To treat (a cost) as a capital expenditure rather than an ordinary and necessary expense. 3. To determine the present value of (long-term income). 4. To supply capital for (a business). capitalized expense. See EXPENSE. capital lease. See LEASE-PURCHASE AGREEMENT. capital leverage. (1940) The use of borrowed funds in a business to obtain a return greater than the interest rate. See LEV ERAGE. capital loss. See LOSS. capital market. See MARKET. capital offense. See OFFENSE (l). capital outlay. (I857) 1. CAPITAL EXPENDITURE. 2. Money expended in acqUiring, equipping, and pro moting a business. capital punishment. The sentence ofdeath for a serious crime. Also termed death penalty. See DEATH PENALTY. "At Common Law capital punishment was imposed for a few very serious offences such as treason, murder, rape, and burning a dwelling-house. Even as late as 1688, despite the exceptionally rigorous laws which had been enacted during the reigns of the Tudors and Stuarts, no more than about fifty offences carried the death penalty. In the eigh teenth century, however, their number began spectacularly to increase.... Broadly speaking, in the course of the hundred and sixty years from the Restoration to the death of George III. the number of capital offences had increased by about one hundred and ninety." 1 Leon Radzinowicz, A History ofEnglish Criminal Law 1, at 4 (1948). capital ratio. See CAPITALIZATION RATIO. capital recovery. (1942) The collection of charged-off bad debt that has been previously written off against the allowance for doubtful accounts. capital return. See RETURN. capital-risk test. Securities. A method of determin ing whether a transaction constitutes an investment contract (subject to securities laws), whereby ifa sub stantial portion of the capital used by a franchiser to start its operations is provided by a franchisee, then the transaction is treated as an investment contract. Cf. RISK-CAPITAL TEST. [Cases: Securities Regulation (;=>252.] capital stock. See STOCK. capital-stock tax. See TAX. capital structure. (1923) 1be mix of debt and equity by which a business finances its operations; the relative proportions of short-term debt, long-term debt, and capital stock. capital surplus. See SURPLUs. capital transaction. A purchase, sale, or exchange of a capital asset. capitaneus (kap-i-tay-nee-<'ls). [Law Latin "tenant in chief"] 1. Hist. A tenant in capite; one who holds title directly from the king. Also termed

chief"] 1. Hist. A tenant in capite; one who holds title directly from the king. Also termed cataneus. 2. Maritime law. A ship captain or naval commander. 3. A ruler or leader. capitated, adj. Insurance. Ofor relating to a healthcare system that gives a medical-care provider a fixed fee per patient regardless ofthe treatment required. capitation. 1. See poll tax under TAX. 2. A method of paying a healthcare provider based on the number of members in a health-benefit plan that the provider con tracts to treat. -The health plan's sponsor agrees to pay a fixed amount per person each period, regardless of what services are provided. capitation tax. See poll tax under TAX. capitis aestimatio (kap-i-tis es-ti-may-shee-oh). [Latin "valuing of a head"] Hist. A monetary estimate of a person's life, made to assess a penalty for the person's slaying. See WERGILD. capitis deminutio (kap-His dem-i-n[y]oo-shee-oh). [Latin "reduction ofstatus"] Roman law. A diminution or alteration of a person's legal status. Also spelled capitis diminutio. See DE CAPITE MINUTIS. "Capitis deminutio is the destruction of the 'caput' or legal personality. Capitis deminutio, so to speak, wipes out the former individual and puts a new one in his place, and between the old and the new individual there is, legally speaking, nothing in common. Ajuristic personality may be thus destroyed in one of three ways: (1) by loss of the status libertatis. This is the capitis deminutio maxima; (2) by loss of the status civitatis. This is the capitis deminutio media (magna); (3) by severance from the agnatic family. This entails capitis deminutio minima." Rudolph Sohm, The Institutes: A Textbook of the History and System of Roman Private Law 178-79 Uames Crawford Ledlie trans., 3d ed. 1907). capitis deminutio maxima (kap-i-tis dem-i-n[y]oo shee-oh mak-si-m<}). [Latin "maximum reduction of status"] Roman law. The diminution ofa person's legal status as a result ofbeing reduced to slavery. capitis deminutio minima (kap-i-tis dem-i-n[yJoo shee-oh min-i-md). [Latin "minimal reduction of status"] Roman law. The diminution of a person's legal status involving a change of family, while both citizenship and freedom were retained. capitis deminutio minor (kap-i-tis dem-i-n[yJoo shee-oh mI-n<}r). [Latin "minor reduction of status"] Roman law. The diminution ofa person's legal status involving a loss ofcitizenship but not of freedom. Under the Empire, banishment for life to an island or other restricted area had this effect. Also termed capitis deminutio media. capitula (kd-pich-d-Id). [Law Latin "chapters"] Hist. l. Collections oflaws or ordinances organized under various headings. Also termed capitulary. 2. Chapters or assemblies ofecclesiastical persons. capitula coronae (b-pich-a-Id k<}-roh-nee). [Latin "chapters of the Crown"] Hist. A more detailed form of the articles ofthe eyre. See ARTICLES OF THE EYRE. capitula de judaeis (k<}-pich-d-Id dee joo-dee-is). [Latin "chapters on the Jews"] His/. 1. Laws concerning the Jews. 2. Questions posed by the justices in eyre to determine the amount a Jew would pay to receive the king's protection and a license to conduct business. The capitula de judaeis reflected the pervasive anti Semitism ofmedieval England. Cf. ARTICLES OF THE EYRE. capitula itineris (b-pich-d-l<l I-tin-d-ris). [Law Latin "chapters of the eyre"] See ARTICLES OF THE EYRE. capitulary (b-pich-d-Ier-ee). [Latin "chapter or section (of a codeY'll. Any orderly and systematic collection or code oflaws. See CAPITULA (1), 2. Hist. A law or series oflaws enacted by a Frankish king, esp. Charlemagne, dealing esp. with ecclesiastical affairs. capitulation (kd-pich-d-lay-shdn), n. (16c) 1. The act of surrendering or giving in. 2. Int'llaw. An agreement to surrender a fortified place or a military or naval force. A commander in control may generally make such an agreement for the place or force. [Cases: War and National Emergency (;::;:>9.) 3. Hist. An agreement between a Christian state and a non-Christian one (such as the Ottoman Empire) giving subjects of the former certain privileges in the territory of the latter. 4. Hist. International law. A special, usu. nonreciprocal, right established by a treaty through which one nation could exercise jurisdiction over its citizens and their property within the territory ofanother nation . Capitulations were a common feature of trade treaties in particular because merchants often accumulated wealth in foreign nations. Capitulations became disfavored before World War I and were gradually abolished during the 20th century. -capitulate, vb. capitulatory, adj. CAPJ. abbr. See chief administrative patent judge under JUDGE. capper. L One who solicits business for an attorney. See BARRATRY (1); RUNNER (2). 2. Slang. A person who acts as a lure for others (as in a gambling or confidence game). -Also termed (in sense 2) stool pigeon. cap rate. See CAPITALIZATION RATE. caprice (k;}-prees), n. 1. Arbitrary or unfounded motiva tion. 2. The disposition to change one's mind impul sively. capricious (kd-prish-dS), adj. (17c) 1. (Of a person) char acterized by or gUided by unpredictable or impulsive behavior. 2. (Of a decree) contrary to the evidence or established rules oflaw. Cf. ARBITRARY. CAPTA. abbr. CHILD ABUSE PREVENTION AND TREAT MENTACT. captain-of-the-ship doctrine. In medical-malpractice law, the doctrine imposing liability on a surgeon for the actions of assistants who are under the surgeon's control but who are employees of the hospital, not the surgeon. [Cases: Health (;::;:>787.] captain's mast. See MAST (1). captation (kap-tay-sh;}n). Civil law. Coercion ofa testator resulting in the substitution ofanother person's desires for those ofthe testator . The term formerly applied to the first stage of a trance. Cf. UNDUE INFLU ENCE. [Cases: Wills captator (kap-tay-tdr). Civil law. A person who obtains or tries to obtain a gift or legacy through artifice. See UNDUE INFLUENCE. captio (kap-shee-oh). Hist. 1. An arrest ofa person, or a seizure of a thing. 2. The holding of court. caption_ (17c) L The introductory part of a court paper stating the names ofthe parties, the name ofthe court, the docket or file number, and a description of the paper. Fed. R. Civ. P. lO(a). Cf. STYLE (1). [Cases: Federal Civil Procedure Pleading (;::;:>4,43-46.]2. The arrest or seizure a person by legal process. 3. See HEADING. captive, n. 1. A person who is unlawfully seized and held by another. Cf. PRISONER. 2. PRISONER OF WAR. 3. An animal, esp. a wild one, that is caught and kept confined. captive-audience doctrine. 1. Constitutional law. The principle that when the listener cannot, as a practical matter, escape from intrusive speech, the speech can be restricted. [Cases; Constitutional Law ~1502.] 2. Labor law. The rule that prohibits either party to a union election from making a speech on company time to a mass assembly ofemployees within 24 hours ofan election. -Also termed captive-audience rule. captive insurance. See INSURANCE. captive insurance company. See INSURANCE COM PANY. captive insurer. See captive insurance company under INSURANCE COMPANY. captive law firm. See LAW FIRM. capture. See RULE OF CAPTURE. capture-and-hold rule. Oil & gas. For royalty-calcula tion purposes, the doctrine that "production" occurs when oil or gas is pumped to the surface and stored, whether at the wellhead or elsewhere on the leased property. Cf. MARKETABLE-PRODUCT RULE. [Cases: Mines and Minerals ~79.1(1).] caput (kap-~t), n. [Latin "head"] 1. Hist. A head, chief, or principal person. 2. Roman law. A person. 3. Roman law. A person's condition or status. "A 'natural,' as opposed to an 'artificial,' person is such a human being as is regarded by the law as capable of rights or duties: in the language of Roman law as having a 'status.' , , , Besides possessing this general legal capacity, or status, a man may also possess various special capaci ties, such as the 'tria capita' of liberty, citizenship, and family rights, A slave having, as such, neither rights nor liabilities, had in Roman law, strictly speaking, no 'status,' 'caput,' or 'persona.' ... It must however be remembered that the terms 'persona' and 'caput' were also used in popular language as nearly equivalent to 'homo,' and in this sense were applied to slaves as well as to freemen." Thomas E, Holland, The Elements ofJurisprudence 80-81 (4th ed. 1888), caput comitatus (kap-~t kom-~-tay-t~s), [Latin "head of the county"] Hist. The head ofa county; a sheriff. caput gerat lupinum (kap-;:)t jeer-;:)t 100-pI-n~m). [Latin "let him bear the head of a wolf"] Hist. An outlawed felon considered a pariah a lone wolf open to attack by anyone. See OUTLAWRY. "He who breaks the law has gone to war with the commu nity; the community goes to war with him. It is the right and duty of every man to pursue him, to ravage his land, to burn his house, to hunt him down like a wild beast and slay him; for a wild beast he is; not merely is he a 'friend less man,' he is a wolf. , , . Caput gerat lupinum, , in these words the court decreed outlawry," 2 Frederick Pollock & Frederic W, Maitland, The History ofEnglish Law Before the Time ofEdward 1449 (2d ed, 1899), caput mortuum. Archaic. A matter or thing that is void as to all persons and for all purposes. carcanum (kahr-kay-n;:)m). "iron collar, pillory"] Hist. A prison or workhouse. carcelage (kahr-s~-lij). [fro Latin carcer "prison"] Hist. Prison fees. career (kahr-s~r), n. [Latin "jail, prison"] Hist. A prison or jail, esp. one used to detain rather than punish . Career, as used in English law and Roman law, usu, referred to a jail used as a place ofdetention during trial or after sentence pending execution, rather than as a place of punishment. The modern term incarceration derives from this word. cardinal-change doctrine. Contracts. The principle that if the government makes a fundamental, unilat eral change to a contract beyond the scope ofwhat was originally contemplated, the other party (usu. a con tractor) will be released from the obligation to continue work under the contract. A contractor's allegation of cardinal change is essentially an assertion that the government has breached the contract. [Cases: United States (;.-=>73(17).] cardo controversiae (kahr-doh kon-tr~-var-shee-ee). [Law Latin] Hist. The hinge ofthe controversy; the main point ofa controversy. ca. reo See capias ad respondendum under CAPIAS. care, n, (bef. 12c) 1. Serious attention; heed <written with care>. 2. Under the law of negligence or ofobligations, the conduct demanded ofa person in a given situation, Typically, this involves a person's giving attention both to possible dangers, mistakes, and pitfalls and to ways ofminimizing those risks <standard ofcare>. See DEGREE OF CARE; REASONABLE PERSON. [Cases: Neg ligence (::;:::'230,] adequate care. See reasonable care. due care. See reasonable care. extraordinary care. See great care. great care. (lSc) 1. The degree of care that a prudent person eXercises in dealing with very important personal affairs. 2. The degree of care exercised in a given situation by someone in the business or pro fession ofdealing with the situation. Also termed extraordinary care; high degree ofcare; utmost care. high degree ofcare. See great care. highest degree ofcare. l. The degree of care exercised commensurate with the danger involved. [Cases: Negligence <:=230.] 2. See great care. ordinary care. See reasonable care, proper care. See reasonable care. reasonable care. (17c) As a test of liability for negli gence, the degree of care that a prudent and com

reasonable care. (17c) As a test of liability for negli gence, the degree of care that a prudent and com petent person engaged in the same line of business or endeavor would exercise under similar circum stances. -Also termed due care; ordinary care; adequate care; proper care. See REASONABLE PERSON. [Cases: Negligence ~233.] slight care. (17c) The degree of care a person gives to matters ofminor importance; the degree ofcare given by a person oflimited accountability. utmost care. See great care. 241 3. Family law. The provision ofphysical or psychologi cal comfort to another. esp. an ailing spouse, child, or parent. career criminal. See RECIDIVIST. career offender. See OFFENDER. career vice-consul. See VICE-CONSUL. caregiver. Family law. A person, usu. not a parent, who has and exercises custodial responsibility for a child or for an elderly or disabled person. Also termed caretaker; custodian. See RESIDENTIAL RESPONSIBILITY. [Cases: Child Custody ~44;Parent and Child C-~15.] careless, adj. (bef. 12c) 1. (Of a person) not exercising reasonable care. 2. (Ofan action or behavior) engaged in without reasonable care. Cf. RECKLESS. carelessness, n. (bef. 12c) 1. The fact, condition, or instance ofa person's either not having done what he or she ought to have done, or having done what he or she ought not to have done; heedless inattention. 2. A person's general disposition not to do something that ought to be done. "The word 'carelessness' as a synonym for negligence can be committed by those who care deeply. A man may take all the care of which he is capable, and yet be accounted negligent for failing to reach the objective standard. He may honestly ... believe that the facts are such that he is not imperilling anyone; but he may be held to have been negligent in arriving at that belief. An incompetent driver may be convicted of driving 'without due care and atten tion' even though he was doing his level best. The careless person is the person who does not take the care he ought to take: never mind whether he felt careful. He can be held to be negligent in making a perfectly honest mistake." Glan ville Williams, Textbook ofCriminal Law 44-45 (1978). ca. resp. See capias ad respondendum under CAPIAS. caretaker. See CAREGIVER. caretaking functions. Family law. A parent's or care giver's task that either involves interaction with a child or directs others' interaction with a child . Some care taking functions include feeding and bathing a child, guiding the child in language and motor-skills devel opment, caring for a sick child, disciplining the child, being involved in the child's educational development, and giving the child moral instruction and guidance. Principles ofthe Law ofFamily Dissolution: Analysis and Recommendations 2.03 (ALI, Tentative Draft No. 3, pt. I, 1998). Cf. PARENTING FUNCTIONS. cargo. Goods transported by a vessel, airplane, or vehicle; FREIGHT (1). general cargo. Goods and materials ofvarious types transported by carriers, often in a common load, with few or no restrictions. hazardous cargo. Dangerous goods or materials whose carriage is usu. subject to stringent regulatory and statutory restrictions. cargo insurance. See INSURANCE. carjacking. The forcible theft ofa vehicle from a motorist; the unlawful commandeering of an automobile. 18 USCA 2119. Robbery ~1.] -carjack, vb. carriage paid to carnal abuse. See sexual abuse (1) under ABUSE. carnaHs copula. See SEXUAL RELATIONS (1). carnal knowledge. (15c) Archaic. Sexual intercourse, esp. with an underage female. Sometimes shortened to knowledge. [Cases: Incest Rape ~7.] "The ancient term for the act itself was 'carnal knowl edge' and this is found in some of the recent cases and statutes. The phrase 'sexual intercourse,' more common today apart from legal literature, is also found in recent cases and statutes. Either term, when the reference is to rape, is sometimes coupled with the word 'ravish.' And unlawful intercourse with a girl under the age of consent is often characterized as 'carnal knowledge and abuse.'" Rollin M. Perkins & Ronald N. Boyce, Criminal Law 201 (3d ed.1982). carnet (kahr-nay). A customs document allowing an item (esp. an automobile) to be exported temporarily from one country into another country. carriage. Transport offreight or passengers. carriage and insurance paid to. A mercantile-contract term allocating the rights and duties ofthe buyer and the seller of goods with respect to delivery, payment, and risk ofloss, whereby the seller must (1) clear the goods for export, (2) pr~cure and pay for insurance against the buyer's risk of damage while the goods are in carriage, (3) deliver the goods to the buyer's chosen carrier, and (4) bear the costs of carriage (apart from import duties) to the named destination . When the goods are delivered to the carrier, the seller's delivery is complete; the risk ofloss then passes to the buyer. Any mode of transportation can be used to carry the goods. Abbr. CIP. Cf. CARRIAGE PAID TO. Carriage ofGoods by Sea Act.lHaritime law. A 1936 federal statute regulating a carrier's liability for the loss or damage, and sometimes the delay, of ocean cargo shipped under a bill oflading. 46 USCA 1300-15. The Act defines many ofthe rights and responsibili ties ofboth the issuers and the holders ofocean bills of lading. Abbr. COGSA. [Cases: Shipping 103.] "The Carriage of Goods by Sea Act (COGSA), the domestic enactment of the international convention popularly known as the Hague Rules, allocates the risk of loss for cargo damage that occurs during ocean transportation to or from the United States under contracts evidenced by bills of lading and similar documents of title. It is the central statute in commercial admiralty, governing over $200 billion worth of American foreign commerce annually. The other major maritime countries of the world have also adopted the Hague Rules to govern their international ocean commerce." Michael F. Sturley, The Fair Opportunity Requirement Under COGSA Section 4(S): A Case Study in the Misinterpretation ofthe Carriage ofGoods by Sea Act, 19 J. Mar. L. & Com. 1, 1-2 (1988). carriage paid to. A mercantile-contract term allocat ing the rights and duties of the buyer and the seller of goods with respect to delivery, payment, and risk ofloss, whereby the seller must (1) clear the goods for export, (2) deliver them to the buyer's chosen carrier, and (3) pay the costs of carriage (apart from import duties) to the named destination . When the goods are delivered to the carrier, the seller's delivery is complete; the risk of loss then passes to the buyer. Any mode of 242 carried interest transportation can be used to carry the goods. -Abbr. CPT. Cf. CARRIAGE AND INSURANCE PAID TO. carried interest. See INTEREST (2). carrier. 1. An individual or organization (such as a ship owner, a railroad, or an airline) that contracts to trans port passengers or goods for a fee. Cf. SHIPPER. [Cases: Carriers (::=>3, 235.] common carrier. (15c) A commercial enterprise that holds itself out to the public as offering to transport freight or passengers for a fee. A common carrier is generally required by law to transport freight or passengers or freight, without refusal, ifthe approved fare or charge is paid. -Also termed public carrier. [Cases: Carriers (::=>4.] "[AJ 'common carrier' is bound to take all goods of the kind which he usually carries, unless his conveyance is full, or the goods be specially dangerous; but may charge differ ent rates to different customers." Thomas E. Holland, The Elements ofJurisprudence 299 (l3th ed. 1924). marine carrier. A carrier operating on navigable waters subject to the jurisdiction of the United States. non-vessel-operating common carrier. Maritime law. A freight forwarder that does not own the means of transportation, but that contracts with a shipper to transport freight, and with a carrier to perform the transportation . The non-vessel-operating common carrier becomes the carrier in the contract with the original shipper, and the shipper in the contract with the eventual carrier. See FREIGHT FORWARDER. - Abbr. NVOCC. [Cases: Shipping (::=> 112.] private carrier. (18c) Any carrier that is not a common carrier by law . A private carrier is not bound to accept business from the general public. -Also termed contract carrier. [Cases: Automobiles (::=>76; Carriers (::=>3.] 2. INSURER. carrier's lien. See LIEN. Carroll doctrine. The principle that a broadcast licensee has standing to contest any grant of a competitive license by the Federal Communications Commission because the grant could lead to a diminution in broad cast service by causing economic injury to an existing licensee. Carroll Broadcasting Co. v. FCC, 258 F.2d 440 (D.C. Cir. 1958). [Cases: Telecommunications (::=> mo.] carry, vb. 1. To sustain the weight or burden of; to hold or bear <more weight than a single person can carry>. 2. To conveyor transport <carrying the coal from one state to another>. 3. To possess and convey (a firearm) in a vehicle, including the locked glove compartment or trunk ofa car <he carried the guns in his trunk> . The United States Supreme Court adopted this defini tion in interpreting the phrase carries a firearm as used in a statute imposing a mandatory prison term on a person who uses or carries a firearm while commit ting a drug-trafficking crime. Muscarello v. U.S., 524 U.S. 125, 118 S.Ct. 1911 (1998). [Cases: Wills (::=>6.] 4. In a figurative sense, to possess or hold (insurance, etc.) <the decedent did not carry life insurance>. 5. Parlia mentary law. To adopt . In this sense, the verb may be either intransitive <the motion carries> or transi tive (in a passive construction) <the motion is carried>. See ADOPTION (5). 6. To provide funds or credit for the payment of (stock, etc.), often as an advance, for an agreed-on period <the investor carried the stock purchases for eight months>. 7. To absorb the cost of holding or having, usu. temporarily <the business will carry the debt for another quarter>. carry away, vb. To take or move (stolen property, etc.). The traditional count for larceny was that the defen dant "did steal, take, and carry away" the property. A "carrying away" can be a slight movement of the property. See ASPORTATION. [Cases: Larceny (::=> 17; Robbery (::=> 10.] carryback. (1942) Tax. An income-tax deduction (esp. for a net operating loss) that cannot be taken entirely in a given period but may be taken in an earlier period (usu. the previous three years). -Also termed loss carryback; tax-loss carryback. Cf. CARRYOVER. [Cases: Internal Revenue (::=> 3438; Taxation (::=>3515.] carryforward. See CARRYOVER. carrying away. See ASPORTATION. carrying back the date of invention. See ANTEDATING OF A PRIOR-ART REFERENCE. carrying charge. 1. A cost, in addition to interest, paid to a creditor for carrying installment credit. 2. Expenses incident to property ownership, such as taxes and upkeep. carrying cost. See COST (1). carrying value. See BOOK VALUE (1). carryover. (1925) Tax. An income-tax deduction (esp. for a net operating loss) that cannot be taken entirely in a given period but may be taken in a later period (usu. the next five years). -Also termed loss carryover; tax-loss carryover; carryforward; loss carryforward; tax-loss car ryforward. Cf. CARRYBACK. [Cases: Internal Revenue (::=>3438,3439; Taxation (::=>3515.] carryover basis. See BASIS. carta (kahr-t<}). [Latin] Rist. A charter, deed, or other written instrument. Carta de Foresta. See CHARTA DE FORESTA. Carta Forestae. See CHARTA DE FORESTA. Carta Mercatoria (kahr-t<} m<}r-b-tor-ee-<}). Rist. An English statute (enacted in 1303) establishing various rules that favored certain foreign merchants. In exchange for paying customs duties, merchants received extensive trading rights throughout England, the power to export their merchandise, the liberty to dwell where they pleased, and certain legal rights. Also termed Statutum de Nova Custuma. cartbote. See plowbote under BOTE (1). carte blanche (kahrt blahnsh). [French "blank card"] 1. A signed, blank instrument that is filled out at an agent's discretion. 2. Full discretionary power; unlimited authority. cartel (kahr-tel), n. (17c) 1.

discretionary power; unlimited authority. cartel (kahr-tel), n. (17c) 1. A combination of produc ers or sellers that join together to control a product's production or price. 2. An association offirms with common interests, seeking to prevent extreme or unfair competition, allocate markets, or share knowl edge. [Cases: Antitrust and Trade Regulation 3. Int'llaw. An agreement between belligerents about the means ofconducting whatever relations they allow during wartime; esp., such an agreement regarding the exchange of prisoners. Also spelled chartel. cartelize (kahr-td-lIz or kahr-tel-Iz), vb. car trust certificate. See EQUIPMENT TRUST CERTIFI CATE. cartulary (kahr-tyoo-Iair-ee), n. A collection oflegal documents, esp. charters and title deeds to property. carucage (kar-a-kij). [Law Latin] Rist. A tax imposed either on a carucate or on the plows used on the land. Also termed carvage. carucate (kar-a-kayt). [Law Latin] Rist. A measure of land for assessment purposes, varying locally from 96 to 144 acres. This amount was thought to be as much land as one plow with eight oxen could plow in a year. A carucate was used to assess taxes. Also termed carucata; carve; plowland. Cf. HIDE (1); OXGANG. carvage. See CARUCAGE. carve (karv), n. See CARUCATE. carve out, vb. 1. To create an explicit exception to a broad rule. 2. Tax. To separate from property the income derived from the property. carveout, n. (1966) 1. An explicit exception to a broad rule. 2. Tax. For tax purposes, the separation from property of the income derived from the property. ca. sa. See capias ad satisfaciendum under CAPIAS. . CASA. abbr. 1. COURT-APPOINTED SPECIAL ADVOCATE. 2. COURT APPOINTED SPECIAL ADVOCATES. casata (ka-say-ta). Rist. A house with enough land to support one family. casatus (ka-zay-tas). Rist. A vassal or feudal tenant pos sessing a casata. CASA volunteer. Family law. A specially screened and trained child-welfare volunteer appointed by the court to conduct an independent investigation of both the state agency and the family and to submit a report with findings and recommendations . In some jurisdic tions such volunteers are provided for statutorily. They sometimes act as guardians ad litem. The CASA vol unteer usu. (1) provides independent assessment ofthe child's needs, (2) acts as an advocate for the child, and (3) monitors agency decision-making and court pro ceedings. See COURT APPOINTED SPECIAL ADVOCATES. [Cases: Infants C=>205, 208.] case. (13c) 1. A civil or criminal proceeding, action, suit, or controversy at law or in equity <the parties settled the case>. active case. (1949) A case that is still pending. case agreed on. See case stated (1). case at bar. (16c) A case under the immediate consid eration of the court. Also termed case at bench; instant case; present case. See BAR (3). case at bench. See case at bar. case made. See case reserved (1). case offirst impression. (1806) A case that presents the court with an issue oflaw that has not previously been decided by any controlling legal authority in that jurisdiction. case reserved. (18c) 1. A written statement of the facts proved at trial and drawn up and stipulated to by the parties, so that certain legal issues can be decided by an appellate court. Also termed case made; special case. 2. Rist. An agreement between litigants to submit the case to a judge rather than to a jury. "It should have come as no surprise ... that in most cases 'merchants were not fond of juries: For one of the leading measures of the growing alliance between bench and bar on the one hand and commercial interests on the other is the swiftness with which the power of the jury is curtailed after 1790... [Djuring the last years of the eighteenth century American lawyers vastly expanded the 'special case' or 'case reserved; a device designed to submit points of law to the judges while avoiding the effective interven tion of ajury. In England, Lord Mansfield had used a similar procedure to bring about an alliance between common lawyers and mercantile interests." Morton J. Horwitz, The Transformation ofAmerican Law, 1780-1860141-42 (1977). case stated. (17c) 1. A formal written statement of the facts in a case, submitted to the court jointly by the parties so that a decision may be rendered without trial. -Also termed case agreed on. [Cases: Trial C=>368.] 2. Rist. A procedure used by the Court of Chancery to refer difficult legal questions to a com mon-law court . This procedure was abolished in 1852. 3. English law. An appeal from a Magistrates' Court to the Divisional Court ofQueen's Bench on a point of criminal law . After ruling, the magistrate states the facts for the appeal and the Queen's Bench rules on the question of law presented by the magis trate's ruling. congressional-reference case. A request by Congress for the United States Court ofClaims to give an advisory opinion on the merits ofa non pension claim against the United States. See 28 USCA l492, 2509. inactive case. (1981) A pending case that is not pro ceeding toward resolution . This may occur for several reasons, such as non service, want of prose cution, or (in a criminal case) the defendant's having absconded. instant case. See case at bar. present case. See case at bar. reference case. Canadian law. An advisory opinion issued by the Supreme Court of Canada at the request of the executive or legislative branch of the federal government. A reference is exceptional because the opinion interprets, and often resolves, a dispute even though no case or controversy is presented to the court. See, e.g., Reference re Secession ofQuebec, [1998] 2 S.C.R. 217. special case. See case reserved (1). test case. (1894) 1. A lawsuit brought to establish an important legal principle or right. Such an action is frequently brought by the parties' mutual consent on agreed facts -when that is so, a test case is also sometimes termed amicable action or amicable suit. "The suit is spoken of, in the affidavits filed in support of it, as an amicable action, and the proceeding defended on that ground. But an amicable action, in the sense in which these words are used in courts of justice, presupposes that there is a real dispute between the parties concern ing some matter of right. And in a case of that kind it sometimes happens, that, for the purpose of obtaining a decision of the controversy, without incurring needless expense and trouble, they agree to conduct the suit in an amicable manner, that is to say, that they will not embar rass each other with unnecessary forms or technicalities, and will mutually admit facts which they know to be true, and without requiring proof, and will bring the point in dispute before the court for decision, without subjecting each other to unnecessary expense or delay. But there must be an actual controversy, and adverse interests. The amity consists in the manner in which it is brought to issue before the court. And such amicable actions, so far from being objects of censure, are always approved and encouraged, because they facilitate greatly the administration ofjustice between the parties. The objection in the case before us is, not that the proceedings were amicable, but that there is no real conflict of interest between them; that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be." Lord v. Veazie, 49 U.S. 251, 255 (1850) (Taney, c.n 2. An action selected from several suits that are based on the same facts and evidence, raise the same question of law, and have a common plaintiff or a common defendant. Sometimes, when all parties agree, the court orders a consolidation and all parties are bound by the decision in the test case. -Also termed test action. 2. A criminal investigation <the Manson case>. 3. An individual suspect or convict in relation to any aspect of the criminal-justice system <the probation officer said he considers Mr. Jones a difficult case>. 4. An argument <the debater made a compelling case for gun control>. 5. An instance, occurrence, or situation <a case of mistaken identity> <a terminal case ofcancer>. 6. See trespass on the case under TRESPASS <the actions of trover and case are not entirely defunct>. case abstract. See CASE NOTE. case agreed on. See case stated (1) under CASE. casebook. (18c) A compilation ofextracts from instruc tive cases on a particular subject, usu. with commentary and questions about the cases, designed as a teaching aid. See SOCRATIC METHOD. Cf. HORNBOOK. casebook method. (1915) An inductive system of teaching law in which students study specific cases to learn general legal principles . Professor Christo pher C. Langdell introduced the technique at Harvard Law School in 1869. The casebook method is now the most widely used form of instruction in American law schools. -Also termed case method; case system; Langdell method. Cf. SOCRATIC METHOD; HORNBOOK METHOD. case brief. See CASE NOTE. case evaluation. 1. Assessment ofa case's strengths and weaknesses, along with the cost of litigation and the amount ofpotential liability or recovery, typically done to decide whether to accept a case or to advise a client or potential client about how to proceed. 2. MEDIATION (1). caseflow. (1957) 1. The movement of cases through the judicial system, from the initial filing to the final appeal. 2. An analysis of that movement. case-in-chief. (1853) 1. The evidence presented at trial by a party between the time the party calls the first witness and the time the party rests. 2. The part of a trial in which a party presents evidence to support the claim or defense. Cf. REBUTTAL (1), (2). caselaw. (1861) The law to be found in the collection of reported cases that form all or part of the body of law within a given jurisdiction. -Also written case law; case-law. -Also termed decisional law; adjudicative law; jurisprudence; organic law. "Case law in some form and to some extent is found wherever there is law. A mere series of decisions of individ ual cases does not of course in itself constitute a system of law. But in any judicial system rules of law arise sooner or later out of the solution of practical problems, whether or not such formulations are desired, intended or consciously recognized. These generalizations contained in, or built upon, past decisions, when taken as normative for future disputes, create a legal system." Karl N. Llewellyn, "Case Law" in 3 Encv. Soc. Sci. 249 (1930). case lawyer. An attorney whose knowledge is largely confined to a specific field ofexpertise. "A working lawyer cannot expect to keep abreast of all this output of ideas, but he can at least study some portion so as to liberalize his views of law and to avoid the reproach of being a mere case lawyer." Lord Wright, The Study of Law, 54 Law Q. Rev. 185, 185 (1938). caseload. (1938) The volume ofcases assigned to a given court, agency, officer, judge, law firm, or lawyer. case made. See case reserved (1) under CASE. case-management order. A court order designed to control the procedure in a case on the court's docket, esp. by limiting pretrial discovery. -Abbr. CMO. [Cases: Federal Civil Procedure (';:::J 1935; Pretrial Pro cedure (';:::J747.] case method. See CASEBOOK METHOD. case note. A short statement summarizing a case, esp. the relevant facts, the issues, the holding, and the court's reasoning. -Sometimes written casenote. -Also termed brief, case brief; case statement; case abstract. case number. The number assigned to a lawsuit when it is filed with the clerk of the court. Each case has 245 a distinct number that distinguishes it from all other suits filed within the jurisdiction. case offirst impression. See CASE. case-or-controversy requirement. (1937) The consti tutional requirement that, for a federal court to hear a case, the case must involve an actual dispute. See CON 'I'ROVERSY (3); advisory opinion under OPINION (1). [Cases: Federal Courts ~~12.] 'The courts of the United States do not sit to decide ques tions of law presented in a vacuum, but only such questions as arise in a 'case or controversy.' The two terms can be used interchangeably, for, we are authoritatively told, a 'controversy,' if distinguishable at all from a 'case,' is distin guishable only in that it is a less comprehensive term, and includes only suits of a civil nature." Charles Alan Wright, The Law of Federal Courts 60 (5th ed. 1994). case plan. A written procedure for the care and man agement of a child who has been removed from his or her home and placed in foster care or in an institution. The case plan includes (1) a description of the place where the child has been placed, (2) a plan for provid ing the child with safe and proper care, and (

of the place where the child has been placed, (2) a plan for provid ing the child with safe and proper care, and (3) a plan for services that will be provided to the child's parents. Each state must have a case-review system formulated to ensure that the child is placed in the least restrictive and most appropriate place and that the plan is in the best interests of the child; the plan must be reviewed every six months. See ADOPTION AND SAFE FAMILIES ACT. [Cases: Infants case reserved. See CASE. case stated. See CASE. case statement. See CASE NOTE. case system. See CASEBOOK METHOD. case-within-a-case rule. Torts. lhe requirement that a legal-malpractice- action plaintiff show that, but for the attorney's negligence, the plaintiff would have won the case underlying the malpractice action. [Cases: Attorney and Client (;=>112.] cas fortuit (kah for-twee). [French "fortuitous case"] Insurance. A unforeseeable event; an inevitable accident; FORTUITOUS EVENT. cash, n. (16c) 1. Money or its equivalent. 2. Currency or coins, negotiable checks, and balances in bank accounts. -cash, vb. petty cash. Currency kept on hand for incidental expenditures. cash-against-documents sale. See documentary sale under SALE. cash-and-carry clause. Int'llaw. A regulation that, before U.S. involvement in World War II, allowed bel ligerent countries to pay cash for goods whose export was prohibited. Formally, this regulation was entirely neutral, but in practice it favored Great Britain. cash bail. See BAIL (1). cash-basis accounting method. See ACCOUNTING METHOD. cashier cash book. An account book of all cash received and paid out by a business. cash budget. A period-by-period schedule of a business's opening cash on hand, estimated cash receipts, cash disbursements, and cash balance . A cash budget is used to project a business's cash receipts and disburse ments over some future period. cash collateral. See COLLATERAL. cash cycle. The time it takes for cash to flow into and out of a business, such as the time between the purchase of raw materials for manufacture and the sale of the finished product. cash discount. See DISCOUNT. cash dividend. See DIVIDEND. cash equivalent. A short-term security that is liquid enough to be considered equivalent to cash. cash-equivalent doctrine. Tax. The doctrine requiring income to be reported even ifit is not cash, as when the taxpayer barters to receive in-kind payments. [Cases: Internal Revenue (;=>3116, 37l4.] cash-expenditure method. Tax. A technique used by the IRS to reconstruct a taxpayer's unreported income by comparing the amount spent on goods and services during a given period with the income reported for that period . If the expenditures exceed the reported revenue, the IRS treats the difference as taxable income. [Cases: Internal Revenue (>4530.1.] cash flow. (1954) 1. The movement of cash through a business, as a measure of profitability or liquidity. 2. The cash generated from a business or transaction. 3. Cash receipts minus cash disbursements for a given period. Sometimes written cash flow. cash flow per common share. The cash flow from oper ations minus preferred stock dividends, divided by the number of outstanding common shares. discounted cash flow. A method ofevaluating a capital investment by comparing its projected income and costs with its current value . Discounted cash flow is used to determine the value of a company by cal culating the present value of its future cash flows. In theory, the value of the corporation's assets equals the present value ofthe expected cash flow generated by those assets. -Also termed discounted-cash-flow method. Abbr. DCF; DCF method. incremental cash flow. The net increase in cash flow attributable to a particular capital investment. negative cash flow. A financial situation in which cash outflow exceeds cash inflow. See INSOLVENCY. net cash flow. Cash inflow minus cash outflow. cashier, n. 1. One who receives and records payments at a business. 2. A bank's or trust company's executive officer, who is responsible for banking transactions. [Cases: Banks and Banking (;=> 105(3)-109(3),314.] cashier, vb. (16c) To dismiss from service dishonorably <after three such incidents, Jones was cashiered>. 246 cashier's check cashier's check. See CHECK. cashlite. See AMERCEMENT. cash merger. See MERGER. cash-option transaction. Mergers & acquisitions. A pro vision in a merger agreement giving the target com pany's stockholders a choice between receiving either a tax-free exchange of stock or a taxable cash buyout. cash or deferred arrangement. A retirement -plan provi sion permitting an employee to have a certain amount ofcompensation paid in cash or contributed, on behalf ofthe employee, to a profit-sharing or stock-bonus plan. A 401(k) plan is a type of cash or deferred arrange ment. Abbr. CODA. cashout, n. (1971) An arrangement by a seller to receive the entire amount ofequity in cash rather than retain an interest in the property. -cash out, vb. cash-out merger. See cash merger under MERGER. cash-refund annuity. See ANNUITY. cash sale. See SALE. cash surrender value. See VALUE (2). cash tender offer. See TENDER OFFER. cash-transaction report. IRS Form 4789, which requires banks and other financial institutions to report cash transactions above a certain amount. [Cases: Internal Revenue cash value. 1. Seefair market value under VALUE (2). 2. See full cash value under VALUE (2). cash-value option. See OPTION. casing. Oil & gas. The pipe in a wellbore hole, cemented into place to prevent pollution and to protect the hole. intermediate casing. Casing that protects deep forma tions against pollution from drilling and producing operations. production casing. Wellbore pipe through which oil and gas is produced . Production casing is the last pipe set in the hole. surface casing. Casing that protects groundwater against pollution from drilling and producing oper ations. Surface casing is the first pipe set in the hole. casinghead gas. Oil & gas. Natural gas in a liqUid solution with crude oil, produced at the casinghead (top) ofa oil well. CaSinghead gas separates from the oil at the time ofproduction or shortly afterward. casing point. Oil & gas. The point at which a well has been drilled to the desired depth and the owners must decide whether to place production pipe ("casing") in the hole to complete and equip the well for produc tion. cassare (k<1-sair-ee), vb. [Law Latin fr. Latin cassus "void"] Hist. To quash or nullify. Cassare was usu. cassation (ka-say-sh<1n), n. A quashing. See COURT OF CASSATION. cassetur billa (k<1-see-t<1r bit-<1). [Latin "that the bill be quashed"] Hist. 1. A judgment quashing a plea in abate ment. 2. A plaintiff's on-the-record admission that a defendant's plea in abatement cannot be avoided . This statement discontinues the action. Also termed billa cassetur; quod billa cassetur. cassetur breve (k<1-see-t<1r bree-vee). [Latin "that the writ be quashed"] Hist. A judgment quashing an action begun by writ. CASSIS/BIB. Patents. A U.S. Patent and Trademark Office database ofbibliographies relating to patents, sorted by their classification . CASSIS stands for Clas sification and Search Support Information System. Cf. CASSIS/CLASS. CASSIS/CLASS. Patents. A U.S. Patent and Trademark Office database ofpatents sorted by classification, avail able at any PTO Depository Library. Cf. CASSIS/BIB. cast, vb. To formally deposit (a ballot) or Signal one's choice (in a vote) <most voters cast their ballots for write-in candidates>. cast a doud on, vb. Patents. Create doubt about (a patent, esp. its validity). castigatory (kas-ti-g<1-tor-ee). Hist. A device for punish ing scolds by repeatedly plunging them underwater. This device is mentioned by the ancient Saxons (scealf ing stole) and in Domesday Book (cathedra stercora lis). It was also used to punish bakers and brewers by ducking them into "stinking water" (stercore), possibly into a midden. -Also termed ducking stool; cucking stool; trebucket. See SCOLD. Cf. BRANKS. "[AI common scold, ... if convicted, shall be sentenced to be placed in a certain engine of correction called the trebucket, castigatory, or cucking stool, which in the Saxon language signifies the scolding stool; though now it is fre quently corrupted into ducking stool, because the residue of the judgment is, that, when she is so placed therein, she shall be plunged in the water for her punishment." 4 William Blackstone, Commentaries on the Laws ofEngland 169 (1769). casting vote. See VOTE (1). cast-iron-pipe doctrine. See DIVIDEND-CREDIT RULE. castle doctrine. (1892) Criminal law. An exception to the retreat rule allOWing the use ofdeadly force by a person who is protecting his or her home and its inhab itants from attack, esp. from a trespasser who intends to commit a felony or inflict serious bodily harm. Also termed dwelling defense; defense ofhabitation. See RETREAT RULE. [Cases: Homicide C=>747, 760.] castle-guard, n. Hist. 1. The protection ofa castle. 2. A form of knight-service in which a tenant must protect the lord '8 castle. 3. The tenure giving rise to this knight service. 4. A tax once imposed in lieu of this knight service. 5. The territory that is chargeable with the tax imposed in lieu of the knight-service. -Also termed (in senses 2-5) ward. used in reference to voiding an agreement, law, or writ. "Castleguard is an imposition upon such of the king's See CASSETUR BILLA; CASSETUR BREVE. subjects as dwell within a certain compass of any castle, 247 to the maintenance of such as watch and ward it. It is some times used for the circuit itself which is inhabited by such as are subject to this service." William Rastell, Termes de laLey70(lstAm.ed.1812). casual, adj. 1. (Of employment) occurring without reg ularity; occasional <a casual employee>. See casual employment under EMPLOYMENT. 2. (Of an event or occurrence) not expected, foreseen, or planned; fortu itous <a casual deficit>. casual affray. See CHANCE-MEDLEY. casual condition. See CONDITION (2). casual defi<;it. An unforeseen shortfall offunds. casual ejector. See EJECTOR. casual employment. See EMPLOYMENT. casual negligence. See NEGLIGENCE. casualty. (I5c) 1. A serious or fatal accident. 2. A person or thing injured, lost, or destroyed. casualty gain. Insurance. The profit realized by an insured when the benefits paid exceed the insured property's adjusted value. casualty insurance. See INSURANCE. casualty loss. See LOSS. casualty pot. Tax. A step in evaluating tax liability in which casualty gains and losses are compared to deter mine whether a net loss or gain has occurred. Cf. MAIN POT. casu consimili (kay-s[y]oo k,m-sim-<l-h), n. [Latin "in a like case"] Hist. A writ of entry allowing the holder of a reversionary interest in land to sue for the return of land alienated by a life tenant or a tenant by the curtesy. -This writ originated in the second Statute of West minster (13 Edw. 1) ch. 24 (1285), which expanded the writs available to litigants by requiring the Chancery to issue a writ for any situation that called for a writ similar to one that had previously issued consimili casu ("in a like case"). Specifically, the statute provided (in Latin) that "as often as it shall happen in chancery that in one case a writ is found, and in a like case [in con simili casu], falling under the same right, and requir ing like remedy, no writ is to be found, the clerks of chancery shall agree in making a writ ...." Many other writs were framed under Westminster 2, but this par ticular writ's close association with the statute led to its taking the generic name. -Also termed consimili casu; entry in casu consimili. See ACTIONES NOMINATAE. casu proviso (kay-s[yJoo pr<l-vI-zoh). [Latin "in the case provided"] Hist. A writ of entry to recover a reversion in land alienated by a tenant in dower, i.e., a widow with a life estate in the alienated land. casus (kay-s<ls). [Latin] 1. A chance accident; an event without human inter

land. casus (kay-s<ls). [Latin] 1. A chance accident; an event without human intervention or fault. Cf. CULPA (1); DOLUS (1). 2. A situation actually contemplated by the legislature in enacting a statute that applies to the sit uation. -In this sense, the term is opposed to casus omissus. Cf. CASUS OMISSUS. casus omissus casus amissionis (kay-s<ls <l-mis[h]-ee-oh-nis). [Latin "the occasion of the loss"] Hist. The circumstances under which a document is lost or destroyed. -In an action to prove the contents of a lost instrument, the circumstances under which a document was lost was required evidence. Lost documents are now covered by Federal Rule of Evidence 1004(1). casus belli (kay-s<ls bel-I). [Latin] An act or circumstance that provokes or justifies war. casus foederis (kay-s<ls fed-<lr-is). [Latin "the case ofthe treaty" or "the case of the agreement"] 1. inCllaw. A provocative act by one nation toward another, entitling the latter to call upon an ally to fulfill the terms ofan alliance. 2. A clause within a treaty of alliance speci fying such provocative acts. 3. Contracts. A case or an event falling within the terms ofa contract. casus fortuitus (kay-s<ls for-t[y]oO-<l-tds). [Latin] 1. A fortuitous event. 2. A loss not attributable to human fault. casus improvisus (kay-s<ls im-pr<l-VI-Z<lS). [Latin] Hist. An unforeseen case; a case not provided for. "Casus improvisus .... This phrase is of frequent occur renee, and admits of varied illustration. Thus, if an Act of Parliament has been passed for the removal of some incon' venience, or the suppression of some evil, and specifies the circumstances or cases in which it is to have application, and a case occurs which is not specified by the Act, in which, nevertheless, the application of the Statute would be beneficial, this is a casus Improvisus, and neither the procedure nor the provisions of the Act can be applied to it. The Statute cannot be strained so as to be made applicable to a case for which it does not provide. Statutes, however, which are purely remedial are construed liberally. and are often extended to cases similar to those mentioned in the Act, although such cases do not fall within the letter of the enactment." John Trayner, Trayner's Latin Maxims 70 (4th ed. 1894). casus incogitati (kaY-SdS in-koj-i-tay-n). [Law Latin] Hist. Circumstances unthought of. -Circumstances that were not otherwise addressed in an instrument could be determined on equitable grounds. casus insolitus (kay-s<ls in-sol-d-t<ls). [Latin] Hist. An unusual circumstance; an unusual event. casus major (kay-s<ls may-jdr). [Latin] An extraordinary casualty. casus male inclusus (kay-s<ls mal-ee in-kloo-s<ls). [Latin "case wrongly included"] A situation literally provided for by a statute or contract, but wrongly so because the provision's literal application has unintended or absurd consequences. casus omissus (kay-sas d-mis-<ls). [Latin "case omitted"] A situation not provided for by a statute or contract, and therefore governed by caselaw or new judge-made law. Cf. CASUS (2). PI. casus omissi. [Cases: Statutes 186.] "At times a state ofwar appears to exist between the courts and the parliamentary draftsman. The courts decline to come to the rescue when a casus omissus is revealed, so words appropriate to cover the casus omissus are added to the statute. More frequently the draftsman gets in fIrst and, anticipating a strict construction by the courts coupled with a total lack of sympathy if there should happen to be 248 casus rarior a casus omissus, he produces a statute which is nothing less than horrific in its detail." Rupert Cross, Statutory Interpretation 11-12 (1976). casus rarior (kay-sas rair-ee-or). Hist. An exceptional case. PI. casus rarjores. catalla (ka-tal-i"l). [Law Latin "chattels"] Hist. 1. CHATTEL. Also termed catals. "Catals (catalla) alias chatels, cometh of the Normans. For . all movable goods . are called chatels: the contrary whereof is (fief) which we do call fee." John Cowell, The Interpreter (1607). 2. Cattle used for plowing. cataUa oUosa (b-tal-a oh-shee-oh-sa). [Law Latin "nonworking chattels"] Hist. 1. Chattels that are not animals. 2. Animals not used for plowing or pulling plows or carts (averia carucae). catallis captis nomine districtionis (ka-tal-is kap-tis nahm-a-nee di-strik-shee-oh-nis). [Latin "chattels taken in name of distress"] Hist. A writ permitting a landlord who is owed rent to distrain (Le., seize) the doors, windows, and gates ofthe tenant's house. catallis reddendis (ka-tal-is ri-den-dis). See DE CATALLIS REDDEN DIS. catals. See CATALLA. cataneus. See CAPITANEUS. catch-all, adj. Broad; widely encompassing <the catch all factor allows the jury to consider all circumstances extenuating the gravity of the crime>. catch-all, n. See BROADENING STATEMENT. catching bargain. See BARGAIN. catchpoll (kach-pohl). Hist. A sheriff's deputy or bailiff. Also spelled catchpol; catchpole. "Catchpol ... (One that catches by the Poll) Though now taken as a word of Contempt, yet in ancient times, it was used, without reproach, for such as we now call Sergeants of the Mace, Bailiffs, or any other that use to Arrest Men upon any Action." Thomas Blount, Nomo-Lexicon: A Law Dictionary (1670). categorical question. See QUESTION (1). cater cousin (kay-tdr). A distant relative . The term derives from the French quatrecousin, meaning a cousin in the fourth degree. cathedral. Eccles. law. The principal church ofa diocese, in which the bishop's throne, or cathedra, is situated. cathedral preferment. Eccles. law. In a cathedral church, a deanery, archdeaconry, canonry, or other office below the rank ofbishop. catholic creditor. See CREDITOR. Catoniana regula (b-toh-nee-ay-nd reg-ya-Ia). See REGULA CATONIANA. cats and dogs. Slang. 1. ~onperforming securities. 2. Highly speculative securities. "Wall Street disdainfully regards most penny stocks as cats and dogs, a popular phrase in use since 1879 to describe low-priced, often worthless, speculative securities. The Single word dog also means a worthless security, and the related pup meant a low-priced, inactive stock during the 1940s and 19505." Kathleen Odean, High Steppers, Fallen Angels, and Lollipops: Wall Street Slang 10 (1988). cattle rustling. The stealing ofcattle. cattle-trespass. See TRESPASS. caucus (kaw-k;)s), n. (lSc) 1. Representatives from a political party who assemble to nominate candidates and decide party policy. [Cases: Elections 2. A meeting of a group, usu. within a deliberative assembly, of people aligned by party or interest to formulate a policy or strategy. -caucus, vb. 'The term caucus also sometimes applied to a similar meeting of all the known or admitted partisans of a par ticular position on an important issue ...... in a convention or any other deliberative assembly who meet to plan strategy toward a deSired result within the assembly. Such a meeting may be held on the presumed informal under standing that those who attend will follow the deciSions of the caucus." Henry M. Robert, Robert's Rules of Order Newly Revised 59, at 588 (10th ed. 2000). separate caucus. A confidential mediation session that a mediator holds with an individual party to elicit settlement offers and demands . When separate caucuses are used, the mediator typically shuttles between the two (or more) sides ofa dispute to com municate offers and demands. Formerlv, ABA Model Rule of Professional Responsibility 2:2 (governing when a lawyer could act for more than one client or as an intermediary between parties) applied when a lawyer acted as a mediator. Although the rule was deleted from the Model in 2002, many states have similar rules in effect. The rule requires a lawyer acting as an intermediary to inform the parties about mediation and the mediator's role, to act impartially, and to have a good-faith belief that the matter can be resolved in all parties' best interests. causa (kaw-za), n. [Latin]l. CAUSE (1). "One of the vaguest terms of the Roman juristic language. Starting from the basic meaning of cause, reason, induce ment, the jurists use it in very different senses .... Causa is the reason for which some judicial measures (actions, exceptions, interdicts) were introduced by the praetor .... Sometimes causa is roughly identical with animus when it alludes to the subjective motive, intention, or purpose of a person." Adolf Berger, Encyclopedic Dictionary ofRoman Law 382-83 (1953). causa causans (kaw-za kaw-zanz). An immediate or effective cause. See immediate cause under CAUSE (1). causa jactitationis maritagii (kaw-za jak-ti-tay-shee oh-nis mar-a-tay-jee-I). [Latin "cause of assertion of marriage") See JACTITATION OF MARRIAGE. causa matrimonii praelocuti (kaw-za ma-tra-moh nee-I pree-Id-kyoo-tr). [Latin "cause of prearranged marriage"] Hist. A writ ofentry available to a woman who had given land to a suitor who refused to marry her within a reasonable time. Also termed entry for marriage in speech. causa proxima (kaw-za prok-si-m<l). The immediate or latest cause. See proximate cause under CAUSE. causa remota (kaw-z;l ri-moh-t;l). A remote or indirect cause. See remote cause under CAUSE. causa sine qua non (kaw-z;l sl-nee kway non also sin-ay kwah nohn). A necessary cause; the cause without which the thing cannot be or the event would not have occurred. See but-for cause under CAUSE (1). 2. Roman & civil law. A consideration or inducement. 'The revolution of the ancient law of Contract was con summated when the Praetor of some one year announced in his Edict that he would grant equitable actions upon Pacts which had never been matured at all into Contracts, provided only that the Pacts in question had been founded on a consideration (causa)." Henry S. Maine, Ancient Law 28 (l7th' ed. 1901). "Article 1131 of the French Civil Code provides that: 'L'obligation sans cause, ou sur une fausse cause, ou sur une cause illicite, ne peut avoir aucun effet.' This cause or causa is a synonym for consideration, and we find the terms used interchangeably in the earlier English authori ties." John Salmond, Jurisprudence 361 (Glanville L. Williams ed., 10th ed. 1947). causafalsa (fal-s;l [orfawl-s;l] kaW-Z;l). Seefalsa causa. causa non secuta (kaW-Z;l non s;l-kyoo-t;l). [Latin "the (expected) consideration not having followed"] Roman law. A consideration that has failed; failure ofconsideration. falsa causa (fal-s;l [orfawl-s;l] kaw-z;l). [Latin "mistaken reason or motive"] Roman law. Falsity of consider ation. This might result from several things, such as a mistaken reason for making a gift or bequest. Also termed (esp. in civil law) causa falsa. causa causae est causa causati (kaw-z;l kaw-zee est kaw-z;l kaw-zay-tI). [Latin "the cause of a cause is the cause of the thing caused"]. Torts. The principle that the cause of the cause (rather than only the immedi ate cause) should also be considered as the cause of the effect. causa cognita (kaw-z;l kog-ni-t;l). [Latin] Hist. After investigation; the cause (or facts) having been ascer tained. Cf. POST CAUSAM COGNITAM. "Formerly, inhibitions were not granted except causa cognita (although a different rule now prevails), because they imposed a restraint on the full exercise of the rights of property; and in our own time decrees of divorce or judicial separation are not granted, except on inquiry into the facts, and cause shown warranting such orders." John Trayner, Trayner's Latin Maxims 71-72 (4th ed. 1894). causa data causa non secuta (kaW-Z;l day-t;l kaw-Z;l non si-kyoo-t;l). [Latin] Roman law. The consideration having been

kaw-Z;l non si-kyoo-t;l). [Latin] Roman law. The consideration having been given but the counterpart not having followed. The phrase appeared in reference to con sideration promised for an act that never took place e.g., an advance payment for work not done, or a gift given in contemplation ofmarriage before the wedding was called off. See CONDICTIO. causa debendi (kaw-z;l di-ben-dI). [Latin] Hist. The grounds ofdebt. causa et modus transferendi dominii (kaw-z;l et moh-d;ls trans-f;lr-en-dI d;l-min-ee-I). [Law Latin] Hist. The title and the manner of transferring property. -Also (erroneously) spelled causa et modus transferrendi dominii. causa falsa. Seefalsa causa under CAUSA (2). causa jactitationis maritagii (kaw-z;l jak-ti-tay-shee oh-nis mar-;l-tay-jee-I). [Latin "cause of assertion of marriage"] See JACTITATION OF MARRIAGE. causal (kaw-z;ll), adj. (16c) 1. Of, relating to, or involv ing causation <a causal link exists between the defen dant's action and the plaintiff's injury>. 2. Arising from a cause <a causal symptom>. Cf. CAUSATIVE. causal challenge. See challenge for cause under CHAL LENGE (2). causality (kaw-zal-;l-tee), n. (17c) The principle ofcausal relationship; the relation between cause and effect <the foreseeability test is one of duty and of causality>. Also termed causation. -causal, adj. causa lucrativa. See LUCRATIVA CAUSA. causa matrimonii praelocuti. See CAUSA (1). causam nobis significes quare (kaw-z;lm noh-bis sig nif-;l-seez kwair-ee). [Latin "that you signify to us the cause why"] Hist. A writ ordering a town's mayor to give seisin ofland to a grantee of the king. causa mortis (kaw-z;l mor-tis), adj. Done or made in contemplation ofone's own death. See gift causa mortis under GIFT. causa non secuta. See CAUSA (2). causa promissionis (kaw-z;l pr;l-mish-ee-oh-nis). Eccles. law. The doctrine that an informal undertaking does not oblige ifit lacks a good cause. causa proxima. See CAUSA (1). causare (kaw-zair-ee), vb. [Law Latin fro Latin causari "to litigate"] To litigate; to show cause against. causa remota. See CAUSA (1). causa scientiae (kaw-z;l sI-en-shee-ee). [Law Latin] Scots law. Cause ofknowledge. The phrase typically referred to a witness's basis for drawing a particular conclusion, esp. in a case involving scientific expertise. causa sine qua non. See CAUSA (1). causation (kaw-zay-sh;ln). (17c) 1. The causing or pro ducing ofan effect <the plaintiff must prove causation>. 2. CAUSALITY. "Here is the key to the juridical treatment of the problems of causation. We pick out the cause which in our judgment ought to be treated as the dominant one with reference, not merely to the event itself, but to the jural consequences that ought to attach to the event." Benjamin Cardozo, The Paradoxes ofLegal Science 83 (1928). negative causation. Securities. The defense that part of the plaintiff's damages were caused by factors other than the depreciation in value ofthe securities result ing from registration-statement defects . Ifnegative causation is proved, the plaintiff's damages should be reduced. 15 USCA 77k(e). [Cases: Securities Regula tion C=>2S.21(S).] transaction causation. Securities. The fact that an investor would not have engaged in a given transaction 250 causative if the other party had made truthful statements at the required time. [Cases: Securities Regulation 60.47.] causative (kaw-z;:Hiv), adj. 1. Effective as a cause or producing a result <causative factor of the accident>. 2. Expressive of causation <the causative relationship between drinking and assault>. Cf. CAUSAL. causator (kaw-zay-t.n), n. [Latin "promoter of litiga tion"] Hist. 1. A litigant. 2. A person who manages or litigates a cause for another. cause, n. (Be) 1. Something that produces an effect or result <the cause ofthe accident>. "It has been said that an act which in no way contributed to the result in question cannot be a cause of it; but this, of course, does not mean that an event which might have happened in the same way though the defendant's act or omission had not occurred, is not a result of it. The question is not what would have happened, but what did happen." Joseph H. Beale, The Proximate Consequences of an Act, 33 Harv. L. Rev. 633, 638 (1920). but-for cause. (1924) The cause without which the event could not have occurred. Also termed actual cause; cause in fact;factual cause. concurrent cause. (17c) One oftwo or more causes that Simultaneously produce a result. contributing cause. A factor that -though not the primary cause plays a part in prodUcing a result. cooperative cause. Archaic. A person who is contribu torily or comparatively negligent. direct and proximate cause. See proximate cause. direct cause. See proximate cause. efficient adequate cause. See proximate cause. efficient cause. See proximate cause. efficient intervening cause. See intervening cause. efficientproximate cause. See proximate cause. factual cause. See but-for cause. first cause. See prOXimate cause. immediate cause. (16c) The last event in a chain of events, though not necessarily the proximate cause of what follows. -Also termed effective cause. initial cause. See proximate cause. intervening cause. (17c) An event that comes between the initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury. -If the intervening cause is strong enough to relieve the wrongdoer of any liability, it becomes a supersed ing cause. A dependent intervening cause is one that is not an act and is never a superseding cause. An independent intervening cause is one that operates on a condition produced by an antecedent cause but in no way resulted from that cause. Also termed intervening act; intervening agency; interveningforce; independent intervening cause; efficient intervening cause; supervening cause; novus actus interveniens; nova causa interveniens. See superseding cause. [Cases: Negligence (=430.] jural cause. See proximate cause. legal cause. See proximate calise. primary cause. See proximate cause. procuring cause.!. See proximate cause (2). 2. Real estate. The efforts of the agent or broker who effects the sale of realty and who is therefore entitled to a commission. [Cases: Brokers (:::::.'53.] proximate cause. (17c) 1. A cause that is legally suf ficient to result in liability; an act or omission that is considered in law to result in a consequence, so that liability can be imposed on the actor. [Cases: Negli gence (=>375.] 2. A cause that directly produces an event and without which the event would not have occurred. [Cases: Negligence (=379,385.] Also termed (in both senses) direct cause; direct and proxi mate cause; efficient proximate calise; efficient cause; effiCient adequate cause; initial cause;jirst cause; legal cause; procuring cause; producing cause; primary cause;jural cause. Cf. (in sense 2) remote cause. 'The four 'tests' or 'clues' of proximate cause in a criminal case are (1) expediency, (2) isolation, (3) foreseeability and (4) intention." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 823 (3d ed. 1982). "'Proximate cause' -in itself an unfortunate term is merely the limitation which the courts have placed upon the actor's responsibility for the consequences of the actor's conduct. In a philosophical sense, the consequences of an act go forward to etern ity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would 'set society on edge and fill the courts with endless litiga tion.' [North v. Johnson, 58 Minn. 242, 59 N.W. 1012 (1894).] As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law isjustified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea ofjustice or policy." W. Page Keeton et aI., Prosser and Keeton on Torts 41, at 264 (5th ed. 1984). remote cause. (16c) A cause that does not necessarily or immediately produce an event or injury. C proxi mate cause (2). [Cases: Negligence (=383.] sole cause. (16c) The only cause that, from a legal viewpOint, produces an event or injury. -If it comes between a defendant's action and the event or injury at issue, it is treated as a superseding cause. [Cases: Negligence (=431.] "When this one dominant cause is found it is treated as the 'sole cause' for the purposes of the particular case, even if it might not be so treated in a different kind of cause of action. A 'sole cause' which intervenes between defendant's act and the result in question is spoken of as a 'superseding cause.' .. The phrase 'sole cause,' meaning the only cause which will receive juridical recognition for the purposes of the particular case, is convenient to give emphaSis to three points: (1) If defendant's act was the sole cause of the death or other socially-harmful occurrence, it is by definition a proximate cause thereof; (2) if something other than his act was the sole cause of the harm there need be no further inquiry so far as he is concerned: (3) it is not necessary that defendant's act should have been the 251 sole cause of the harm, -which is merely another form of stating that a contributory cause is sufficient." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 781-82 (3d ed. 1982). superseding cause. (1891) An intervening act or force that the law considers sufficient to override the cause for which the original tortfeasor was responsible, thereby exonerating that tortfeasor from liability. Also termed sole cause. Cf intervening cause. [Cases: Negligence C::.:>431.] supervening cause. See intervening cause. unavoidable cause. A cause that a reasonably prudent person V\;ould not anticipate or be expected to avoid. 2. A ground for legal action <the plaintiff does not have cause to file suit>. good cause. (I6c) A legally sufficient reason . Good cause is often the burden placed on a litigant (usu. by court rule or order) to show why a request should be granted or an action excused. '{he term is often used in employment-termination cases. -Also termed good cause shown; just cause; lawful cause; sufficient cause. "Issues of 'just cause,' or 'good cause,' or simply 'cause' arise when an employee claims breach of the terms of an employment contract providing that discharge will be only for just cause. Thus, just cause is a creature of contract. By operation of law, an employment contract for a definite term may not be terminated without cause before the expi ration of the term, unless the contract provides otherwise." Mark A. Rothstein et aI., Employment Law 9.7, at 539 (1994). probable cause. See PROBABLE CAUSE. 3. A lawsuit; a case <the court has 50 causes on the motion docket>. preferred cause. A case that a court may for good reason accelerate and try ahead ofother cases. Also termed preference case; preference cause. [Cases: Trial 13,12.] short cause. A case that requires little time to try, usu. half a day or less. -Also termed short-cause trial. [Cases: Trial C=13,12.] 4. CAUSA (2). cause, vb. To bring about or effect <dry conditions caused the fire>. cause-and-prejudice rule. (1977) Criminal law. The doctrine that a prisoner petitioning for a federal writ of habeas corpus on the basis ofa constitutional challenge must first show that the claim rests on either a new rule of constitutional law (one that was unavailable while the case was heard in the state courts) or a fact that could not have been uncovered earlier despite due dili gence' and then show by clear and convincing evidence that if the constitutional error had not occurred, the prisoner would not have been convicted. 28 USCA 2254(e)(2) . This is an exception to the procedural default doctrine. Before 1996, the cause-and-prejudice rule allowed federal courts to grant relief on the basis ofa constitutional challenge that was not presented to the trial if the prisoner showed good cause for failing causidicus to make the challenge at trial, and also showed that the trial court's error actually prejudiced the prisoner. [Cases: Criminal Law ("r,1438; Habeas Corpus 404-409.] cause celi~bre (kawz sa

438; Habeas Corpus 404-409.] cause celi~bre (kawz sa-Ieb or kawz say-Ieb-ra). [French "celebrated case"] (I8c) A trial or decision in which the subject matter or the characters are unusual or sensa tional <the O.J. Simpson trial was a cause celebre in the 1990s>. cause in fact. See but-for cause under CAUSE (1). cause lawyering. The practice ofa lawyer who advocates for social justice by combining the activities oflitiga tion, community organizing, public education, and lobbying to advance a cause past its current legal lim i tations and boundaries. -Also termed activist lawyer ing; progressive lawyering; radical lawyering. See social justice under JUSTICE. Cf. PUBLIC-INTEREST LAW. cause list. See DOCKET (2). cause ofaction. (I5c) 1. A group ofoperative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person; CLAIM (4) <after the crash, Aronson had a cause of action>. [Cases: Action 1,2.] "What is a cause of action? Jurists have found it difficult to give a proper definition. It may be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be (a) a primary right of the plaintiff actually violated by the defendant; or (h) the threatened violation of such right, which violation the plaintiff is entitled to restrain or prevent, as in case of actions or suits for injunction; or (e) it may be that there are doubts as to some duty or right, or the right beclouded by some apparent adverse right or claim, which the plaintiff is entitled to have cleared up, that he may safely perform his duty, or enjoy his property." Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 170 (2d ed. 1899). 2. A legal theory of a lawsuit <a malpractice cause of action>. Cf. RIGHT OF ACTION. Also termed (in senses 1 & 2) ground ofaction. new cause ofaction. A claim not arising out of or relating to the conduct, occurrence, or transaction contained in the original pleading . An amended pleading often relates back to the date on which the original pleading was filed. Thus, a plaintiff may add claims to a suit without facing a statute-of-limitations bar, as long as the original pleading was timely filed. But if the amended pleading adds a claim that arises out ofa different transaction or occurrence, or out of different alleged conduct, the amendment does not relate back to the date on which the original pleading was filed. Fed. R. Civ. P. 15(c. [Cases: Limitation of Actions C=127.) 3. Loosely, a lawsuit <there are four defendants in the pending cause ofaction>. -Abbr. COA. cause-of-action estoppel. See COLLATERAL ESTOPPEL. causidicus (kaw-zid-<)-k<)s), n. [Latin "pleader"] Roman law. A speaker or pleader who pleaded cases orally for others. Cf. ADVOCATUS. 252 cautio cautio (kaw-shee-oh), n. [Latin "security"] Roman & civil law. 1. Security usu. given to ensure the performance ofan obligation. See BAIL (1); BOND (2). 2. A surety. PI. cautiones (kaw-shee-oh-neez). cautio fidejussoria (kaw-shee-oh fI-dee-p-sor-ee-a). [Latin] Security given by a third party in a contract offidejussio. See FIDEJUSSION. cautio judicatum solvi (kaw-shee-oh joo-di-kay-tam sol-vI). [Latin] A plaintiff's security for court costs. Also spelled cautio judicatam solvi. (Cases: Costs 105.] cautio Muciana (kaw-shee-oh myoo-shee-ay-na). (Latin "security introduced by Mucius Scaevola"] Security given by an heir or legatee to obtain imme diate possession of a conditional inheritance. -The condition in the will usu. required an heir to refrain from doing some act, such as marriage or overseas travel. cautio pigneratitia (kaw-shee-oh pignar-a-tish [eel-a). [Latin "security by pledge"] Security given by pledging goods. -Also spelled cautio pignera ticia; cautio pignoratitia. Cf. actio pigneratitia under ACTIO. cautio pro expensis (kaw-shee-oh proh ek-spen-sis). [Latin "security for costs"] Security for court costs. [Cases: Costs C~105.] cautio usufructuaria (kaw-shee-oh yooz-ya-frak chooair-ee-a). [Latin "tenant's security"] Security given by a usufructuary or tenant for life or a term of years against waste of the enjoyed property. See USUFRUCT. caution (kay-sh;m). Civil & Scots law. 1. Security given to ensure performance ofsome obligation. See JURATORY CAUTION (2). 2. The person who gives the security; a cautioner. See BAIL (4). cautionary instruction. See JURY I~STRUCTION. cautione admittenda. See DE CAUTIONE ADMITTENDA. cautioner (kaw-shan-ar or [in senses 2 and 3] kay shan-arlo 1. A person who cautions or warns. 2. Civil & Scots law. A person who puts up security to ensure the performance of some obligation. 2. Scots law. A personal security. caution money. See EARNEST MONEY. cautionry (kay-shan-ree), n. Scots law. 1he obligation to act as surety for another. c.a.v. abbr. CURIA ADVISARI VULT. caveat (kav-ee-aht or kay-vee-at or kavee-at). [Latin "let him or her beware"] (l6c) 1. A warning or proviso <he sold the car to his friend with the caveat that the brakes might need repairs>. caveat actor (ak-tor). [Latin]l.et the doer, or actor, beware. caveat emptor (emp-tor). [l.atin "let the buyer beware"] A doctrine holding that purchasers buy at their own risk. -Modern statutes and cases have greatly limited the importance ofthis doctrine. [Cases: Sales C:::>41, 167,269; Vendor and Purchaser ~37.] "It [caveat emptor] is one of that tribe of anonymous Latin maxims that infest our law ... they fill the ear and sound like sense, and to the eye look like learning; while their main use is to supply the place of either or both." Gulian C. Verplanck, An Essay on the Doctrine of Contracts 218 (1825). "Caveat emptor is the ordinary rule in contract. A vendor is under no duty to communicate the existence even of latent defects in his wares unless by act or implication he represents such defects not to exist." William R. Anson, Principles ofthe Law ofContract 245 (Arthur l. Corbin ed., 3d Am. ed. 1919). ''This action of unfair competition is the embodiment in law of the rule of the playground -'Play fair!' For generations the law has enforced justice .... The maxim caveat emptor is founded on justice; the more modern rule that compels the use of truth in selling goods is founded on fairness. It conflicts with the rule of caveat emptor." Harry D. Nims, The Law of Unfair Competition and TradeMarks 25 (1929). caveat venditor (ven-di-tor). [l.atin] l.et the seller beware. [Cases: Sales ~269.1 caveat viator (vI-aytor). [Latin "let the traveler beware"]. The duty ofa traveler on a highway to use due care to detect and avoid defects in the way. 2. A formal notice or warning given by a party to a court or court officer requesting a suspension of pro ceedings <the decedent's daughter filed a caveat stating the facts on which her will contest is based>. 3. Under the Torrens system ofland titles, a formal notice ofan unregistered interest in land. -Once lodged with the register ofdeeds, this notice prevents the register from recording any dealing affecting the estate or the interest claimed. See TORRENS SYSTEM. [Cases: Records 9(13.1).] caveat, vb. caveatable (kay-vee-at-d-bdl), adj. Ofor relating to a legal or equitable interest that is protectable by a caveat. See CAVEAT (2), (3). caveatee (kay-vee-at-ee). One whose interest is chal lenged by a caveat. caveator (kay-veeay-tdr). One who files a caveat, esp. to challenge the validity of a will; CONTESTANT (1). C.B. abbr. 1. COMMON BENCH. 2. Hist. Chief Baron of the Exchequer. CBA. abbr. COLLECTIVE-BARGAINING AGREEMENT. CBO. abbr. CONGRESSIONAL BUDGET OFFICE. CBOE. abbr. CHICAGO BOARD OPTIONS EXCHANGE. CBOT. abbr. CHICAGO BOARD OF TRADE. CBT. abbr. CHICAGO BOARD OF TRADE. CC. abbr. 1. Circuit, city, civil, or county court. 2. Chancery, civil, criminal, or Crown cases. 3. CIVIL CODE. CCC. abbr. 1. COMMODITY CREDIT CORPORATION. 2. CUSTOMS COOPERATION COUNCIL. C corporation. See CORPORATION. CCPA. abbr. 1. COURT OF CUSTOMS AND PATENT APPEALS. 2. CONSUMER CREDIT PROTECTION ACT. CCR. abbr. UNITED STATES COMMISSION ON CIVIL RIGHTS. CD. abbr. CERTIFICATE OF DEPOSIT. CDC. abbr. CENTERS FOR DISEASE CONTROL AND PRE VENTION. CDFI Fund. abbr. COMMUNITY DEVELOPMENT FINAN CIAL INSTITUTION FUND. CEA. abbr. COUNCIL OF ECONOMIC ADVISORS. ceap (cheep). Hist. Anything for sale; a chattel (usu. cattle) used as a medium for barter. ceapgild (cheep-gild). Hist. A tax or fine paid with an animal rather than with money. Also spelled ceapgilde. cease, vb. 1. To stop. forfeit, suspend, or bring to an end. 2. To become extinct; to pass away. cessation (se-say-shan), n. cease-and-desist letter. A cautionary notice sent to an alleged wrongdoer, describing the offensive activity and the complainant's remedies and demanding that the activity stop. _ A cease-and-desist letter is commonly used to stop or block the suspected or actual infringe ment of an intellectual-property right before litiga tion. Ignoring a cease-and-desist letter may be used as evidence that the infringement was willfuL cease-and-desist order. (1918) A court's or agency's order prohibiting a person from continuing a particu lar course of conduct. See INJUNCTION; RESTRAINING ORDER. [Cases: Administrative Law and Procedure 510; Injunction 202.1.J ceasefire. See TRUCE. cedant. See REINSURED. cede (seed), vb. (18c) 1. To surrender or relinquish. 2. To assign or grant. cession (sesh-an), n. cessionary (sesh-an-er-ee), adj. cedent. See REINSURED. cedula (say-doo-lah). [Spanish] Spanish law. 1. An official document used to identify someone; an identity card. 2. A promissory note. 3. A summons; speci., a citation requiring a fugitive to appear in court to face criminal charges. _ The citation is usu. affixed to the fugitive's door. 4. Hist. A decree of the Spanish Crown; esp., a royal enactment issued by the Council ofCastile or of the Indies. ceiling price. See PRICE. ceiling rent. See RENT (1). cenegild (kay-na-gild). Hist. An expiatory fine paid by a murderer to the victim's relatives. censere (sen-seer-ee), vb. [Latin "to express an opinion"] Roman law. To decree or resolve. censo (sen-soh). [Spanish] Spanish law.!. The census; specif., an official count ofthe people within a nation, state, district, or other political subdivision. 2. Ground rent. 3. An annuity or payment for the use ofland. censo al quitar (ahl kee-tahrl. A redeemable annuity. Also termed censo redimible. censo consignativo (sen-soh kawn-seeg-nah-tee-voh). A transferable annuity backed by a lien on the debtor's real property. -The debtor retains full legal title to the real property. -Also termed censo consignatorio. censo enfiteutico (en-fee-tay-oo-tee-koh). A real property owner's annuity from a usufructuary tenant; an annuity paid from an

oh). A real property owner's annuity from a usufructuary tenant; an annuity paid from an emphyteusis (a long-term lease ofland). See EMPHYTEUSIS. censo redimible. See censo al quitar. censo reservatio (ray-ser-vah-tee-oh). An annuity payable by a grantee of land to the grantor. The annuity is reserved when the land is transferred to the grantee. censor, n. 1. Roman law. (ital.) A Roman officer who acted as a census taker, assessor, and reviewer ofpublic morals. 2. A person who inspects publications, films, and the like for objectionable content. 3. In the armed forces, someone who reads letters and other commu nications and deletes material considered a security threat. censorial, adj. -censorship, n. censor (sen-sar), vb. (1882) To officially inspect (esp. a book or film) and delete material considered offen sive. censorial jurisprudence. See LAW REFORM. censumethidus (sen-s;)-meth-a-das). [Law Latin] See MORTMAIN. Also spelled censumorthidus. censure (sen-shar), n. (14c) An official reprimand or condemnation; harsh criticism <the judge's careless statements subjected her to the judicial council's censure>. censorious, adj. censure, vb. To reprimand; to criticize harshly <the Senate censured the senator for his inflammatory remarks>. census. (l7c) An official count ofpeople made for the purpose ofcompiling social and economic data for the political subdivision to which the people belong. PI. censuses. [Cases: Census federal census. A census of a state or territory, or a portion of either, taken by the Census Bureau of the United States. _ The Constitution (art. 1, 2) requires only a simple count ofpersons for purposes ofapportioning congressional representation among the states. Under Congress's direction, however, the census has evolved to include a wide variety ofinfor mation that is useful to businesses, historians, and others not affiliated with the federal government. [Cases: Census Census Bureau. See BUREAU OF THE CENSUS. centena (sen-tee-na). [fro Latin centum "hundred"] Hist. A district containing 100 freemen, established among the Germans, Franks, Goths, and Lombards. _ The centena corresponds to the Saxon hundred. centenarius centenarius (sen-t;)-nair-ee-;)s). [fr. Latin centum "hun dred-man"] Hist. A petty judge or under-sheriff of a hundred. See HUNDRED. Center for Minority Veterans. A unit in the U.S. Depart ment ofVeterans Affairs responsible for promoting the use ofVA services, benefits, and programs by minority veterans. [Cases: Armed Services (;=102.] Center for Women Veterans. A unit in the U.S. Depart ment ofVeterans Affairs responsible for advising female veterans about VA programs and for evaluating VA programs to ensure access by women. [Cases: Armed Services.(;::::c 102.] center-of-gravity doctrine. Conflict oflaws. The rule that, in choice-of-Iaw questions, the law of the juris diction with the most significant relationship to the transaction or event applies. -Also termed signiftcant relationship theory; grouping-oj-contacts theory. [Cases: Action C::) 17.] Centers for Disease Control and Prevention. An agency in the U.S. Department ofHealth and Human Services responsible for conducting medical research, promot ing disease and injury prevention, and responding to public-health emergencies . This agency was estab lished in 1999 when the Department of Health and Human Services was reorganized. Its forerunner was the Communicable Diseases Center, established in 1964. Abbr. CDC. centesirna (sen-tes-;J-m<l), n. & adj. [Latin "one-hun dredth"] Roman law. The hundredth part; 1%. See USURAE CENTESIMAE. Central American Court of Justice. A court created in 1962 under the 1951 Charter of the Organization of Central American States between Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua, to guarantee the rights of the various republics to maintain peace and harmony in their relations and to prevent recourse to the use of force.This court's pre decessor of the same name was created by a 1908 con vention between the same parties, and dissolved in 1918 when the convention expired. It was re-created in 1962 by the Organization of Central American States. central clearing system. A method offacilitating securi ties transactions in which an agent or subsidiary of an exchange acts as a clearinghouse for member brokerage firms by clearing their checks, settling their accounts, and delivering their payments. Most transactions are reflected solely by computerized book entries, and clearinghouse statements are submitted shOWing the net balance to be paid to reconcile the member firm's accounts. Central Criminal Court. The Crown Court sitting in London, formerly known as the Old Bailey . The Central Criminal Court, created in 1834, has jurisdic tion to try all indictable offenses committed in London. See CROWN COURT. Central Criminal Court Act. See PALMER'S ACT. 254 central government. See Jederal government (1) under GOVERNMENT. Central Intelligence Agency. An independent federal agency that compiles intelligence information, conducts counterintelligence activities outside the United States, and advises the President and the National Security Council on matters offoreign intelligence and national security. It was created by the National Security Act of 1947.50 USC A 401 et seq. -Abbr. CIA. See NATIONAL SECURITY Cm;NCIL. Central Office. English law. The primary office for most of England's courts . The Central Office was estab lished in 1879 to consolidate the masters and associates of the common-law courts, and the clerical functions of the Crown Office of the Queen's Bench Division, the Report and Enrollment offices of the Chancery Division, and several other offices. centumviri (sen-bm-v;)-n), n. pl. [Latin "hundred men"] Roman law. A court with jurisdiction to hear important cases, esp. those relating to inheritances and disputed wills. The court originally consisted of 105 judges 3 from each of the 35 tribes. CEO. abbr. CHIEF EXECUTIVE OFFICER. ceor} (chorl). Hist. A Saxon freeman who either pos sessed no landed property or held land of a thane by paying rent or providing services . After the Norman Conquest, ceorls were reduced to the status of unfree villeins. Under Norman rule, the variant form of the word, churl, became associated with a base peasant, and soon acquired the connotation of a surly, coarse person (hence the modern meaning). -Also termed churl; cirliscus. cepi (see-pI). [Latin] Hist. I have taken . Cepi was often used in a capias return by an arresting sheriff, as in cepi corpus et est in custodia ("I have taken the defendant [or body] and he is in custody"). "But for injuries committed with force to the person, property, or possession, of the plaintiff, the law, to punish the breach of the peace, and prevent its disturbance in the future, provided also a process against the defendant's person . ... This process was called a capias ad respon dendum, which at once authorised the sheriff to take the defendant, and imprison him till the return-day, and then produce him in court.... If by this process the defen dant was arrested, the sheriff returned it with cepi corpus indorsed. But notwithstanding this writ commanded the sheriff to take and secure him till the returnday. he might, at his own peril, have let the defendant continue at large; though he was liable, in case of his non appearance in court, to make amends to the plaintiff in an action for an escape, or to be amerced by the court for the contempt, in not producing the body pursuant to the return he had made on the writ." George Crompton, Practice Common Placed: Rules and Cases of Practice in the Courts of King's Bench and Common Pleas xiii-xliii (3d ed. 1787). cepi corpus et bail (see-pI kor-pdS et bayt). I have arrested and then released the defendant on a bail bond. cepi corpus et committitur (see-pI kor-p;)s et k;)-mit ;)-t;)r). I have arrested and committed the defendant (to prison). 255 cepi corpus etest languidus (see-pI kor-Pds et est lang gWd-dds). I have arrested the defendant and he is sick. This notation in a sheriff's return indicated that the defendant was too sick to be moved safely from the place ofarrest. cepi corpus etparatum habeo (see-pI kor-pds et pd-ray tdm hay-bee-oh). I have made an arrest and am ready to produce the defendant. cepit (see-pit). [Latin] Hist. He took. This was the main verb in a declaration in an action for trespass or replevin. cepit et abduxit (see-pit et ab-duk-sit). [Latin] Hist. He took and led away. This declaration appeared in either a writ of trespass or a larceny indictment for theft of an animal. cepit et asportavit (see-pit et as-por-tay-vit). [Latin] Hist. He took and carried away . This declaration appeared in either a writ of trespass or a larceny indictment for a defendant's wrongfully carrying away goods. cepit in alia loco (see-pit in ay-lee-oh lob-kohl. [Latin] Hist. He took in another place . This phrase appeared in a replevin-action pleading in which a defendant asserted that the property had been taken at a place other than that named in the plaintiff's declaration. CEQ. abbr. COUNCIL ON ENVIRONMENTAL QUALITY. cerage (seer-ij). See WAX SCOT. cera impressa (seer-d im-pres-d). [Latin "impressed wax"] Hist. An impressed seal. Cera impressa orig inally referred only to wax seals, but later came to include any impressed seal, regardless ofthe substance impressed. See SEAL. ''The courts have held that an impression made on wafers or other adhesive substance capable of receiving an impreSSion comes within the definition of 'cera impressa.' If then wax be construed to be merely a general term includ ing any substance capable of receiving and retaining the impression of a seal, paper, if it has that quality, may well be included in the category. The machine now used to impress public seals does not require any substance to receive or retain the impression, which is as well defined, as durable less likely to be defaced than that made on wax. It is the seal which authenticates, not the substance impressed." William C. Anderson, A Dictionary ofLaw 926 (1889). ceratium (si-ray-shee-dm). See WAX SCOT. CERCLA (sar-kla). abbr. Comprehensive Environmental Response, Compensation, and Liability Act of 1980. This statute holds responsible parties liable for the cost of cleaning up hazardous-waste sites. 42 USCA 9601 et See SUPERFUND. [Cases: Environmental Law "CERCLA is probably the most controversial environmental law ever enacted. Supporters praise it as a vital program to safeguard human health and the environment from the toxic consequences of decades of irresponsible waste handling. Citing cost estimates ranging up to $750 billion, critics deride it as an extraordinarily expensive measure which imposes crippling liability on innocent parties to fund deanups which are either unnecessary or largely ineffective." John G. Sprankling & Gregory S. Weber, The Law ofHazardous Wastes and Toxic Substances in a Nutshell 256 (1997). certificate of assize ceremonial marriage. See MARRIAGE (3). cert. abbr. CERTIORARI. certain contract. See CONTRACT. certans de damno vitando (sar-tanz dee dam-noh VI tan-doh). [Law Latin] Hist. Striving to avoid a loss. certans de lucro captando (sar-tanz dee loo-kroh kap tan-doh). [Law Latin] Hist. Striving to make a gain; attempting to obtain an advantage. certificando de recognitione stapulae (s<'lr-ti-fi-kan-doh dee rek-<'lg-nish-ee-oh-nee stay-pYd-Iee). [Law Latin "by certifying the recognition of the statute staple"] Hist. A writ commanding the holder of certain com mercial debt instruments (i.e., the mayor ofthe staple) to certify to the lord chancellor the existence and terms of a statute staple (i.e., a bond for commercial debt) wrongfully detained by a party to the bond. See STATUTE STAPLE. certificat d'utilite. Patents. [French] L"TILITY MODEL. certificate, n. (15c) 1. A document in which a fact is formally attested <death certificate>. See STOCK CER TIFICATE. 2. A document certifying the bearer's status or authorization to act in a specified way <nursing cer tificate>. 3. A notice by one court to another court of the action it has taken <when issuing its opinion, the Seventh Circuit sent a certificate to the Illinois Supreme Court>. cert

has taken <when issuing its opinion, the Seventh Circuit sent a certificate to the Illinois Supreme Court>. certificate creditor. See CREDITOR. certificated security. See SECURITY. certificate into chancery. English law. The decision of a common-law court on a legal question submitted by the chancery court. certificate land. See LAND. certificate ofacknowledgment. See ACKNOWLEDGMENT (5). certificate of amendmeut. A document filed with a state corporation authority, usu. the secretary ofstate, reflecting changes made to a corporation's articles of incorporation. [Cases: Corporations (;::::040.] certificate ofappealability. In an appeal from the denial offederal habeas corpus relief, a document issued by a United States circuit judge certifying that the prisoner showed that a constitutional right may have been denied. 28 USCA 2253(c)(2) . The prisoner does not have to show that the case would succeed on the merits, only that reasonable jurists would find the claim at least debatable. Miller-EI v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039 (2003). If the certificate is not issued, no appeal is possible. 28 USCA 2253 (c)(l); Fed. R. App. P. 22(b). -Abbr. COA. Also termed (before 1996) certificate ofprobable cause (Abbr. CPC); certificate of reasonable doubt; writ ofprobable cause . [Cases: Habeas Corpus (;::::0818.] certificate ofassize. Hist. In England, a writ granting a retrial. The certificate ofassize has been replaced by a court order granting a new trial. certificate ofauthority. (1808) 1. A document authen ticating a notarized document that is being sent to another jurisdiction . The certificate assures the out-of-state or foreign recipient that the notary public has a valid commission. -Also termed certificate of capacity; certificate of official character; certificate of authentication; certificate ofprothonotary; certificate of magistracy; apostille; verification. 2. A document issued by a state agency, usu. the secretary of state, granting an out-of-state corporation the right to do business in the state. Also termed (in some states) certificate of qualification. [Cases: Corporations C=c648.] certificate of bad faith. In a case in which a party has been allowed to proceed in a United States District Court in forma pauperis, a court-issued document attesting that an appeal by that party would be frivo lous and therefore should not be allowed unless the party pays the ordinary filing fees and costs. 28 USCA 1915 (a)(3). Cf. CERTIFICATE OF GOOD FAITH. [Cases: Federal Civil Procedure C=c2734.] certificate of capacity. See CERTIFICATE OF AUTHOR ITY (1). certificate of conference. (l979) A section ofa pleading or motion filed with the court, usu. contained sepa ratelyon a page near the end of the document, whereby the party filing the pleading or motion certifies to the court that the parties have attempted to resolve the matter, but that a judicial determination is needed because an agreement could not be reached . Courts require some motions to have a certificate of confer ence attached to them. This compels the parties to try to resolve the issue themselves, without burdening the court unless necessary. Fed. R. Clv. P. 26(c), 37. certificate of convenience and necessity. A certificate issued by an administrative agency granting operat ing authority to a utility or transportation company. Also termed certificate of public convenience and necessity. [Cases: Automobiles Carriers Public Utilities C=c 113.] certificate ofconviction. A signed and certified warrant authorizing a person's imprisonment after an adjudica tion of guilt. certificate of correction. 1. A document that corrects an error in an official document, such as a certificate of incorporation. 2. Patents. A document issued by the U.S. Patent and Trademark Office after a patentee or assignee rectifies a minor error unrelated to either questions ofownership or else defects in a patent appJi cation's specifications or drawings . The certificate can correct only three types oferrors: (1) mistakes made by the PTO, (2) minor clerical or typographical errors, and (3) the omission or misidentification of an inventor's name. 35 USCA 254-256. Cf. reissue patent under PATENT (3). [Cases: Patents certificate of deposit. (1846) 1. A banker's certificate acknowledging the receipt ofmoney and promising to repay the depositor. Also termed certificate ofindebt edness. 2. A bank document showing the existence of a time deposit, usu. one that interest. -Abbr. CD. [Cases: Banks and Banking 152.] negotiable certificate ofdeposit. A security issued by a financial institution as a short-term source offunds, usu. with a fixed interest rate and maturity ofone year or less. [Cases: Banks and Banking C=c152.] certificate of discharge. See SATISFACTION PIECE. certificate of dishonor. See NOTICE OF DISHONOR. certificate ofdissolution. A document issued by a state authority (usu. the secretary of state) certifying that a corporation has been dissolved. certificate ofelection. A document issued by a governor, board of elections, or other competent authority cer tifying that the named person has been duly elected. [Cases: Elections C=c 126(7), 265.J certificate ofgood faith. In a case in which a party has been allowed to proceed in a United States District Court in forma pauperis, a document issued by the court attesting that an appeal by the party would not be frivolous, so the party should not be required to pay costs or security . District judges occaSionally issue certificates of good faith even though they are never required: a party is allowed to appeal in forma pauperis unless the court issues a certificate of bad faith. 28 USCA 1915(a)(3). Cf. CERTIfICATE OF BAD FAITH. [Cases: Federal Civil Procedure~' 2734.] certificate ofholder of attached property. A certificate given by a person who holds but does not own property attached by a sheriff . The certificate sets forth the holder's interest in the property. [Cases: Attachment C~)187.] certificate of incorporation. (18c) 1. A document issued by a state authority (usu. the secretary of state) granting a corporation its legal existence and the right to function as a corporation. Also termed charter; corporate charter. 2. ARTICLES OF INCORPORATION. [Cases: Corporations (:::::> 18.] certificate of indebtedness. 1. See DEBENTURE. 2. See TREASL'RY BILL. 3. See CERTIFICATE OF DEPOSIT (1). certificate of insurance. A document acknowledging that an insurance policy has been written, and setting forth in general terms what the policy covers. [Cases: Insurance certificate of interest. Oil & gas. A document evidenc ing a fractional or percentage ownership in oil-and-gas production. certificate of magistracy. See CERTIFICATE OF AL'THOR ITY (1). certificate ofmarriage. See MARRIAGE CERTIFICATE. certificate of merit. A certificate, Signed by the plain tiff's attorney and filed with the complaint in a civil suit, declaring that the plaintiff's attorney has con ferred with at least one competent expert and after ward concluded that the suit has merit . Many states have a law mandating certificates of merit in certain types of cases, such as professional malpractice. The 257 law's purpose is to weed out frivolous claims as early as possible. Jn those states, if a certificate is not filed with the complaint, the action is usu. dismissed. Ifthe law requires the certificate to be signed under oath or penalty of perjury, it is sometimes called an affidavit of merit. [Cases: Attorney and Client c?129(1); Health ~804;Negligence {.;: 1506.] certificate of occupancy. A document indicating that a building complies with zoning and building ordi nances, and ready to be occupied. - A certificate of occupancy is often required before title can be trans ferred and the building occupied. [Cases: Health 392; Zonillg and Planning ~371.] certificate of official character. See CERTIFICATE OF AUTHORITY (1). certificate of probable cause. See CERTIFICATE OF APPEALABILITY. certificate of proof. See PROOF OF ACKNOWLEDGMENT. certificate of protest. See NOTICE OF DISHONOR. certificate of prothonotary. See CERTIFICAn: OF AUTHORITY (1). certificate ofpublic convenience and necessity. See CER TIFICATE OF CONVENIENCE AND NECESSITY. certificate of purchase. A document reflecting a suc cessful bid for property at a judicial sale. -The bidder receives a property deed ifthe land is not redeemed or ifthe sale is confirmed by court order. -Also termed certificate ofsale. [Cases; Judicial Sales (,'-='61.] certificate of qualification. See CERTIFICATE OF AUTHORITY (2). certificate of reasonable doubt. See CERTIFICATE OF APPEALABILITY. certificate ofredemption. A document issued by a sheriff or other statutorily designated officer to a debtor whose property has been foreclosed as evidence that the debtor paid the redemption price for the foreclosed property. See statutory redemption under REDEMPTION. certificate of registration.!. Copyright. A U.S. Copy right Office document approving a copyright applica tion and stating the approved work's registration date and copyright registration number. [Cases: Copyrights and Intellectual Property C::>SO.25.] 2. Trademarks. A document affirming that the U.S. Patent and Trademark Office has allowed and recorded a trademark or ser vicemark. -The certificate identifies (1) the registered mark, (2) the date offirst use, (3) the type ofproduct or service the mark applies to, (4) the registration number and date, (5) the registration's term, (6), the original application date, and (7) any conditions or limitations on registration. [Cases; Trademarks ~1249.J certificate ofregistry. Maritime law. A document certi fying that a ship has been registered as required by law. See REGISTRY (2). [Cases; Shipping C;)S.] certificate of rehabilitation.!. A document issued in some states by a court or other authorized governmen tal agency, such as a parole board, as evidence that a certification of labor union convicted offender is entitled to recover at least some of the rights and privileges of citizenship. -The terms and conditions under which certificates of rehabilitation are issued vary widely among the states that use them. Some states, such as New York, issue different kinds of rehabilitation certificates based on the number or type of convictions. [Cases: Convicts 2. A document issued by a (usu.local) government on the renovation, restoration, preservation, or rehabilitation ofa historic building. -The certificate usu. entitles the property owner to favorable tax treatment. 3. A document attest ing that substandard housing has been satisfactorily renovated and meets hOUSing-code standards. certificate ofsale. See CERTIFICATE OF PURCHASE. certificate of service. (1819) A section of a pleading or motion filed with the court, usu. contained separately on the last page, in which the filing party certifies to the court that a copy has been mailed to or otherwise served on all other parties. - A certificate of service is usu. not included with the initial pleading that the plaintiff files to begin a suit, because that pleading is usu. filed before it is served (although the plaintiff may be required to file proof of service). Other pleadings and motions are usu. required to have a certificate of service. Fed. R. Civ. P. Sed). -Also termed proof ofservice. [Cases: Federal Civil Procedure ~66S; Pleading ~336; Process ~132.] certificate ofstock. See STOCK CERTIFICATE. certificate oftide. (1831) A documentindicating owner ship of real or personal property. UCC 9-102(a)(1O). This document usu. identifies anv liens or other encum brances. [Cases; Property~9.j certification, n. (ISc) 1. 'Ihe act ofattesting. 2. 'The state of having been attested. 3. An attested statement. 4. The writing on the face of a check by which it is certified. 5. A procedure by which a federal appellate court asks the U.S. Supreme Court or the highest state court to review a question oflaw arising in a case pending before the appellate court and on which it needs gUidance. -Certification is commonly used with state courts, but the U.S. Supreme Court has steadily restricted the number of cases it reviews by certification. See 28 USCA 1254(2). Cf. CERTIORARI. [Cases: Federal Courts C~392, 463.] certification authOrity. An organization that issues digital certificates and maintains a database of cer tificates available on the Internet. -Many states have licenSing laws for certification authorities. -Also termed certifying authority. Abbr. CA. certification hearing. See transfer hearing under HEARING. certification mark. See certification trademark under TRADEMARK. certification of bargaining agent. See UNION CERTIFI CATION. certification oflabor union. See UNION CERTIFICA TION

aining agent. See UNION CERTIFI CATION. certification oflabor union. See UNION CERTIFICA TION. 258 certification to state court certification to state court. The procedure by which a federal court ofappeals defers deciding a novel question of state law by certifying the question to the highest court of the state. See CERTIFICATION (5). [Cases: Federal Courts <:::::=,392.] certification trademark. See TRADEMARK. certified check. See CHECK. certified copy. See COPY. certified file history. Patents. A patent application together with records of all proceedings and corre spondence related to its prosecution, as certified by the u.s. Patent and Trademark Office for appeals, arbitra tion, and other postprosecution proceedings. Cf. FILE WRAPPER. [Cases: Patents c;:::, 160.] certified financial planner. See FINANCIAL PLANNER. certified financial statement. See FINANCIAL STATE MENT. certified juvenile. See JGVENILE. certified mail. See MAIL. certified military lawyer. See LAWYER. certified public accountant. See ACCOUNTANT. certified question. (1835) A point of law on which a federal appellate court seeks guidance from either the U.S. Supreme Court or the highest state court the procedure ofcertification. [Cases: Federal Courts 392,463.] certify, vb. (14c) 1. To authenticate or verify in writing. 2. To attest as being true or as meeting certain criteria. 3. (Of a court) to issue an order allowing a class of litigants to maintain a class action; to create (a class) for purposes ofa class action. See CERTIFICATION. Cf. DECERTIFY. certified, adj. certifying authority. See CERTIFICATION AUTHORITY. certiorari (s"r-shee-a-rair-I or -rair-ee or -rah-ree). [Law Latin "to be more fully informed"] (15c) An extraordi nary writ issued by an appellate court, at its discretion, directing a lower court to deliver the record in the case for review . The writ evolved from one ofthe preroga tive writs ofthe English Court ofKing's Bench, and in the United States it became a general appellate remedy. The U.S. Supreme Court uses certiorari to review most ofthe cases that it decides to hear. -Abbr. cert. -Also termed writ ofcertiorari. C CERTIFICATION (S). [Cases: Certiorari c;:::, L] "The established method by which the Court of King's Bench from the earliest times exercised superintendence over the due observance of their limitations by inferior courts, checked the usurpation of jurisdiction, and main rained the supremacy of the royal courts, was by writs of prohibition and certiorari. A proceeding by writ of certio rari (cause to be certified) is a special proceeding by which a superior court requires some inferior tribunal, board. or judicial officer to transmit the record of its proceedings for review, for excess of jurisdiction. It is similar to a writ of error, in that it is a proceeding in a higher court to super intend and review judicial acts, but it only lies in cases not appealable by writ of error or otherwise." Benjamin J. Shipman, Handbook ofCommon Law Pleading 340, at 541 (Henry Winthrop Ballantine ed., 3d ed. 1923). "The discretionary writ of certiorari has come to control access to almost all branches of Supreme Court jurisdic tion. Appeal jurisdiction has been narrowly limited, and certification of questions from federal courts of appeals has fallen into almost complete desuetude. Certiorari control over the cases that come before the Court enables the Court to define its own institutional role." Charles Alan Wright et aI., Federal Practice and Procedure 4004, at 22 (2d ed. 1996). "The writ of certiorari (from the Latin certiorar'ie "in form") is used today in the United States as a general vehicle of discretionary appeal. Historically, however, the writ had a much narrower function. It lay only to inferior courts and only to demand that the record be 'certified' and sent to the King's Bench to see ifthat [inferior] court had exceeded its power in particular cases. It was most frequently used to review criminal indictments and local administrative orders, and was often used to examine the statutory authority for acts of administrative bodies created by statute." Daniel R. Coquillette, The AngloAmerican Legal Heritage 248 (1999). certiorari/acias (sdr-shee-a-rair-I fay-shee-as). [Latin "a cause to be certified"] The command of a writ of certiorari, referring to certification ofthe court record for review. limited certiorari. See narrow certiorari. narrow certiorari. Certiorari limited to reviewing questions about jurisdiction, the regularity of the proceeding, the exercise of unauthorized powers, and constitutional rights. Narrow certiorari is usu. applied to appeals from arbitrators' awards or the decisions of state agencies. It is most common in Pennsylvania. -Also termed limited certiorari. [Cases: Certiorari (;:::>64(1).] certiorari petition. See PETITION. cert pool. A group ofclerks in the U.S. Supreme Court who read petitions for certiorari and write memoran dums fOf the justices with a synopsis of the facts and issues and often a recommendation ofwhether a grant ofcertiorari is warranted. "The cert pool is not without its critics. Some commenta tors have contended that inexperienced clerks in the cert pool give short shrift to cases of practical importance in favor of cases presenting esoteric legal questions .... Other critics have contended that the cert pool does little to advance its stated goal of efficiency.... Pool clerks fre quently must take the time to formally summarize petitions that would occasion only a brief, candid recommendation to 'deny' from their own Justices." Robert L. Stern et aI., Supreme Court Practice 291 (8th ed. 2002). certum an et quantum debeatur? (S3r-t"m an et kwon-t"m dee-bee-ay-t"r). [Law Latin] Hist. Certain whether there is a debt due at all, and how much is owed? These were the two questions that had to be resolved before a defendant could make a plea in com pensation. certus plegius (S"f-t<}S plee-jee-ds). [Latin "sure pledge"] See SALVUS PLEGIUS. certworthy, adj. (1965) Slang.{Ofa case or issue) deserv ing of review by writ of certiorari. -certworthiness, n. cess (ses), n. Hist. 1. English law. An assessment or tax. 2. Scots law. A land tax. -Also spelled cesse; sess. 259 cessation-of-production clause. Oil & gas. A lease provi sion that specifies what the lessee must do to maintain the lease if production stops. The purpose of the clause is to avoid the uncertainties of the temporary cessation-of-production doctrine. Cf. TEMPORARY-CES SATION-OF-PRODUCTION DOCTRINE. [Cases: Mines and Minerals C=>78.1(9).] "Many oil and gas leases contain provisions intended to give lessees more certainty than is given by the temporary cessation of production doctrine. Usually, such provision takes the form of a temporary cessation of production clause, a provision in the lease that states that the lease will be maintained so long as production does not cease for more than an agreed period of time, usually sixty to ninety days... : So long as sixty days does not elapse without operations on the property, the lease will not terminate even though there is no production." John S. Lowe, Oil and Gas Law in a Nutshell 258 (3d ed. 1995). cessavit per biennium (se-say-vit par bI-en-ee-Jm). [Latin "he ceased for two years"] Hist. A writ of right available to a landlord to recover land from a tenant who has failed to pay rent or provide prescribed services for a two-year period . The writ could also be used to recover land donated to a religious order if the order has failed to perform certain spiritual services. -Also termed cessavit. cesse. See CESS. cesser (ses-Jr). 1. Hist. A tenant whose failure to pay rent or perform prescribed services gives the landowner the right to recover possession of the land. -Also spelled cessor; cessure. 2. The termination ofa right or interest. "A proviso of cesser is usually annexed to long terms, raised by mortgage, marriage settlement, or annuity, whereby the term is declared to be determinable on the happening of a certain event; and until the event prOVided for in the declaration of cesser has occurred, the term continues." 4 James Kent, Commentaries on American Law'90 (George Comstock ed., 11th ed. 1866). "The cesser of a term, annuity or the like takes place when it determines or comes to an end. The expression was formerly chiefly used with reference to long terms of years created by a settlement for the purpose of securing portions, etc., given to the objects of the settlement. In such cases, it was usual to introduce a proviso that the term should cease when the trusts thereof were satisfied (as, for example, on the death of the annuitant where the term was created to secure an annuity). This was called a proviso for cesser." jowitt's Dictionary ofEnglish Law 308 Uohn Burke ed., 2d ed. 1977). cesset executio (ses-<'It ek-sa-kyoo-shee-oh). [Latin "let execution stay"] An order directing a stay of execu tion. cesset processus (ses-<'It proh-ses-as). {Latin "let process stay"] An order entered on the record directing a stay of a legal proceeding. cessio (sesh-ee-oh). [Latin "cession"] A relinquishment or assignment; CESSION. cessio actionum (sesh-ee-oh ak-shee-oh-nJm). [Latin] Roman law. The assignment ofan obligation by allowing a third party to (1) sue on the obligation in the name of the party entitled to it, and (2) retain the proceeds. cestui que vie cessio bonorum (sesh-ee-oh bJ-nor-am). [Latin "cession of goods"] Roman law. An assignment of a debtor's property to creditors. [Cases: Debtor and Creditor (>1, 12.] "It was the Roman equivalent of modern bankruptcy .... [Olne who thus made cessio bonorum would not become infamis, was never liable in future beyond his means, for the old debts, and was not liable to personal seizure thereafter in respect ofthem."W.w. Buckland, A Manual of Roman Private Law 388 (2d ed. 1939). cessiofori (sesh-ee-oh for-I). [Latin] Hist. The giving up ofbusiness; the act ofbecoming bankrupt. cessio in jure (sesh-ee-oh in joor-ee). [Latin "transfer in law"] Roman law. A fictitious action brought to convey property, whereby the claimant demanded certain property, the owner did not contest the claim, and a magistrate awarded the property to the claimant. cession (sesh-an). (lSc) 1. The act of relinquishing property rights. 2. Int'llaw. The relinquishment or transfer of land from one nation to another, esp. after a war. as part ofthe price ofpeace. [Cases: Indians 155.] 3. The land so relinquished or transferred. cessionary bankrupt. See BANKRUPT. cessment (ses-mant). Hist. An assessment or tax. cessor. See CESSER. cessure. See CESSER. cestui (set-ee or ses-twee). [French "he who"] (l6c) A beneficiary. Also spelled cestuy. cestui que trust (set-ee [or ses-twee] kee [or ka] tr;)st). [Law French] (lSc) Archaic. One who possesses equi table rights in property, usu. receiving the rents, issues, and profits from it; BENEFICIARY. Also termed fide commissary;fidei-commissarius. PI. cestuis que trust or (erroneously) cestuis que trustent. [Cases: Trusts C=,139.] "[AJn alternative name for the beneficiary is 'cestui que trust,' an elliptical phrase meaning 'he [forJ= whose [benefit the] trust [was created\.' In this phrase cestui is pronounced 'settee' (with the accent on the first syllable), que is pronounced 'kee,' and trust as in English. Grammati cally the plural should be cestuis que trust(pronounced like the singular); but by an understandable mistake it is some times written cestuis que trustent, as if trust were a verb." Glanville Williams, Learning the Law 10 (11th ed. 1982). cestui que use (set-ee [or ses-twee] kee [or ka] yoos). [Law French] (16c) Archaic. The person for whose use and benefit property is being held by another, who holds the legal title to the property. PI. cestuis que use or (errone ously) cestuis que usent. [Cases: Trusts 131.] "The basis of this institution was the transfer of property to a trusted friend, who was to hold it not for personal benefit but for the purpose of carrying out the transferor's instruc tions. The person to whom the land was conveyed for this purpose was the 'feoffee to uses'; the person for whose benefit the land was

the land was conveyed for this purpose was the 'feoffee to uses'; the person for whose benefit the land was conveyed the beneficiary -was the 'cestui que use' ... , from the law French 'cestui a que use Ie feoffment fuit fait,''' Peter Butt, Land Law 702, at 97 (3d ed. 1996). cestui que vie (set-ee [or ses-twee] kee [or b] vee). [Law French] (17c) The person whose life measures the 260 cestuy duration of a trust, gift, estate, or insurance contract. Cf. MEASURING LIFE. [Cases: Life Estates C:=> 1.] "Illet us assume that A instead transfers 'to Efor the life of A.' Since A has used his own life as the measuring life of E's estate, A has given away all that he had. Because E's estate is measured by the life of someone other than himself, his estate is called an estate pur autre vie. A, whose life is the measuring life, is called the cestui que vie." Thomas F. Bergin & Paul C. Haskell, Preface to Estates in Land and Future Interests 36 (2d ed. 1984). cestuy. See CESTUI. ceteris paribus (set-J-ris par-J-bJs). [Latin] Other things being equal. -Also spelled caeteris paribus. ceteris tacentibus (set-d-ris ta-sen-td-bJs). [Latin] Hist. The others being silent. -This phrase appeared in serially printed law reports after an opinion by one judge. It referred to the judges who did not vote or express an opinion. Also spelled caeteris tacentibus. See SERIATIM. d. abbr. [Latin conferJ (1850) Compare. -As a citation Signal, cf. directs the reader's attention to another authority or section of the work in which contrasting, analogous, or explanatory statements may be found. C.F. abbr. COST AND FREIGHT. CFC. See controlled foreign corporation under CORPO RATION. CFO. abbr. CHIEF FINANCIAL OFFICER. CFP. abbr. CertifIed financial planner. See FDIANCIAL PLANNER. CFR. abbr. L CODE OF FEDERAL REGULATIONS. 2. COST AND FREIGHT. CFTC. abbr. COMMODITY FUTURES TRADING COMMIS SION. CGL insurance. See comprehensive general-liability insurance under INSURANCE. CGL policy. 1. See commercial general-liability policy under INSURANCE POLICY. 2. See comprehensive gen eral-liability policy under INSURANCE POLICY. ch. abbr. 1. Chapter. 2. Chancellor. 3. Chancery. 4. Chief. Chace Act. Hist. Copyright. An 1891 statute giving U.S. copyright protection to the citizens of other nations that in turn gave a similar degree of reciprocal protec tion to U.S. citizens. -The Act was invoked by presi dential order or by treaty, primarily with European countries. Under the Act's manufacturing clause, English-language books and other printed matter had to be produced in the U.S. or Canada in order to qualify for domestic protection. -Also termed 1891 Copyright Amendment Act. chad. The small bit of precut paper that is attached to a punch-card ballot by several points and punched out by a voter to cast a vote. _ Because most punch-card ballots are machine-read, the chad must be completely separated from the ballot for the vote to be counted. The results of the closely contested 2000 presidential election were delayed for several weeks because more than 40,000 ballots with partially attached chads had to be hand-counted. [Cases: Elections C:=>227(9).J dimpled chad. A chad that is bulging but not pierced, with all its points attached to the ballot. -Sometimes termed pregnant chad. hanging chad. A chad that is attached to the ballot by a Single point. pregnant chad. See dimpled chad. swinging-door chad. A chad that is attached to the ballot by two points. tri-chad. A chad that is attached to the ballot by three points. chafewax (chayf-waks). Hist. A chancery officer who heated (or chafed) wax to seal writs, commissions, and other instruments. -The office was abolished in 1852. -Also spelled chaffwax. chaffer (chaf-Jr), vb. To bargain; negotiate; haggle; dicker. For offer to chaffer, see INVITATION TO NEGOTIATE. chain-certificate method. (1966) The procedure for authenticating a foreign official record by the party seeking to admit the record as evidence at trial. See Fed. R. Civ. P. 44. [Cases: EvidenceC:=>341.J chain conspiracy. See CONSPIRACY. chain gang. A group of prisoners chained together to prevent their escape while working outside a prison. chain ofcausation. (ISc) 1. A series of events each caused by the previous one. 2. The causal connection between a cause and its effects. Cf. CAUSATION. [Cases: Negli gence e:-:432.J chain-of-causation rule. Workers' compensation. The principle that an employee's suicide is compens able under workers' compensation statutes if the employee suffered an earlier work-related injury that led to a mental disorder resulting in the suicide. [Cases: Workers' Compensation ~'c::.)546, 603, 799.J chain of custody. (1947) 1. The movement and location ofreal evidence, and the history ofthose persons who had it in their custody, from the time it is obtained to the time it is presented in court. [Cases: Criminal Law C:=>404.30; Evidence C:=> 188.] "Chain of custody requires testimony of continuous posses sion by each individual having possession, together with testimony by each that the object remained in substantially the same condition during its presence in his possession. All possibility of alteration, substitution or change of condition need not be eliminated. For example, normally an object may be placed in a safe to which more than one person had access without each such person being produced. However the more authentication is genuinely in issue, the greater the need to negate the possibility of alteration or substitution." Michael H. Graham, Federal Rules of Evidence In a Nutshell 402 (3d ed. 1992). 2. The history ofa chattel's possession. -Also termed chain ofpossession. chain oftitle. (I8c) 1. The ownership history of a piece ofland, from its first owner to the present one. -Also termed line of title; string of title. 2. The ownership history of commercial paper, traceable through the 261 indorsements . For the holder to have good title, every prior negotiation must have been proper. Ifa necessary indorsement is missing or forged, the chain of title is broken and no later transferee can become a holder. chain-referral scheme. See PYRAMID SCHEME. chair. Parliamentary law. 1. A deliberative assem bly's presiding officer <the chair calls for order>. See PRESIDE. 2. The presiding officer's seat <take the chair>. 3. The officer who heads an organization <the treasurer reports directly to the chair>. Also termed chairman (of a male chair, in senses 1 & 3); chairwoman (of a female chair, in senses 1 & 3); chairperson (in senses 1 & 3); moderator (in sense 1); president (in senses 1 & 3); presiding officer (in sense 1); speaker (in sense 1). chair, vb. "The term the chair refers to the person in a meeti ng who is actually presiding at the time, whether that person is the regular presiding officer or not, The same term also applies to the presiding officer's station in the hall from which he or she presides, which should not be permitted to be used by other members as a place from which to make reports or speak in debate during a meeting, ..." Henry M, Robert, Robert's Rules ofOrder Newly Revised 47, at 433 (1 Oth ed. 2000), chair by decree. A chair appOinted by an outside authority rather than elected by the deliberative assembly being presided over. chairpro tempore. A chair elected or appointed during or in anticipation ofthe regular presiding officer's (or officers') absence from the chair, and whose service ends when a regular presiding officer resumes the chair. Often shortened to chair pro tern. See PRO TEMPORE. chairman. See CHAIR. Chairman of Committees of the Whole House. The member of Parliament who presides over the House of Commons when it is sitting in committee. chairperson. See CHAIR. chairwoman. See CHAIR. challenge, n. (I4c) 1. An act or instance offormally ques tioning the legality or legal qualifications ofa person, action, or thing <a challenge to the opposing party's expert witness>. as-applied challenge. (1974) A claim that a law or gov ernmental policy, though constitutional on its face, is unconstitutional as applied, usu. because of a dis criminatory effect; a claim that a statute is uncon stitutional on the facts of a particular case or in its application to a particular party. Batson challenge. (1987) Procedure. An objection that an opposing party has used a peremptory challenge to exclude a potential juror on the basis of race, eth nicity, or sex. It is named for Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), a criminal case in which the prosecution struck potential jurors on the basis ofrace. The principle ofBatson was extended in later Supreme Court cases to civil litigants (Edmonson v. Leesville Concrete Co., 500 U.S. 614, III S.Ct. 2077 (1991)) and to criminal defense attorneys (Georgia challenge v. McCollum, 505 U.S. 42, 112 S.ct. 2348 (1992)). The Court also applied it to peremptory challenges based on a juror's sex (J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419 (1994)). See Fed. R. Civ. P. 47(b). lCases: Constitutional Law C=3309, 3428; Jury C= 33(5.15).] constitutional challenge. (1936) A claim that a law or governmental action is unconstitutional. facial challenge. (1973) A claim that a statute is uncon stitutional on its face that is, that it always operates unconstitutionally. 2. A party's request that a judge disqualify a poten tial juror or an entire jury panel <the personal-injury plaintiff used his last challenge to disqualify a neuro surgeon>. Also termed jury challenge. causal challenge. See challenge for cause. challenge for cause. (17c) A party's challenge supported by a specified reason, such as bias or prejudice, that would disqualify that potential juror. -Also termed for-cause; causal challenge; general challenge; chal lenge to the poll. [Cases: Jury C=83-108, 124.] challenge propter affectum (prop-t<lr <l-fek-t<lm). A challenge because some circumstance, such as kinship with a party, renders the potential juror incompetent to serve in the particular case. challenge propter defectum (prop-t<lr d<l-fek-tJm). A challenge based on a claim that the juror is incompe tent to serve on any jury for a reason such as alienage, infancy, or nonresidency. challenge propter delictum (prop-tdr dd-lik-tdm). A challenge based on a claim that the potential juror has lost citizenship rights, as by being convicted ofan infamous crime. See civil death (1) under DEATH. challenge to the array. (16c) A legal challenge to the manner in which the entire jury panel was selected, usu. for a failure to follow prescribed procedures designed to produce impartial juries drawn from a fair cross-section of the community . Such a chal lenge is either a principal challenge (if some defect renders the jury prima facie incompetent, as where the officer selecting veniremembers is related to the prosecutor or defendant) or a challenge for favor (as where the defect does not amount to grounds for a principal challenge, but there is a probability of par tiality). -Also termed challenge to the jury array. [Cases: Jury C=114.] challenge to the favor. A challenge for cause that arises when facts and circumstances tend to show that a juror is biased but do not warrant the juror's auto matic disqualification. See challenge for cause. [Cases: Jury C=,97(I).] challenge to the poll. See challenge for cause. general challenge. See challenge for cause. peremptory challenge. (16c) One of a party's limited number of challenges that do not need to be sup ported by a reason unless the opposing party makes a prima facie showing that the challenge was used to 262 challenge discriminate on the basis of race, ethnicity, or sex. -At one time, a peremptory challenge could not be attacked and did not have to be explained. But today if discrimination is charged, the party making the peremptory challenge must give a nondiscrimina tory reason for striking the juror. The court must consider several factors in deciding whether the prof fered reason is merely a screen for illegal discrim

striking the juror. The court must consider several factors in deciding whether the prof fered reason is merely a screen for illegal discrimina tion. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). Often shortened to peremptory. -Also termed peremptory strike; Sight strike under STRIKE (2). See STRIKE (2); Batson challenge under CHAL LENGE (I). [Cases: Jury (:::::33(5.15), 134.) principal challenge. A for-cause challenge that arises when facts and circumstances support a conclusive presumption of a juror's bias, resulting in automatic disqualification. See challenge for cause. [Cases: Jury (:::::97(1).] 3. Military law. An objection to a member of the court serving in a court -martial case. - A military judge can be challenged only for cause. [Cases: Military Justice 884,889.] challenge, vb. 1. To dispute or call into question <the col umnist challenged the wisdom ofthe court's ruling>. challenge the vote. See DIVIDE THE ASSEMBLY. 2. To formally object to the legality or legal qualifica tions of <the defendant challenged the person's eligibil ity for jury service>. [Cases: Jury (::::: 124, 134.] chamber, n. (13c) l. A room or compartment <gas chamber>. 2. A legislative or judicial body or other deliberative assembly <chamber ofcommerce>. 3. The hall or room where such a body conducts business <the senate chamber>. -chamber, adj. judge's chamber. (usu. pl.) (17c) l. The private room or office ofa judge. 2. Any place where a judge transacts official business when not holding a session of the court. See IN CAMERA. [Cases: Judges (:::::27.] lower chamber. (1885) In a bicameral legislature, the larger ofthe two legislative bodies, such as the House ofRepresentatives or the House of Commons. [Cases: States (:::::26.] Star Chamber. See STAR CHAMBER. upper chamber. (1850) In a bicameral legislature, the smaller of the two legislative bodies, such as the Senate or the House of Lords. -Before passage of the House of Lords Act in 1999, the House of Lords traditionally had more members than the House of Commons. chamber, vb. Slang. (Of a judge) to sit in one's chambers at a given location <ChiefJudge Kaye chambers some times in New York City and sometimes in Albany>. chamber business. (1805) Official judicial business con ducted outside the courtroom. [Cases: Judges (:::::27.] chamberlain (chaym-b<:lr-lin). A treasurer; originally, the keeper of the royal treasure chamber. -The term has been used for several high offices in England, such as the Lord Great Chamberlain, Lord Chamberlain of the Household, and Chamberlain of the Exchequer. chamberlaria (chaym-b<:lr-Iair-ee-<:l). [Law Latin] Cham berlainship; the office ofchamberlain. chamber of accounts. French law. A court responsible for adjudicating disputes concerning public-revenue collection. Cf. COURT OF EXCHEQUER. chamber ofcommerce. An association of merchants and other business leaders who organize to promote the commercial interests in a given area and whose group is generally affiliated with the national organization of the same name. champertor (cham-p<:lr-tar), n. (16c) A person who engages in champerty; one who supports and promotes another person's lawsuit for pecuniary gain. -Also termed (archaically) campiparticeps. Cf. BARRATOR. champertous (cham-par-t<:ls), adj. (17c) Of, relating to, or characterized by champerty; constituting champerty <a champertous contract>. "In England and many other countries, the contingent fee is prohibited as a form of champerty because it permits a client to carryon litigation in exchange for a promise to the lawyer of a share in the recovery. Although most states in the United States prohibit a lawyer from accept ing an assignment of a percentage of the client's cause of action as a legal fee, they do not similarly condemn, as champertous, contingent fees whereby the lawyer receives a percentage of the recovery as a fee and no fee at all if there is no recovery." Robert H. Aronson & Donald T. Weckstein, Professional Responsibility in a Nutshell 271-72 (2d ed. 1991). champerty (cham-par-tee), n. [fro French champs parti "split field"] (15c) 1. An agreement between an officious intermeddler in a lawsuit and a litigant by which the intermeddler helps pursue the litigant's claim as con sideration for receiving part ofany judgment proceeds; specif., an agreement to divide litigation proceeds between the owner of the litigated claim and a party unrelated to the lawsuit who supports or helps enforce the claim. Also termed (archaically) campipartia. Cf. BARRATRY; MAINTENANCE (6). [Cases: Champerty and Maintenance (::::: 1,4.] "There is disagreement in the American courts as to what constitutes champerty. (1) Some courts hold that an agree ment to look to the proceeds of the suit for compensation is champerty.... (2) Some courts hold that in addition the attorney must prosecute the suit at his own cost and expense to constitute champerty .... (3) Some courts hold even in a case like (2) that there is no champerty .... (4) All authorities agree that a contract for a contingent fee is not champerty if it is not to be paid out of the proceeds of the suit .... (5) In some states it is declared that the common law doctrines of maintenance and champerty are unknown ... ; in some the matter is regulated wholly by statute .... [AJnd in most there is a marked tendency to narrow the doctrines of champerty or to evade them." William R. Anson, Principles ofthe Law ofContract 294 n.2 (Arthur L Corbin ed., 3d Am. ed. 1919). "The rule as to champerty has been generally relaxed under modern decisions and a majority of courts now recognize that an agreement by which the attorney is to receive a contingent fee, i.e., a certain part of the avails of a suit or an amount fixed with reference to the amount recovered, is valid as long as the attorney does not agree to pay the expenses and costs of the action." Walter Wheeler Cook, 263 "Quasi-Contracts," in 1 American Law and Procedure 129 (1952). 2. Hist. A writ available to the party who is the target of a champertous action. "Champerty is a writ that lies where two men are implead ing, and one gives the half or part of a thing in plea to a stranger, to maintain him against the other; then the party grieved shall have this writ against the stranger." William Rastell, Termes de la Ley 76 (1 st Am. ed. 1812). champion. Hist. A person chosen to represent a defendant in trial by combat. _ If the champion lost, the defen dant was adjudged gUilty. A champion who survived was fined for intentionally or ignorantly defending an unjust cause; one who died was buried in unhallowed ground. See TRIAL BY COMBAT. chance, n. (l4c) 1. A hazard or risk. 2. The unforeseen, uncontrollable, or unintended consequences of an act. 3. An accident. 4. Opportunity; hope. chance bargain. Contracts. A transaction in which the parties mutually agree to accept the risk that facts and circumstances assumed by the parties at the time of contracting may not actually be what the parties believe they are. -Ifno fraud or misrepresentation is involved, a court will uphold a chance bargain. For instance, in a chance bargain involving a land swap, each deed may describe a tract as containing a number ofacres "more or less." Ifthe tract is actually larger than described, the seller cannot demand more money for the excess. And if the tract is actually smaller, the disappointed buyer cannot ask for a reduced price to make up for the deficiency. chancellor, n. (14c) 1. A judge serving on a court of chancery. 2. A university president or CEO ofan insti tution of higher education. 3. In the U.S., a judge in some courts of chancery or equity. 4. Scots law. The presiding juror. 5. Eccles. law. A law officer who presides over the bishop's court. -The chancellor advises and assists the bishop in all matters of canon law, both juridical and administrative. chancellorship, n. Chancellor, Lord. See LORD CHANCELLOR. Chancellor ofthe Exchequer. In England, a government minister who controls revenue and expenditures. Formerly, the Chancellor sat in the Court of Exche quer. chancellor's foot. A symbol of the variability of equi table justice. -John Selden, the 17th-century jurist, is thought to have coined the phrase in this passage, from his best-known book: "Equity is a roguish thing. For law we have a measure, know what to trust to: equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. 'Tis all one as ifthey should make the standard for the measure the Chancellor's foot. What an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot; 'tis the same thing in the Chancellor's conscience." Table Talk (1689). chance-medley. [fro Anglo-Norman chance medlee "chance scuffle"] A spontaneous fight during which Chancery Court of York one participant kills another in self-defense. Also termed chaud-medley; casual affray. Cf. MEDLEY. "But the self-defence, which we are now speaking of, is that whereby a man may protect himself from an assault, or the like, in the course of a sudden brawl or quarrel, by killing him who assaults him. And this is what the law expresses by the word chance-medley, or (as some rather choose to write it) chaud-medley; the former of which in its etymology signifies a casual affray, the latter an affray in the heat of blood or passion: both of them of pretty much the same import; but the former is in common speech too often erroneously applied to any manner of homicide by misadventure; whereas it appears ... that it is properly applied to such killing, as happens in self-defence upon a sudden rencounter." 4 William Blackstone. Commentaries on the Laws ofEngland 184 (1769). chance-of-survival doctrine. (1991) 1he principle that a wrongful-death plaintiff need only prove that the defen dant's conduct was a substantial factor in causing the death -that is, that the victim might have survived but for the defendant's conduct. [Cases: Death chancer (chan-s ..r), vb. To adjust according to equitable principles, as a court ofchancery would. -The practice arose in parts of New England when the courts had no equity jurisdiction, and were compelled to act on equitable principles. "The practice of 'chancering' is a very old one. A forfeiture could be 'chancered' under a law of 1699 .... Adjudged cases in 1630-1692 may be found in the Records of the Court of Assistants of Massachusetts Bay Colony. The early laws of Massachusetts provided for 'chancering' the forfeiture of any penal bond .... In Rhode Island an act of 1746 proVided for 'chancerizing' the forfeiture 'where any penalty is forfeited, or conditional estate recovered, or equity of redemption sued for, whether judgment is con fessed or otherwise obtained.'" 1 John Bouvier, Bouvier's Law Dictionary 456-57 (8th ed. 1914). chancery (chan-s ..r-ee). (14c) 1. A court of equity; collec tively, the courts of equity. _ '[he term is derived from the court of the Lord Chancellor, the original English court of equity. Also termed court of chancery; chancery court. "Chancery's jurisdiction was complementary to that of the courts of common law it sought to do justice in cases for which there was no adequate remedy at common law. It had originated in the petition, not the writ, of the party who felt aggrieved to the Lord Chancellor as 'keeper of the King's conscience.' In its origins, therefore, Chancery's flexible concern for justice complemented admirably the formalism of a medieval system of common law which had begun to adhere strictly, perhaps overstrictly on occasion, to prescribed forms. By 1800, however, Chancery's system was itself regarded as being both consistent and certain." A.H. Manchester, Modem Legal History of England and Wales, 1150-1950135-36 (1980). 2. The system ofjurisprudence administered in courts of equity. See EQUITY. [Cases: Equity 1.] 3. In!'l law. The place where the head of a diplomatic mission and staff have their offices, as distinguished from the embassy (where the ambassador lives). Chancery Court of York. Eccles. law. The ecclesiastical court of the province of York, responsible for appeals from provincial diocesan courts. -This court corre sponds to the Court ofArches in the Province of Can terbury. Cf. COURT OF ARCHES. 264 chancery guardian chanc

of Can terbury. Cf. COURT OF ARCHES. 264 chancery guardian chancery guardian. See GUARDIAN. chance verdict. See VERDICT. change in circumstances. (1899) Family law. A modi fication in the physical, emotional, or financial con dition of one or both parents, used to show the need to modify a custody or support order; esp., an invol untary occurrence that, if it had been known at the time of the divorce decree, would have resulted in the court's issuing a different decree, as when an invol untary job loss creates a need to modify the decree to provide for reduced child-support payments. Also termed change ofcircumstances; changed circumstances; material change in circumstances; substantial change in circumstances; change ofcondition. See MODI FICA TIOK ORDER. [Cases: Child Custody (;::>555-556; Child Support ~~233-234; Divorce (;::>245(2).] change of condition. 1. Workers' compensation. A substantial worsening of an employee's physical health occurring after an award, as a result of which the employee merits an increase in benefits. [Cases: Workers' Compensation C:;:>2005.] 2. Family law. CHANGE IN CIRCUMSTANCES. change-of-ownership clause. Oil & gas. A provision in an oil-and-gas lease specifying what notice must be given to a lessee about a change in the leased land's ownership before the lessee is obliged to recognize the new owner. Also termed assignment clause. [Cases: Mines and Minerals (;::>74(2).] change of venue. (18c) The transfer of a case from one locale to another court in the same judicial system to cure a defect in venue, either to minimize the preju dicial impact of local sentiment or to secure a more sensible location for trial. Also termed transfer of venue. See VENUE. [Cases: Venue (~33-84.l change order. 1. A modification ofa previously ordered item or service. See VALUE (2). 2. A directive issued by the federal government to a contractor to alter the specifications of an item the contractor is producing for the government. [Cases: United States (;::>70(25.1).] changing fund. See FUND (1). channel. (14c) 1. The bed ofa stream ofwater; the groove through which a stream flows <digging a deeper channel was thought to help protect the river from flooding>. main channel. The bed over which the principal volume of water flows; the deepest and most navigable part ofa channeL natural channel. The naturally formed bed and banks ofa stream. natural flood channel. A channel through which flood waters naturally accumulate and flow downstream. 2. The line of deep water that shipping vessels follow <a shipping channel>. 3. A water route between two islands or an island and a continent <the English Channel>. 4. A mode of transmitting something <the news channel>. channel ofdistribution. See DISTRIBUTION CHANNEL. channel of trade. See DISTRIBUTION CHANNEL. chantry (chan-tree), n. Rist. Eccles. law. 1. A benefice endowed for the saying ofMass by chantry priests for the soul ofthe founder or his deSignees . This practice was abolished in England by the Chantry Acts of 1545 and 1547. 2. A chapel or part of a church so endowed. Also spelled chauntry. chapiter (chap-<l-t<lr). [Law French] Rist. A list of matters drawn up by the king to be presented before the justices in eyre, justices of assise, or justices of the peace. Also spelled chapitre. Cf. ARTICLES OF THE EYRE. Chapter 7. 1. The chapter of the United States Bank ruptcy Code allowing a trustee to collect and liquidate a debtor's nonexempt property, either voluntarily or court order, to satisfy creditors. [Cases: Bankruptcy 2. A bankruptcy case filed under this chapter. An individual debtor who undergoes this type ofliq uidation usu. gets a fresh financial start by receiving a discharge of all debts. -Also termed (in sense 2) straight bankruptcy; liquidation bankruptcy. "A Chapter 7 case has five stages: (1) getting the debtor into bankruptcy court; (2) collecting the debtor's property; (3) selling this property; (4) distributing the proceeds of the sale to creditors; and (5) determining whether the debtor is discharged from further liability to these creditors." David G. Epstein et al., Bankruptcy 1-7, at 9 (1993). Chapter 9. 1. lbe chapter of the United States Bank ruptcy Code governing the adjustment of a munici pality's debts. [Cases: Bankruptcy (~3481.l 2. A bankruptcy case filed under this chapter. Chapter 11. (1970) l. The chapter of the United States Bankruptcy Code allowing an insolvent business, or one that is threatened with insolvency, to reorganize its capital structure under court supervision (and subject to creditor approval) while continuing its normal oper ations. Although the Code permits individual non business debtors to use Chapter 11, the vast majority of Chapter 11 cases involve business debtors. [Cases: Bankruptcy (;::>350l.] 2. A business reorganization conducted under this chapter; REORGANIZATION (1). Chapter 12. 1. The chapter of the United States Bank ruptcy Code prOViding for a court-approved debt payment relief plan for family farmers with a regular income, allowing the farmer's net income to be col lected by a trustee and paid to creditors. [Cases: Bank ruptcy (;::>3671.] 2. A bankruptcy case filed under this chapter. Also termed (in sense 2) family-farmer bankruptcy; farmer bankruptcy. Chapter 13. 1. The chapter of the United States Bank ruptcy Code allowing a person's earnings to be col lected by a trustee and paid to creditors by means of a court-approved debt-repayment plan if the person has a regular income . A plan filed under Chapter 13 is sometimes called a wage-earner's plan, a wage-earner plan, or an income-based plan. Chapter 13 allows the debtor to propose a plan of rehabilitation to extend or reduce the balance of any obligations and to receive a discharge from unsecured debts upon completion of the payments under the plan. A plan made in good 265 faith will be confirmed ifthe creditors receive what they would have received under Chapter 7, and if the plan pledges all of the debtor's disposable income for three years. [Cases: Bankruptcy (;:::>3701.] 2. A bankruptcy case filed under this chapter. Chapter 20. Slang. Bankruptcy. A debtor who files a Chapter 7 petition and receives a discharge, and then immediately files a Chapter 13 petition to deal with remaining nondischargeable or secured debts. [Cases: Bankruptcy C-;:)2235.] Chapter 22. Slang. Bankruptcy. A debtor, usu. a corpora tion, that fi1es a second Chapter 11 petition shortly after a previous Chapter II petition has failed, because the debtor has become insolvent again or is again threat ened with insolvency. [Cases: Bankruptcy (;:::>2235.] chapter surfing. Slang. A debtor's movement from a filing under one United States Bankruptcy Code chapter to a filing under another. [Cases: Bankruptcy (;:::>2235.] character evidence. See EVIDENCE. characterization. 1. Conflict oflaws. The classification, qualification, and interpretation oflaws that apply to the case. Also termed qualification; classification; interpretation. [Cases: Action (;:::> 17.] "In a conflictof.laws situation, a court must determine at the outset whether the problem presented to it for solution relates to torts, contracts, property. or some other field, or to a matter of substance or procedure. in order to refer to the appropriate law. In other words, the court must ini tially, whether consciously or not, go through the process of determining the nature of the problem; otherWise, the court will not know which choiceoflaw rule to apply to the case. This process is generally called 'characterization,' and sometimes 'classification; 'qualification,' or 'interpre tation.'" 16 Am. Jur, 2d Conflict of Laws 3, at 12 (1998). 2. Family law. The process of classifying property accumulated by spouses as either separate or marital property (or community property). <:haracter loan. See LOAN. character-reformation condition. See conditional bequest under BEQUEST. character witness. See WITNESS. charge, n. (Bc) 1. A formal accusation ofan offense as a preliminary step to prosecution <a murder charge>. Also termed criminal charge. [Cases: Criminal Law (;:::>208.1.)2. An instruction or command <a mother's charge to her son>. 3. JURY CHARGE <review the charge for appealable error>. 4. An aSSigned duty or task; a responsibility <the manager's charge to open and close the office>. 5. An encumbrance, lien, or claim <a charge on property>. 6. A person or thing entrusted to another's care <a charge of the estate>. 7. Price, cost, or expense <free ofcharge>. delinquency charge, A charge assessed against a borrower for failing to timely make a payment. finance charge. See FINANCE CHARGE. late charge. An additional fee assessed on a debt when a payment is not received by the due date. charge d'affaires noncash charge. A cost (such as depreciation or amor tization) that does not involve an outlay ofcash. special charge. An ordinary cost of business excluded from income calculations . The term is meaning less under generally accepted accounting principles because "special charge" expenses do not meet the GAAP test for extraordinary items. -Also termed one-time charge; unusual charge; exceptional charge. See extraordinary expense under EXPENSE; operating earnillgs under EARNINGS. 8. Parliamentary law. A deliberative assembly's mandate to a committee. -Also termed committee jurisdiction. charge, vb. 1. To accuse (a person) of an offense <the police charged him with murder>. 2. To instruct or command <the dean charged the students to act ethi cally>. 3. To instruct a jury on matters onaw <the judge charged the jury on self-defense>. [Cases: Criminal Law (;:::>769; Federal Civil Procedure (;:::>2173.1(1); Trial C,' 182, 213.] 4. To impose a lien or claim; to encumber <charge the land with a tax lien>. 5. To entrust with responsibilities or duties <charge the guardian with the ward's care>. 6. To demand a fee; to bill <the clerk charged a small filing fee>. chargeable, adj. (Of an act) capable or liable of being charged as a criminal offense <taking that money for personal use would be chargeable>. charge account. A credit arrangement by which a customer purchases goods and services and pays for them periodically or within a specified time. See CREDIT (4). charge and discharge. Equity practice. Court-ordered account filings by a plaintiff and a defendant . The plaintiff's account (charge) and the defendant's response (discharge) were filed with a master in chancery. charge and specification. Military law. A written descrip tion ofan alleged offense. [Cases: Military Justice (;:::> 950-971.] charge-back, n. A bank's deducting ofsums it had pro visionally credited to a customer's account, occurring usu. when a check deposited in the account has been dishonored. UCC 4-214. [Cases: Banks and Banking C= 126, 127,142, 158.] charge bargain. See PLEA BARGAIN. charge conference. (1972) A meeting between a trial judge and the parties' attorneys to develop a jury -Also termed prayer conference. [Cases: Trial charge d'affaires (shahr-zhay da-fair). [French "one in charge of affairs"] A diplomat who is the second in command in a diplomatic mission (hence, subordinate to an ambassador or minister). Also spelled charge des affaires. Pl. charges d'affaires. [Cases: Ambassadors and Consuls C=3.] acting charge d'affaires. A charge d'affaires who performs mission functions when the leader of the 266 charged with notice mission is not available to do so or when the position is vacant. Also termed charges d'affaires ad interim. permanent charge d'affaires. A charge d'affaires with a high enough rank to head a mission (if there is no ambassador or minister). Also termed charge d'affaires en pied; charge d'affaires en titre. charged with notice. Imputed with knowledge or awareness that is legally binding <the defendant was charged with notice of the defect yet failed to act before the plaintiff was injured it>. Also termed put on notice. [Cases: Notice chargee (chahr-jeel. 1. The holder ofa charge on property or of a security on a loan. 2. One charged with a crime. charge off, vb. To treat (an account receivable) as a loss or expense because payment is unlikely; to treat as a bad debt. See bad debt under DEBT. charge sheet. 1. A police record showing the name of each person brought into custody, the nature of the accusations, and the identity of the accusers. 2. Military law. A four-part charging instrument containing

of the accusations, and the identity of the accusers. 2. Military law. A four-part charging instrument containing (1) information about the accused and the witnesses, (2) the charges and specifications, (3) the preferring of charges and their referral to a summary, special, or general court-martial for trial, and (4) for a summary court-martial, the trial record. [Cases: Military Justice (;::>950.] charging instrument. (1951) A formal document -usu. either an indictment or an information -that sets forth an accusation ofa crime. -Also termed accusa tory instrument. charging lien. See LIEN. charging order. (1904) Partnership. A statutory pro cedure whereby an individual partner's creditor can satisfy its claim from the partner's interest in the part nership. [Cases: Partnership (;::> 186.] charitable, adj. 1. Dedicated to a general public purpose, usu. for the benefit of needy people who cannot pay for benefits received <charitable contribution>. [Cases: Charities Taxation (;::>2337.] 2. Involved in or otherwise relating to charity <charitable founda tion>. charitable bequest. See BEQI:EST. charitable contribution. (17c) A gratuitous transfer of property to a charitable social-welfare, religious, sci entific, educational, or other qualified organization . Such a contribution has tax value because it may result in a current income-tax deduction, may reduce federal estate taxes, and can be made free of any gift taxes. [Cases: Internal Revenue C::::>351O-3516, 4172; Taxation (;::>3501.] charitable corporation. See CORPORATION. charitable deduction. See DEDUCTION. charitable gift. See GIFT. charitable immunity. See IMMUNITY (2). charitable lead trust. See TRGST. charitable organization. (1897) Tax. A tax-exempt orga nization that (1) is organized and operated exclUSively for religious, scientific, literary, educational, athletic, public-safety, or community-service purposes, (2) does not distribute earnings for the benefit of private individuals, and (3) does not participate in any way in political candidate campaigns, or engage in substantial lobbying. IRC (26 USCA) 501(c)(3). Also termed charity; 501(c)(3) organization. [Cases: Charities 1-50; Internal Revenue (;::>4048-4069.] charitable purpose. (1877) Tax.lhe purpose for which an organization must be formed so that it qualifies as a charitable organization under the Internal Revenue Code. -Also termed charitable use. [Cases: Internal Revenue (;::>4048, 4172(2).] charitable remainder. See REMAINDER. charitable-remainder annuity trust. See TRUST. charitable-remainder trust. See TRUST. charitable-remainder-trust retirement fund. See char itable-remainder annuity trust under TRUST. charitable trust. See TRUST. charitable usc. 1. See CHARITABLE PURPOSE. 2. See char itable trust under TRUST. charity, n. 1. CHARITABLE ORGANIZATION. 2. Aid given to the poor, the suffering, or the general community for religious, educational, economic, public-safety, or medical purposes. 3. Goodwill. charlatan (shahr-hH,m), n. (17c) A person who pretends to have more knowledge or skill than he or she actually has; a quack or faker. charlatanism, charlatanry, n. charta (kahr-td). (17c) [Law Latin] Hist. 1. A charter or deed. 2. A token by which an estate is held. 3. A royal grant of privileges or liberties. Charta de Foresta. Hist. A charter that defined the extent of the crown's rights and privileges in the royal forests, granted the common people some rights to use the forests, and reduced the penalties for crimes such as poaching. The charter was first promulgated in 1217 and revised in 1225. Also termed Carta de Foresta; Carta Forestae. chartae libertatum (kahr-tee lib-df-tay-t<>m). [Latin] Charters of liberties. Ihis term refers to the two great sources of English liberties: Magna Carta and the Charta de Foresta. chartel. See CARTEL. charter, n. (13c) 1. An instrument that establishes a body politic or other organization, or that grants rights, lib erties, or powers to its citizens or members <Charter of the United Nations>. 2. An instrument by which a municipality is incorporated, specifying its organiza tional structure and its highest laws; specif., a written document making the persons residing within a fixed boundary, along with their successors, a corporation and body politic for and within that boundary, and prescribing the powers, privileges, and duties of the corporation . A city charter trumps all conflicting 267 ordinances. Also termed municipal charter. [Cases: Municipal Corporations "Municipal Charters.- The charter issued to a municipality is in the nature of a constitution to it, being superior to all ordinances enacted by that municipality, though inferior in rank to all State laws of every kind." Frank Hall Childs, Where and How to Find the Law 8 (1922). home-rule charter. A local government's organiza tional plan or framework, analogous to a constitu tion, drawn by the municipality itself and adopted by popular vote ofthe See HOME RULE. [Cases: Municipal Corporations 3. A governmental act that creates a business or defines a corporate franchise; also, the document evidencing this act. bank charter. A document issued by a governmental authority permitting a bank to conduct business. [Cases: Banks and Banking 6.] corporate charter. 1. CERTIFICATE OF INCORPORATION (1).2. A document that one files with the secretary of state upon incorporating a business. _ The corporate charter is often the articles ofincorporation. [Cases: Corporations 18.] special charter. Hist. A legislative act creating a private corporation as opposed to a public, charitable, or edu cational corporation . Special charters were common until the 19th century, when legislatures enacted general incorporation laws that allowed private cor porations to be formed without legislative action. 4. The organic law of an organization; loosely, the highest law of any entity. Cf. ARTICLES OF INCORPO RATION. 5. A governing document granting authority or recognition from a parent organization to a subordi nate or constituent organization, such as a local affili ate or chapter, organized under the first organization's authority; or the instrument granting such authority or recognition. See governing document under DOCUMENT (1). 6. Hist. The writing that accompanies a livery of seisin. -Rather than being an operative element of transfer, the writing was merely evidence of it. 7. The leaSing or hiring of an airplane, ship, or other vessel. [Cases: Shipping C:': 34-58.] 8. CHARTERPARTY. bareboat charter. A charter under which the shipowner surrenders possession and control ofthe vessel to the charterer, who then succeeds to many of the ship owner's rights and obligations. _ The charterer, who provides the personnel, insurance, and other materi als necessary to operate the vessel, is known either as a demise charterer or as an owner pro hac vice. -Also termed demise charter. [Cases: Shipping C::::>41.J "The "demise" or "bareboat" charter is conceptually the easiest to understand. The charterer takes possession and operates the ship durin9 the period of the charter as though the vessel belonged to the charterer. The bareboat charter is thus analogous to the driver who leases a car for a specified period or a tenant who rents a house for a term of years. The charterer provides the vessel's master and crew (much as the lessee-driver personally drives the car) and pays the operating expenses (much as the lessee driver buys the gasoline." David W. Robertson, Steven F. charterparty Friedell & Michael F. Sturley, Admiralty and Maritime Law in the United States 371-72 (2002). demise charter. See bareboat charter. gross charter. A charter under which the shipowner provides all personnel and pays all expenses. slot charter. A charter for one or more slots on a con tainer vessel. -Each slot accommodates a 20-foot container. A slot charter is a form ofvessel-sharing agreement. Cf. space charter. "Slot charters (and vesselsharing agreements) have become increasingly popular in the container trades, as they enable two or more carriers to combine their capacities and offer more frequent service on their routes. If three carriers all serve the New York to Rotterdam route, for example, and each devotes one vessel to the route every three weeks, they can implicitly (with slot charters) join forces and each offer weekly service." David W. Robertson, Steven F. Friedell & Michael F. Sturley, Admiralty and Maritime Law in the United States 377 (2001). space charter. A charter for a part ofa vessel '8 capacity, such as a specified hold or deck or a specified part of the vessel's carrying capacity. _ A space charter is a form ofvessel-sharing agreement. Cf. slot charter. time charter. A charter for a specified period, rather than for a specific task or voyage; a charter under which the shipowner continues to manage and control the vessel, but the charterer deSignates the ports of call and the cargo carried. Each party bears the expenses related to its functions and for any damage it causes. Cf. voyage charter. [Cases: Shipping C::::>40.] voyage charter. A charter under which the shipowner provides a ship and crew, and places them at the disposal ofthe charterer for the carriage ofcargo to a designated port. -The voyage charterer may lease the entire vessel for a voyage or series ofvoyages or may (by "space charter") lease only part ofthe vesseL Cf. time charter. [Cases: Shipping C=41.J "The fundamental difference between voyage and time charters is how the freight or 'charter hire' is calculated. A voyage charter party specifies the amount due for carrying a specified cargo on a specific voyage (or series ofvoyages), regardless of how long a particular voyage takes. A time charter party specifies the amount due for each day that the vessel is 'on hire,' regardless of how many voyages are completed." David W. Robertson, Steven F. Friedel! & Michael F. Sturley, Admiralty and Maritime Law in the United States 377 (2001). charter, vb. 1. To establish or grant by charter <charter a bank>. 2. To hire or rent for temporary use <charter a boat>. charter agreement. See CHARTERPARTY. chartered life underwriter. See UNDERWRITER. chartered ship. See SHIP. charter-land. Hist. See BOOKLAND. charter member. See MEMBER. charter ofaffreightment. See AFFREIGHTMENT. charterparty. (l6c) A contract by which a ship, or a prin cipal part ofit, is leased by the owner, esp. to a merchant for the conveyance ofgoods on a predetermined voyage to one or more places or for a specified period oftime; a 268 chartis reddendis special contract between the shipowner and charterer, esp. for the carriage ofgoods by sea. Also written charter-party; charter party. Often shortened to charter. Also termed charter agreement. [Cases: Shipping "Charter partie (charta partita) is nothing but that which we call a paire of indentures, conteining the covenants and agreements made betweene merchants, or sea faring men touching their marine affaires." John Cowell, The Interpreter (1607). 'The instrument by which a vessel is leased is a charter party. The term is derived from charta partita, Le., a deed of writing divided; in earlier times the charta partita, like the indenture agreement, was prepared in two parts, the ship owner retaining one part and the charterer the other.... While a charter party need not be in writing, most charters today are detailed written documents drawn to accommodate the particular needs of shipper and carrier in a certain type of trade or commerce." Frank L Maraist, Admiralty in a Nutshe//44-45 (3d ed. 1996). chartis reddendis (kahr-tis ri-den-dis). [Latin "for returning charters"] Hist. A writ seeking the return of a charter of feoffment from a person who has been entrusted with the charter but who has refused to deliver it as instructed. See FEOFFMENT. chartophylax (kahr-tof-d-Iaks). Hist. A keeper of records or public instruments; a registrar. chase, n. Hist. A franchise granted by the Crown empow ering the grantee to keep, within a certain district, animals for hunting, i.e., the objects of the chase. _ This franchise was also known as a free chase to contrast it with a chase royal- a chase held by the Crown. common chase. A chase in which everyone is entitled to hunt. chattel (chat-dl). (usu. pI.) (14c) Movable or transferable property; personal property; esp., a physical object capable of manual delivery and not the subject matter of real property. "That Money is not to be accounted Goods or Chattels, because it is not of it self valuable .... Chattels are either personalor real. Personal, may be so called in two respects' One, because they belong immediately to the person of a Man, as a Bow, Horse

may be so called in two respects' One, because they belong immediately to the person of a Man, as a Bow, Horse, etc. The other, for that being any way injuriously withheld from us, we have no means to recover them, but Personal Actions. Chattels real, are such as either appertain not immediately to the person, but to some other thing, by way of dependency, as a Box with Charters of Land, Apples upon a Tree, or a Tree it self growing on the Ground .... [O]r else such as are issuing out of some immoveable thing to a person, as a Lease or Rent for the term of years." Thomas Blount, Nomo-Lexicon: A Law-Dictionary (1670). chattel personal. (16c) A tangible good or an intan gible right (such as a patent). -Also termed personal chattel. [Cases: Property C=-4. chattel real. (16c) A real-property interest that is less than a freehold or fee, such as a leasehold estate. _ The most important chattel real is an estate for years in land, which is considered a chattel because it lacks the indefiniteness oftime essential to real property. Also termed real chattel. [Cases: Property C=-4.] chattel vegetable. A movable article of a vegetable origin, such as timber, undergrowth, corn, or fruit local chattel. Personal property that is affixed to land; FIXTURE. personal chattel. See chattel personal. real chattel. See chattel real. unique chattel. A chattel that is absolutely irreplaceable because it is one of a kind. chattel lien. See mechanic's lien under LIEN. chattel mortgage. See MORTGAGE. chattel-mortgage bond. See BOND (3). chattel paper. (1935) A writing that shows both a monetary obligation and a security interest in or a lease of specific goods. UCC 9-102(1)(11). -Chattel paper is generally used in a consumer transaction when the consumer buys goods on credit The consumer typically promises to pay for the goods by executing a promis sory note, and the seller retains a security interest in the goods. See SECURITY AGREEMENT. [Cases: Secured Transactions C=-88, 142.] "'Chattel paper' means a record or records that evidence both a monetary obligation and a security interest in or a lease of specific goods or of speCific goods and software used in the goods. The term does not include a charter or other contract involving the use or hire of a vessel. If a transaction is evidenced both by a security agreement or lease and by an instrument or series of instruments, the group of records taken together constitutes chattel paper." UCC 9-102(a)(8). electronic chattel paper. (1998) Chattel paper evi denced by a record or records consisting of informa tion stored in an electronic medium and retrievable in perceivable form. UCC 9-102(a)(31). tangible chattel paper. Chattel paper evidenced by a record or records consisting of information inscribed on a tangible medium. UCC 9-102(a)(78). chattel personal. See CHATTEL. chattel real. See CHATTEL. chattel vegetable. See CHATTEL. chaud-medley (showd-med-lee). See CHANCE-MEDLEY. chauntry (chon-tree), n. See CHANTRY. cheapgild. Hist. See ORFGILD (1). -Also spelled cheape gild. cheap stock. See STOCK. cheat, n. 1. CHEATING. 2. A person who habitually cheats; a swindler. cheat, vb. To defraud; to practice deception. cheater. 1. A person who cheats. 2. ESCHEATOR. cheating. (16c) The fraudulent obtaining of another's property by means of a false symbol or token, or by other illegal practices. -Also termed cheating at common law; common-law cheat; cheat. See FRAUD. cheating by false pretenses. (1827) The intentional obtaining of both the possession and ownership of money, goods, wares, or merchandise by means of misrepresentations, with the intent to defraud. See PALSE PRETENSES. Cf. larceny by trick under LARCENY. [Cases: False Pretenses C=-1; Larceny (;:::.) 14.J 269 check, n. (18c) A draft signed by the maker or drawer, drawn on a bank, payable on demand, and unlimited in negotiability . Under UCC 3-104(f), an instrument may be a check even though it is described on its face by another term, such as "money order." - Also spelled cheque. See DRAFT. Banks and Banking(;:::::> 137; Bills and Notes 15, 149.] bad check. (1856) A check that is not honored because the account either contains insufficient funds or does not exist. Also termed hot check; worthless check; rubber check; bounced check; cold check; bogus check; false check; dry check. blank check. (1819) A check signed by the drawer but left blank as to the payee or the amount, or both. bogus check. See bad check. bounced check. See bad check. canceled check. (1839) A check bearing a notation that it has been paid by the bank on which it was drawn. A canceled check is often used as evidence ofpayment. Also spelled cancelled check. cashier's check. (1846) A check drawn by a bank on itself, payable to another person, and eVidencing the payee's authorization to receive from the bank the amount of money represented by the check; a draft for which the drawer and drawee are the same bank, or different branches ofthe same bank. [Cases: Banks and Banking 189.] certified check. (1841) A depositor's check drawn on a bank that guarantees the availability of funds for the check. The guarantee may be by the drawee's signed agreement to pay the draft or by a notation on the check that it is certified. [Cases: Banks and Banking cold check. See bad check. crossed check. A check that has lines drawn across its face and writing that specifies the bank to which the check must be presented for payment. The same effect is achieved by stamping the bank's name on the check. The check's negotiability at that bank is unaffected, but no other bank can honor it. Cf. open check. depository-transfer check. (1976) An unsigned, nonne gotiable check that is used by a bank to transfer funds from its branch to the collection bank. dry check. See bad check. e-check. A paper check that is supplied by a consumer to a payee (usu. a merchant) who uses the check to make an electronic funds transfer . The payee elec tronically scans the check's magnetic-ink charac ter-recognition coding to obtain the bank-routing, account, and serial numbers, then enters the amount ofthe check. This is usu., but not always, done at a point-of-sale terminal. Also termed electronic check. Cf. e-money under MONEY. electronic check. See e-check. false check. See bad check. check-kiting hot check. See bad check. memorandum check. A check that a borrower gives to a lender for the amount ofa short-term loan, with the understanding that it is not to be presented for payment but will be redeemed by the borrower when the loan falls due. open check. A check that may be cashed by any bank. Cf. crossed check. personal check. A check drawn on a person's own account. postdated check. A check that bears a date after the date of its issue and is payable on or after the stated date. raised check. (1867) A check whose face amount has been increased, usu. without the knowledge of the issuer an act that under the UCC is considered an alteration. UCC 3-407. See RAISING AN INSTRU MENT. registered check. A check purchased at a bank and drawn on bank funds that have been set aside to pay that check. rubber check. See bad check. stale check. (1899) A check that has been outstanding for an unreasonable time -more than six months under the Ucc. Banks in jurisdictions adopting the UCC may choose not to honor such a check. UCC 4-404. [Cases: Banks and Banking (;:::::> 137; Bills and Notes (;:::::>404.] teller's check. A draft drawn by a bank on another bank or payable at or through a bank. [Cases: Banks and Banking traveler's check. A cashier's check that must be signed by the purchaser at the time ofpurchase and counter Signed when cashed; an instrument that (I) is payable on demand, (2) is drawn on or payable at or through a bank, (3) is deSignated by the term "traveler's check" or by a substantially similar term, and (4) requires, as a condition to payment, a countersignature by a person whose specimen signature appears on the instrument. UCC 3-104(0. Traveler's checks, which are avail able in various denominations, are typically pur chased from a bank or financing company. [Cases: Banks and Banking (;:::::> 189.] worthless check. See bad check. check, vb. (14c) 1. To control or restrain <handcuffs checked the defendant's movement>. 2. To verify or audit <an accountant checked the invoices>. 3: To investigate <the police checked the suspect's story>. In this sense, check is typically used with up, on, or out. 4. To leave for safekeeping with an attendant <the diner checked her coat at the door>. check-kiting. (1892) The illegal practice of writing a check against a bank account with insufficient funds to cover the check, in the hope that the funds from a preViously deposited check will reach the account before the bank debits the amount of the outstanding check. Also termed kiting; check-flashing. [Cases: Banks and Banking (;:::::> 150.] 270 check-off system "Check kiting consists of drawing checks on an account in one bank and depositing them in an account in a second bank when neither account has sufficient funds to cover the amounts drawn. Just before the checks are returned for payment to the first bank, the kiter covers them by depositing checks drawn on the account in the second bank." United States v. Stone, 954 F.2d 1187, 1188 n.l (6th Cir. 1992). check-off system. The procedure by which an employer deducts union dues directly from the employees' wages and remits those dues to the union. checkpoint search. See SEARCH. checks and balances. (18c) 1he theory ofgovernmental power and functions whereby each branch ofgovern ment has the ability to counter the actions ofany other branch, so that no single branch can control the entire government. For example, the executive branch can check the legislature by exercising its veto power, but the legislature can, by a sufficient majority, override any veto. See SEPARATION OF POWERS. chefe (chef). [Law French fr. French chef"head"] See WERGILD. chemical warfare. See WARFARE. cheque. See CHECK. cherry-stem annexation. See ANNEXATION. chevage (chee-vij). [fr. French chej"head"] Rist. An annual tribute payment from a villein to a lord. Chevage was commonly exacted from villeins for per mission to marry or permission to work outside a lord's domain. Also spelled chivage; chiefage. "Chevage, (chevagium) commeth of the French <chef.L caput}. It signifieth with us, a summe of money paid by villeins to their Lords, in acknowledgment of their slaverie.... It seemeth also to be used, for a summe of a mony, yearely given by a man to another of might &power, for his avowement, maintenance, and protection, as to their head or leader," John Cowell, The Interpreter (1607). chevantia (chd-van-shee-d). [Law French] Hist. A loan ofmoney. chevisance (chev-d-zints). [Law French] His!. 1. A com position; an agreement between a creditor and a debtor. See COMPOSITION. 2. An unlawful or usurious contract; esp" a contract intended to evade the statutes prohibit ing usury. Chevron deference. A two-part test under which a court will uphold a federal agency's construction of a federal statute if (1) the statute is ambiguous or does not address the question at issue, and (2) the agency's interpretation ofthe statute is reasonable. Ifthe court finds that the legislature's intent is clearly expressed in the statute, then that intent is upheld. lhe U.S. Supreme Court enunciated the rule in Chevron U.S.A., Inc. v. Natural Res. De! Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778,2781-82 (1984). -Also termed Chevron rule. [Cases: Statutes ~219(l), 219(2).] cheze (shayz). [French chez "at the home of"] His!. 1. HOMESTEAD. 2. A homestall; a farmyard. Chicago Board of Trade. The commodities exchange where futures contracts in a large number of agricultural products are made. Abbr. CBT; CBOT. [Cases: Com modity Futures Trading Regulation ~3-31.1

Abbr. CBT; CBOT. [Cases: Com modity Futures Trading Regulation ~3-31.1 Chicago Board Options Exchange. The predominant organized marketplace in the United States for trading options. -Abbr. CBOE. chicanery (shi-kay-ndr-ee), n. (17c) Trickery; decep tion. Also termed chicane. chicanerous, adj. chief, n. l. A person who is put above the rest; the leader <chief of staff>. 2. The principal or most important part or position <commander-in-chief>. -chief, adj. chief administrative patent judge. See JUDGE. chiefage. See CHEVAGE. chief baron, Hist. The presiding judge of the English Court of Exchequer. Upon the death of Chief Baron Kelly in 1880, the office was abolished. Through the Judicature Act of 1925, the Lord Chief Justice of England became the presiding judge. See BARONS OF THE EXCHEQUER. chief executive. See EXECUTIVE. chief executive officer. (1854) A corporation's highest ranking administrator, who manages the firm day by day and reports to the board ofdirectors. Abbr. CEO, [Cases: Corporations chief financial officer. The executive in charge of making a company's accounting and fiscal decisions. -Abbr. CFO. [Cases: Corporations 281-369.] chiefinformation officer, The executive who supervises a company's informational infrastructure, including the system for retaining and destroying records. - Abbr. CIa. chief judge, See JUDGE. chief justice. See JUSTICE (2). Chief Justice of England. The former title of the Lord Chief Justice of England, See LORD CHIEF JUSTICE OF ENGLAND. ChiefJustice ofthe Common Pleas. Rist. Formerlv, the presiding judge in the Court ofCommon Pleas. ~ The Judicature Act of 1875 reduced the Court of Common Pleas to the Common Pleas Division. In 1881 the last Chief Justice of the Common Pleas, Lord Coleridge, was appointed Lord ChiefJustice of England, merging the Common Pleas Division and the Queen's Bench Division. The Lord Chief Justice of England now exercises the powers formerly belonging to the Chief Justice of the Common Pleas. Cf. LORD CHIEF JUSTICE OF ENGLAND. ChieOustice ofthe United States. The formal title ofthe officer who is the ChiefJustice of the Supreme Court of the United States. Often shortened to the Chief Justice. [Cases: Judges chief justiciar. See JUSTICIARY (2). chieflease. See HEADLEASE. chieflord. Hist. The immediate lord of a fee, to whom the tenants were directly and personally responsible. chief magistrate. See MAGISTRATE (1). 271 ChiefofProtocol. An officer in the U.S. Department of State responsible for managing the Office of Protocol and advising the President, Vice President, Secretary of State, and other U.S. officials on matters of diplomatic procedure governed by law or international custom and practice. chief operating officer. A manager who supervises a company's day-to-day operations and who usu. reports to the chief executive officer. -Abbr. COO. [Cases: Corporations (::::::>31O(l).] chief rents. Hist. A small, fixed, annual rent payable to the lord by a freeholder ofa manor; annual quit rent. Chief rents 'were abolished in 1922. See QUIT RENT. chiefry (cheef-ree). Hist. A small rent paid to the sov ereign by a feudal landholder. -Also spelled chiefrie; chiefery. chief use. A standard for determining a proper tariff clas sification in which a commodity's use is understood by examining the intended users as a whole, rather than individually. child. (bef. 12c) 1. A person under the age of majority. 2. Hist. At common law, a person who has not reached the age of 14.3. A boyar girl; a young person. 4. A son or daughter. "The word 'children' is normally used to denote issue of the first generation only." Restatement of Property 267, cmt. c (1940). 5. A baby or fetus. See JUVENILE; MINOR. PI. children. abortive child. Civil law. A stillborn child or a child born so prematurely that it cannot and does not survive 24 hours. abused child. A child who has been subjected to physical or mental neglect or harm. See child abuse under ABUSE. [Cases: Infants adopted child. A child who has become the son or daughter of a parent or parents by virtue oflegal or equitable adoption; ADOPTEE. See ADOPTION. [Cases: Adoption (::::::> 18] afterborn child. (18c) A child born after execution of a will or after the time in which a class gift closes. Also spelled after-born child. See afterborn heir under HEIR. Cf. posthumous child. [Cases: Wills ~~524.] battered child. A child upon whom physical or sexual abuse has been inflicted, usu. by a relative, caregiver, or close family friend. See child abuse under ABUSE; domestic violence under VIOLENCE; BATTERED-CHILD SYNDROME. [Cases: Criminal Infants 15,156.] biological child. See natural child (1). child in need ofsupervision. A child who has commit ted an offense that only children can commit, such as being ungovernable and disobedient to parents, running away from home, violating a curfew, being habitually truant from school, violating age restric tions on the purchase or possession of liquor or tobacco, or the like. -Also termed person in need child ofsupervision; minor in need ofsupervision. -Abbr. CHINS. [Cases: Infants (::::::> 151.] child out ofwedlock. See illegitimate child. child with disabilities. Under the Individuals with Dis abilities Education Act, a child who needs special education or related services because of (1) mental retardation, (2) a hearing, language, or visual impair ment, (3) a serious emotional disturbance, or (4) another health impairment or specific learning dis abilitv. See INDIVIDUALS WITH DISABILITIES EDUCA TION ~CT. [Cases: Schools~) 148(2.1).] delinquent child. (1902) A child who has committed an offense that would be a crime if committed by an adult. A delinquent child may not be subject to the jurisdiction of the juvenile court if the child is under a statutory age. Cf. child in need ofsupervi sion; JUVENILE DELINQUENT. [Cases: Infants ('>;:'153.] [Cases: InfantsC:::> 154.1,157,158; Social Security and Public Welfare (::::::> 194.2.] dependent child. A needy child who has been deprived of parental support or care because of the parent's or other responsible person's death, absence from the home, phYSical or mental incapacity, or (in some cases) unemployment. -This definition was formerly found in Aid to Families with Dependent Children (AFDC), 42 USCA 606(a). When that program was replaced with Temporary Assistance to Needy Families (TANF), the definition was eliminated although sections of TANF refer to it (see, e.g., 42 USCA 672(h. C-='154.1, 157, 158; Social Security and Public Welfare 194.2.] deprived child. A child who (1) lacks proper parental care or control, subsistence, education, or other care and control for his or her phYSical, mental, or emo tional well-being, (2) has been placed for care or adoption in violation of the law, (3) has been aban doned, or (4) is without a parent, guardian, or legal custodian. Uniform Juvenile Delinquency Act, 18 USCA 5031 et seq. Cf. neglected child. [Cases: Infants disobedient child. See incorrigible child. foster child. (12c) A child whose care and upbring ing are entrusted to an adult other than the child's natural or adoptive parents, usu. by an agency. - A foster child may receive informal, voluntary care by someone (often a grandparent, other relative, or neighbor) who enters into an agreement with the parent or who simply substitutes for the parent as nec essary to ensure the child's protection. More formally, the child may be part ofthe federal-state foster-care program that identifies, trains, and pays caregivers who will provide family care for children who lack parents or cannot safely remain with their biologi calor adoptive parents. -Also termed (archaically) fosterling. See foster parent under PARENT. [Cases: Infants e=-~226.] genetic child. See natural child (1). handicapped child. A child who is mentally retarded, deaf or hearing-impaired, speech-impaired, blind or visually disabled, seriously emotionally disturbed, or orthopedically impaired, or who because of specific learning disabilities requires special education. Schools c)::> 148(2.1).] illegitimate child. (17c) A child who was not conceived or born in lawful wedlock, nor later legitimated . At common law, such a child was considered the child of nobody (nullius filius) and had no name except one that was gained by reputation. Being no one's child, an illegitimate child could not inherit, even from the mother, but all states now allow maternal inheritance. In cases such as Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509 (1968), and Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73,88 S.Ct. 1515 (1968), the Supreme Court held that limitations on a child's right to inherit from his or her mother were unconstitu tional. As a result, states changed their laws to permit full maternal inheritance. Full paternal inheritance is permitted ifthe child can prove paternity in accor dance with state law (the proof varies from state to state). This burden of proof, uniquely imposed on an illegitimate child, is constitutionally permissible. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518 (1978). ~Also termed bastard; child out of wedlock; nonmarital child; (archaically) natural child. Cf. BASTARD. [Cases: Children Out-of-Wedlock incorrigible child. (17c) A child who habitually refuses to obey his or her parents or guardians. ~ Also termed disobedient child. intended child. The child who is intended to result from a surrogacy contract. See surrogate parent under PARENT; surrogate mother under MOTHER; intentional parent under PARENT; legalfather under FATHER; SUR RoGAcy CONTRACT. [Cases: Infants C':-;) 15; Parent and Child legitimate child. (l7c) 1. At common law, a child con ceived or born in lawful wedlock. 2. Modernly, a child conceived or born in lawful wedlock, or legitimated either by the parents' later marriage or by a declara tion or judgment of legitimation. [Cases: Children Out-of-Wedlock (;:;;, l.] mantle child. Hist. A child born out of wedlock and later legitimated when the parents are married, tra ditionally by standing under a cloak with the parents during the marriage ceremony. [Cases: Children Out of-Wedlock (;:;;, 11.] "Our law. . has no need to distinguish between various sorts of illegitimate children. A child is either a legitimate child or a bastard .... In the sharp controversy over this principle ... the champion of what we may call the high church party alleged that old English custom was in accord with the law of the church as defined by Alexander III. Probably there was some truth in this assertion. It is not unlikely that old custom, though it would not have held that the marriage in itself had any retroactive effect, allowed the parents on the occasion of their marriage to legitimate the already existing offspring of their union. The children were placed under the cloak which was spread over their parents during the marriage ceremony, and became 'mantle children.' We hear of this practice in Germany and France and Normandy; but we have here rather an act of adoption than a true legitimation. and it would not have fully satisfied the church." 2 Frederick Pollock & Frederic W. Maitland, The History ofEnglish Law Before the Time of Edward I 397-98 (2d ed. 1899). natural child. (16c) 1. A child by birth, as distinguished from an adopted child. Also termed biological child; genetic child. [Cases: Children Out-of-Wedlock (;:;;, 1; Parent and Child 1.] 2. A child that is genetically related to the mother and father as opposed to a child conceived by donor insemination or by egg donation. [Cases: Children Out-of-Wedlock (;:;;, 15; Parent and Child (;:;;'20.]3. Archaic. An illegitimate child, usu. one acknowledged by the father. neglected child. (l7c) 1. A child whose parents or legal custodians are unfit to care for him or her because of cruelty, immorality, or incapacity. [Cases: Infants (;:;;, 156.] 2. A child whose parents or legal custodi ans refuse to provide the necessary care and medical services for the child. Cf. deprived child.

child whose parents or legal custodi ans refuse to provide the necessary care and medical services for the child. Cf. deprived child. [Cases: Infants nonmarital child. See illegitimate child. posthumous child. (17c) A child born after a parent's death. Ordinarily, the phrase posthumous child suggests one born after the father's death. But in at least one case, a legally dead pregnant woman was kept on life-support machines until the child could be safely delivered; so it is possible for a mother's post humous child to be born. Cf. child. [Cases: Descent and Distribution Wills C=:>497(7).] prostituted child. See child prostitute under PROSTI TUTE. quasi-posthumous child. Civil law. A child who becomes a direct heir of a grandfather or other male ascendant because of the death ofthe child '8 father. special-needs child. 1. A child with medical problems or with a physical, mental, or emotional handicap. 2. A child that is likely to be unadoptable because of medical problems or phYSical, mental, or emotional handicaps, or by reason ofage or ethnic background. See ADOPTION ASSISTANCE AND CHILD WELFARE ACT. stepchild. The child of one's spouse by a previous marriage. A stepchild is generally not entitled to the same legal rights as a natural or adopted child. For example, a stepchild has no right to a share ofan intestate stepparent's property. [Cases: Descent and Distribution (;:;;,31; Wills (;:;;,497(7).] unborn child. A child not yet born, esp. at the happen ing ofsome event. child abuse. See ABUSE. child-abuse and -neglect reporting statute. Family law. A state law requiring certain persons, among them healthcare providers, teachers, and child-care workers, to report suspected child abuse . By 1967, every state had adopted some form of reporting statute. In the Child Abuse Prevention and Treatment Act (42 USCA 273 5101-5157), Congress provided federal funding for all states that implement federal standards in their reporting statutes and defined child maltreatment broadly. See CHILD ABUSE PREVENTION AND TREAT MENT ACT. [Cases: Infants C~13.5.J Child Abuse Prevention and Treatment Act. Family law. A federal statute that provides limited funding to states for preventing, identifying, and treating child abuse and neglect . Enacted in 1974, the Act was amended in 1996 to reinforce an emphasis on child safety. The Act established the National Center on Child Abuse and Neglect in the Department of Health and Human Services. Its function is to study child abuse, conduct research into its causes, and make grants to agencies for the study, prevention, and treatment of child abuse. 42 USCA 5101-5157. Abbr. CAPTA. See CHILD ABUSE AND -NEGLECT REPORTING STATUTE. child-access prevention statute. See SAFE-STORAGE STATUTE. child-and dependent-care tax credit. See TAX CREDIT. child application. See PATENT APPLICATION. child-benefit theory. See STUDENT-BENEFIT THEORY. child-care fund. Family law. State-government funds set aside to reimburse counties for part of the payments for children's foster care and expenses. child-care rules. Family law. State administrative rules for the care of foster children . In most states, departments concerned with social services establish and enforce the rules governing the welfare of foster children. A few states have created agencies expressly dedicated to services for children. [Cases: Infants C=" 17,226.] child custody. See CUSTODY (2). child destruction. L See FETICIDE. 2. See INFANTICIDE (1). .child endangerment. (1981) The placing of a child in a place or position that exposes him or her to danger to life or health. Also termed endangering the welfare ofa child. [Cases: Infants C='13, 156.] physical child endangerment. Reckless behavior toward a child that has caused or could cause serious physical injury. -Sometimes shortened to physical endangerment. [Cases: Infants 13, 156.J child in need ofsupervision. See CHILD. child-kidnapping. See KIDNAPPIKG. child labor. The employment ofworkers under the age of majority. This term typically focuses on abusive prac tices such as exploitative factory work; slavery, sale, and trafficking in children; forced or compulsory labor such as debt bondage and serfdom; and the use of children in prostitution, pornography, drug-trafficking, or anything else that might jeopardize their health, safety, or morals. Some writers restrict the term to activities forbidden by the International Labor Organization's minimum-age conventions. See ILO Minimum Age Convention ch. 138 (1973). See FAIR LABOR STANDARDS child-sexual-abuse accommodation syndrome ACT. Cf. CHILD WORK. [Cases: Infants C='14; Labor and Employment <>::>2245.] oppressive child labor. Under the Fair Labor Standards Act, the employment of workers under the age of 16 in any occupation, or the employment of those 16 to 18 years old in particularly hazardous occupations. 29 USCA 203(1); 29 CFR 570.1(b). The Secretary of Labor may assess civil penalties of up to $10,000 per violation. 29 USCA 216(e). Also termed harmful child labor. [Cases: InfantsC= 14; Labor and Employ ment child-labor law. (1904) A state or federal statute that protects children by prescribing the necessary working conditions for children in a workplace. See FAIR LABOR STANDARDS ACT. [Cases: Infants C;=> 14.J child maltreatment. See child abuse under ABUSE. child molestation. See MOLESTATION. childnapping. See child-kidnapping under KIDNAP PING. child neglect. See KEGLECT. Child Online Protection Act. A 1998 federal statute designed to control child pornography on the Internet by prohibiting Internet speech that is "harmful to minors." Unlike the Communications Decency Act, COPA does not apply to e-mail or chat-room com munications. Among other things, COPA applies to sexually explicit material that appears to depict minors, even ifthe people are actually over 18 or the images are computer-generated and do not depict living people. After several court challenges, COPA was held uncon stitutional and never became effective. Abbr. COPA. [Cases: Telecommunications C;=> 1349.] child out of wedlock. See illegitimate child under CHILD. child pornography. See PORNOGRAPHY. child prostitute. See PROSTITUTE child prostitution. See PROSTITUTION. Child Protective Services. A governmental agency responsible for investigating allegations ofchild abuse and neglect, providing family services to the parent or guardian of a child who has been abused or neglected, and administering the foster-care program. -Abbr. CPS. -Also termed (in some states) Department of Social Services; (esp. in Michigan) family independence agency. [Cases: Infants C;=> 17.J child-rearing. Family law. The practices and customs followed in the upbringing of children, whether in a particular family or in society generally. -Sometimes written childrearing. children's court. See juvenile court under COURT. child's attorney. See attorney ad litem under ATTORNEY. child-sexual-abuse accommodation syndrome. The supposed medical and psychological condition of a child who has suffered repeated instances of sexual abuse, usu. from a relative or family friend . This 50 called "syndrome" has been repudiated by the scientific community. It cannot be validated and thus cannot dis criminate between abuse and nonabuse cases. Abbr. CSAAS. -Also termed child-sexual-abuse syndrome. [Cases: Criminal Law C::>474.4(4).] child's income tax. See kiddie tax under TAX. child-slaying. See INFANTICIDE. child's part. An inheritance that, by statute in some states, a widow may claim in lieu ofdower or what she would receive under her husband's will. _ The amount is calculated by counting the widow as a child of the decedent, sharing equally any entitlement with any other child. [Cases: Descent and Distribution C=' 52-67.] . child-stealing. See child-kidnapping under KIDNAP PING. child support. (1939) Family law. 1. A parent's legal obli gation to contribute to the economic maintenance and education of a child until the age ofmajority, the child's emancipation before reaching majority, or the child's completion ofsecondary education. -The obligation is enforceable both civilly and criminally. [Cases: Child Support C:='22.] 2. In a custody or divorce action, the money legally owed by one parent to the other for the expenses incurred for children of the -The right to child support is the child's right and cannot be waived, and any divorce-decree provision waiving child support is void. Cf. ALIMONY. [Cases: Child Support C:='8,47, 100-165.] decretal child support. Child support provided for in a divorce decree or modification order. [Cases: Child Support (:;::::>223, 342.] child-support-enforcement agency. Family law. A gov ernmental agency that helps custodial parents collect child support. -Under Title IV(D) ofthe Social Security Act (42 USCA 654), states are required to establish child-support-enforcement agencies to collect support for obligee parents. Although the agencies are governed by a set of federal standards, each state has its own central registry. The CSE agency may operate through the state's Department ofHuman Services, its Depart ment of}ustice, its tax agency, or its Attorney General's office. The agency can help locate a missing parent and establish paternity. The agency works to establish and enforce support orders. -Abbr. CSE agency. Also termed IV-D agency. See OFFICE OF CHILD-SUPPORT ENFORCEMENT. [Cases: Child Support 189.] child-support guidelines. Family law. Statutory pro visions that govern the amount of child support that an obligor parent must pay. -Child-support guide lines have been developed in every state in response to the creation of the Temporary Assistance to Needy Families program. 42 USCA 601-603a. [Cases: Child Support C='142-149.J Child Support Recovery Act of 1994. A statute that made it a federal offense for a person to willfully fail to pay past-due child support for a child who lived in another state. _ This Act has been replaced by the Deadbeat Parents Punishment Act. 42 USCA 228. See DEADBEAT PARENTS PUNISHMENT ACT. [Cases: Child Support C=652.] childwit. Hist. A fine levied by a master on a servant who became pregnant without the master's consent. child with disabilities. See CHILD. child work. A minor's salutary employment, esp. within the family. _ This term is sometimes used in contrast to child labor, the idea being that child work within the family unit can be a positive experience. Some scholars and courts note that child work can facilitate vocational skills and social adaptation, and is often viewed as an expression offamily solidarity. Cf. CHILD LABOR. chill, vb. To inhibit or discourage <chill one's free-speech rights>. chilling a sale. (1881) The act of bidders or others who combine or conspire to discourage others from attempting to buy an item so that they might buy the item themselves for a lower price. chilling effect. (1952) 1. Constitutional law. The result of a law or practice that seriously discourages the exercise of a constitutional right, such as the right to appeal or the right offree speech. 2. Broadly, the result when any practice is discouraged. Also termed chilling bidding; chilling the bidding. chilling the bidding.!. See CHILLING EFFECT. 2. See CHILLING ASALE. Chimel search. See protective search under SEARCH. chimney money. See HEARTH MONEY (1). Chinese Wall. See ETHICAL WALL. CHINS. abbr. See child in need ofsupervision under CHILD. chirograph (kI-ril-graf), n. 1. Civil law. A handwritten instrument. 2. A written deed, subscribed and wit nessed. -Also termed cyrographum. 3. Such a deed in two parts from a single original document separated by an indented line through the word "chirographum," each party retaining one part. 4. Hist. FOOT OF TUE FINE. -Also termed (in sense 4) cyrographarius. chirographic, adj. "Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parch ment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a straight or indented line, in such a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated svngrapha by the canonists; and with us chirographa, or handwritings." 2 Will

denominated svngrapha by the canonists; and with us chirographa, or handwritings." 2 William Blackstone, Commentaries on the Laws ofEngland ! 295-96 (1766). chirographer offines (kr -rahg-r.:l- filr). !fist. A Court of Common Pleas officer who engrossed court-ordered fines and delivered indentures ofthe fines to the parties. See INDENTURE OF AFINE. "Chirographer offvnes . .. signifieth in our common lawe, him in the common bench office, that ingrosseth fines in that court acknowledged, into a perpetuall record, after they be acknowledged, and fully passed by those officers, by whome they are formerly examined; and that writeth and delivereth the indentures of them unto the party. This 275 churning officer also maketh two indentures, one for the buier, i chose in action. (l7c) 1. A proprietary right in personam, another for the seller; and maketh one other indented peece, containing also the effect of the fine, which he deliv ereth over to the custos brevium, that is called the foote of the fine." John Cowell, The Interpreter (1607). chirographum (kr-rog-r;}-f"m). [Latin fro Greek] Roman law. A handwritten document, usu. an undertaking or acknowledgment of debt written in the debtor's own hand. PL chirographa. chit. (l8c) 1. A signed voucher for money received or owed, usu. for food, drink, or the like. 2. A slip ofpaper with writing on it. chivage. See CHEVAGE. chivalry (shiv-;}l-ree). (14c) Hist. Tenure held by knight service; tenure in which a person held land in exchange for military service of the highest order. See KNIGHT SERVICE. "Chivalry is a tenure of land by knight's service: for the better understanding whereof it is to be known, that there is no land but is held mediately or immediately of the crown by some service or other; and therefore all our freeholds that are to us and our heirs are called fees, as proceeding from the bounty of the king for some small yearly rent, and the performance of such services as originally were imposed upon the land at the giving thereof .... And these services are all by Littleton divided into two sorts, chivalry and soccage: the one martial and military; the other clownish and rustical." Termes de la Ley 83-84 (1 st Am. ed. 1812). choate (koh-it or -ayt), adj. (1878) 1. Complete in and ofitself. 2. Having ripened or become perfected. Cf. INCHOATE. -choateness, n. choate lien. See LIEN. choice. See FREEDOM OF CHOICE. choice ofevils. See NECESSITY (1). choice-of-evils defense. See lesser-evils defense under DEFENSE (1). choice-of-exclusive-forum clause. See FORUM-SELEC . TION CLAUSE. choice ofjurisdiction. Conflict oflaws. The choice ofthe state (or country) that should exercise jurisdiction over a case. [Cases: Action C=> 17.J choice oflaw. (1900) The question of which jurisdiction's law should apply in a given case. Cf. CONFLICT OF LAWS. [Cases: Action C=' 17.) choice-of-law clause. (1957) A contractual provision by which the parties deSignate the jurisdiction whose law will govern any disputes that may arise between the parties. Cf. FORUM-SELECTION CLAUSE. [Cases: Con tracts '::;:::'129(1).] choice voting. See single transferable vote under VOTE (1). chop-shop, n. Criminal law. A garage where stolen auto mobiles are dismantled so that their parts can be sold separately. [Cases: Receiving Stolen Goods C=> 1.] chorepiscopi. See SUFFRAGAN. chose (shohz), n. [French] (l7c) A thing, whether tangible or intangible; a personal article; a chatteL See THING. such as a debt owed by another person, a share in a joint-stock company, or a claim for damages in tort. [Cases: Property C=>5.5.] 2. The right to bring an action to recover a debt, money. or thing. 3. Personal property that one person owns but another person possesses, the owner being able to regain possession through a lawsuit. -Also termed thing in action. "Chose, or, thing in action is, when a man hath cause. or may bring an action for some duty due to him: as an action of debt ... and because they are things whereof a man is not possessed, but for recovery of them is driven to his action, they are called things in action." Termes de la Ley 85 (1st Am. ed. 1812). "The term chose in action has been in common use for a long time, but some doubts have been recently raised as to its precise meaning. (See Law Quarterly Review for 1893. 1894, 1895.) A Divisional Court, however, has now given us the following definition: "'chose in action" IS a known legal expression used to describe all personal rights of property which can only be claimed or enforced by action, and not by taking physical possession.' Torking ton v. Magee, [1902] 2 K.B. p. 430. The phrase 'rights of property' does not seem a very happy one, but it is quite clear that the court meant to include under the term chose in action rights under a contract and rights of action arising from breach of contract." William R. Anson, Principles of the Law of Contract 362 n.(b) (Arthur L. Corbin ed., 3d Am. ed. 1919). chose in possession. Personal property for which title and possession unite in the same person. Also termed thing in possession. chose local. A fixed chattel. chose transitory. A movable chattel. christian ita tis curia (kris-tee-an-;}-tay-tis kyoor-ee-a). [Latin "Christian court"] See ecclesiastical court (2) under COURT. Christian name. See personal name under NAME. church court. See ecclesiastical court under COURT. church law. See CANON LAW (2). church rates. Hist. Eccles. law. A tax levied on parishio ners by churchwardens and other representatives of the parish to raise funds for the repair and maintenance of the parish church . The power to set and collect such taxes was abolished in England in 1868. churl (chari). See CEORL. churn, burn, and bury, vb. (Of a stockbroker) to make numerous risky trades in (an account) and, as a result, squander the customer's money . The term denotes the action involved in particularly reckless churning. churning, n. (1953) 1. Securities. A stockbroker's exces sive trading ofa customer's account to earn more com missions rather than to further the customer's interests; an abuse of a customer's confidence for personal gain by frequent and numerous transactions, disproportion ate to the size and nature ofthe customer's account . Under securities laws, the practice is illegal a viola tion of lO(b) ofthe Exchange Act (15 USCA 78j(b. But because the fraud is the activity as a whole and there is no communication between the broker and the customer about a specific sale of securities, there CIA 276 is not normally a right of action for fraud based on churning. [Cases: Brokers Securities Regulation C:=>60.32(3).] 2. Tax. A transfer of property that does not result in a significant change ofownership or use of the property, usu. to make the property eligible for amortization or a more favorable method ofdeprecia tion. See ANTICHURNING RULE. churn, vb. CIA. abbr. (1951) CENTRAL INTELLIGENCE AGENCY. CID. abbr. CIVIL INVESTIGATIVE DEMAND. CIF. abbr. COST, INSURANCE, AND FREIGHT. CIF destination. See COST, INSURANCE, AND FREIGHT. CIF pla<:e of destination. See ClF destination under COST, INSURANCE, AND FREIGHT. Cinque Ports (singk ports). (17c) [Fr. "five ports"] The five English ports -Hastings, Romney, Hythe, Dover, and Sandwich -that were important defenses against French invasion . They received special privileges and were obliged to furnish a certain number ofships for use in war. See COURT OF SHEPWAY. "Cinque ports ... are those special havens that lie towards France, and therefore have been thought by out kings to be such as ought most vigilantly to be proserved [sic] against invasion. In which respect they have a special Governor or Keeper, called by his office, Lord Warden of the Cinque Ports." Thomas Blount, NomoLexicon [n.p.] (1670). "[M]ost of the seaport towns, or at least the more important ones, had local, as distinguished from national or centrally controlled, courts with jurisdiction over the administration of the local sea law. Among these ports was one group which was particularly notable, called the Cinque Ports, or Five Ports~'cinque' being the French word for five. These five ports were of particular importance as naval bases because of their nearness to the continent. In exchange for special naval assistance to the king in time ofwar, they were not only permitted to acquire but also to keep a position of special importance in the field of maritime law, and with it a considerable measure of local, independent jurisdic tion, which served as a reminder in later centuries of the original local character of English admiralty jurisdiction." Charles Herman Kinnane, A First Book on Anglo-American Law 362 (2d ed. 1952). CIO. abbr. 1. The Congress ofIndustrial Organizations, which merged with the AFL in 1955. See AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS. 2. CHIEF INFORMATION OFFICER. CIP. abbr. 1. CONTINUATION-IN-PART. 2. CARRIAGE AND INSURANCE PAID TO. cippi (sip-I). [Law Latin] Hist. See STOCKS. circa (s<lr-ka), prep. [Latin] (1861) About or around (a date, esp. an ancient one); approximately <the book was written circa 1938-1941>. -Abbr. ca.; c. circle conspiracy. See wheel conspiracy under CONSPIR ACY. circuit, n. (I5c) 1. A judicial division in which hearings occur at several locations, as a result ofwhich judges often travel to different locations. [Cases: Courts (::::-:: 45.] 2. A judicial division of the United States -that is, one of the 13 circuits into which the U.S. courts of appeals are organized. 28 USCA 41. circuit court. See COURT. circuit executive. The chief executive officer ofa federal judicial circuit responsible for daily administration of the courts. The circuit executive is the highest-rank ing nonjudicial officer within a circuit. [Cases: Courts (>~55.] circuit judge. See JUDGE. circuit justice. See JUSTICE (2). circuit mediator. An attorney-employee ofa U.S. court of appeals who mediates civil cases, usu. before oral argument. Also termed preargument-conference attorney; settlement counsel. lCases: Alternative Dispute Resolution C:=>470.] circuit-riding, n. Hist. The practice of a judge's travel ing within a legislatively defined circuit to hear cases in one place for a time, then another, and so on. The American practice of circuit-riding was based on the English eyre system, in which justices rode between the shire towns to hold assizes. See circuit-ridingjustice under JUSTICE (2). "The Judiciary Act of 1789 required that the justices of the Supreme Court serve also as judges of the circuit courts. Thejustices complained that circuit riding caused serious physical hardships and diverted them from more impor tant duties in the nation's capital. ... Congress in 1801 abolished circuit riding on grounds of efficiency, but a year later a new Jeffersonian Republican majority restored the practice, obliging each justice to hold circuit court along with a district judge. Gradually, however, improved commu nications, increasing business in the nation's capital, and the strengthening of American nationhood following the Civil War rendered circuit riding anachronistic. Congress in the Judiciary Act of 1869 established a separate circuit court judiciary, although the justices retained nominal circuit riding duties until the Circuit Court of Appeals Act of 1891. Congress officially ended the practice in 1911." The Oxford Companion to the Supreme Court ofthe United States 145 (Kermit L. Hall ed., 1992). circuit-riding justice. See JUSTICE (2). circuity of action. (17c) A procedure allowing dupli cative lawsuits, leading to unnecessarily lengthy and indirect litigation, as when a defendant fails to bring a counterclaim, but later brings a separate action to recover what could have been awarded in the original lawsuit. _ Civil-procedure rules have eliminated many problems associated with circuity of action. [Cases: Equity C:=>52.] "Circuity of action is, when an action is rightfully brought for a duty, but yet about the bush, as it were, for that it might as well have been otherwise answered and deter mined, and the suit saved: and because the same action was more than needful, it is called circuity of action." Termes de la Ley 87 (1 st Am. ed.

was more than needful, it is called circuity of action." Termes de la Ley 87 (1 st Am. ed. 1812). circular letter ofcredit. See LETTER OF CREDIT. circular note. See LETTER OF CREDIT. circulating capital. See floating capital under CAPITAL. circumduction (sar-kam-d;)k-shan). Annulment; can cellation. circumduction ofthe term. Scots law. A judicial decla ration that the time allowed for the parties to present evidence has expired. 277 circum sacra (sar-k<1m say-kr<1). [Law Latin] Hist. Eccles. law. Concerning sacred things. -The phrase appeared in reference to the church's supreme jurisdiction over questions of doctrine, as distinguished from a civil court's jurisdiction over other ecclesiastical matters. Circumspecte agatis (sar-k<1m-spek-tee a-gay-tis). [Latin "that you act circumspectly"] Hist. A directive from the king to his justices detailing the boundaries ofecclesi astical jurisdiction. -The directive, issued circa 1285, was originally in the form of a writ, but over time it acquired statutory authority. The title Circumspecte agatis derives from the first few words ofthe writ: "Rex talibus judicibus salutem; Circumspecte agatis ...." circumstance, n. (often pl.) (13c) An accompanying or accessory fact, event, or condition, such as a piece of evidence that indicates the probability of an event. circumstantial, adj. aggravating circumstance. (17c) 1. A fact or situation that increases the degree ofliability or culpability for a criminal act. 2. A fact or situation that relates to a criminal offense or defendant and that is considered by the court in imposing punishment (esp. a death sentence). -Aggravating circumstances in death penalty cases are usu. prescribed by statute. For a list of aggravating circumstances in a capital-murder case, see Model Penal Code 210.6(3). -Also termed aggravating element; aggravating factor; aggravator. Cf. mitigating circumstance; MITIGATOR. [Cases: Sen tencing and Punishment (;:::>53, 589, 1652.] attendant circumstance. A fact that is situationally relevant to a particular event or occurrence. - A fact finder often reviews the attendant circumstances ofa crime to learn, for example, the perpetrator's motive or intent. exigent circumstances. (1906) 1. A situation that demands unusual or immediate action and that may allow people to circumvent usual procedures, as when a neighbor breaks through a window of a burning house to save someone inside. 2. A situation in which a police officer must take immediate action to effec tively make an arrest, search, or seizure for which probable cause exists, and thus may do so without first obtaining a warrant. -Exigent circumstances may exist if (1) a person's life or safety is threatened, (2) a suspect's escape is imminent, or (3) evidence is about to be removed or destroyed. -Also termed emergency circumstances; special circumstances. extenuating circumstance. See mitigating circum stance. extraordinary circumstances. (17c) A highly unusual set of facts that are not commonly associated with a particular thing or event. incriminating circumstance. (1885) A fact or situation shOWing either that a crime was committed or that a particular person committed it. mitigating circumstance. (17c) L A fact or situation that does not justify or excuse a wrongful act or offense but that reduces the degree of culpability and thus citation may reduce the damages (in a civil case) or the pun ishment (in a criminal case). [Cases: DamagesC::'59; Sentencing and Punishment 590, 1653.J 2. A fact or situation that does not bear on the question of a defendant's guilt but that is considered by the court in imposing punishment and esp. in lessen ing the severity of a sentence. - A court's or jury's power to consider mitigating circumstances cannot be limited by statute. See Lockett v. Ohio, 438 U.S. 586, 606,98 S.Ct. 2954, 2965 (1978). For a list ofmitigating circumstances in a capital-murder case, see Model Penal Code 210.6(4). [Cases: Sentencing and Punish ment C-~54, 590, 1653.] 3. Contracts. An unusual or unpredictable event that prevents performance, such as a labor strike. Also termed extenuating circum stance. Cf. aggravating circumstance. special circumstances. See exigent circumstances. circumstantial evidence. See EVIDENCE. circumvention. 1. Copyright. The act of bypassing, avoiding, removing, deactivating, or impairing a tech nological measure or device that controls access to a work protected by U.S. copyright law. _ Circumven tion of technology that effectively controls access to a work protected by a U.S. copyright is prohibited under 17 USCA 1201. [Cases: Copyrights and Intellectual PropertyC=,67.3.] 2. Scots law. FACILITY AND CIRCUM VENTION. cirliscus (S<1r-lis-k<1s). See CEORL. CIT. abbr. Court of International Trade. See UNITED STATES COURT OF INTERNATIONAL TRADE. citable, adj. Authorized by a court to be used as legal precedent. -In general, published opinions are citable, but unpUblished ones are not. -Also written citeable. Cf. NONCITABLE. [Cases: Courts ~-:>107.J citatio ad reassumendam causam (sI-tay-shee-oh ad ree-as-yoo-men-dam kaw-zam). [Latin "citation to take up a cause again"] Civil law. A citation issued to revive an action that was abated upon one party's death. -The citation issues against the deceased party's heir. Cf. bill ofrevivor under BILL (2). citation, n. (13c) 1. A court-issued writ that commands a person to appear at a certain time and place to do something demanded in the writ, or to show cause for not doing so. 2. A police-issued order to appear before a judge on a given date to defend against a stated charge, such as a traffic violation. Also termed appearance ticket. [Cases: Automobiles (;:::>351.1.] 3. A reference to a legal precedent or authority, such as a case, statute, or treatise, that either substantiates or contradicts a given position. Often shortened to (in sense 3) cite. parallel citation. (1911) An additional reference to a case that has been reported in more than one reporter. _ For example, whereas a Bluebook citation reads "Morgan v. United States, 304 U.S. 1 (1938)," the same reference induding parallel citations reads "Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938)," in which the main citation is to the U.S. Reports and the parallel citations are to the Supreme Court Reporter and to the Lawyers Edition. pinpoint citation. (1961) The page on which a quotation or relevant passage appears, as opposed to the page on which a case or article begins . For example, the number 217 is the pinpoint citation in Baker v. Carr, 369 U.S. 186,217 (1962). Also termed jump citation; dictum page; pineite. 4. A reference to another document in support of an argument, as in a patent prosecution in which a party trying to defeat a claim of patentability refers to a previous patent or a publication to show that the inven tion lacks novelty or nonobviousness. See REFERENCE (4). [Cases: Patents (;=:16.5(1).] front-page citation. Patents. A citation of prior art listed on the front page of a patent application and disclosing a patent or publication that is pertinent to the patentability ofany ofthe application's claims. textual citation. Patents. A reference to a work contain ing prior art listed in a patent application's body. citational, adi. Ofor relating to a citation (esp. a refer ence citation) <citational analysis>. citation order. (1955) The appropriate ranking of the various authorities marshaled in support of a legal proposition. Citations, Law of. Roman law. An A.D. 426 decree of Emperor Valentinian III listing Papinian, Paul, Gaius, Ulpian, and Modestinus as juristic writers who could be cited authoritatively in court. If a majority of the writers agreed on an issue, the judge was bound to follow the majority view. The Law ofCitations allowed the judge to use discretion only if the writers were equally divided and Papinian (whose view prevailed in a tie) was silent on the issue. "In 426 came the famous lex de respansis prudentium -the Law of Citations.... This law lessened the difficulties of the courts in dealing with juristic literature. It excluded a huge mass of conflicting doctrine, the relative value of which had not been determined, and which yet had to be used by the judges as a source of principle on which to base their decisions." W.W. Buckland, A TextBaak of Roman Law from Augustus to Justinian 33 (Peter Stein ed., 3d ed. 1963). citation signal. See SIGNAL (2). citator (SI-tay-tJr). A catalogued list of cases, statutes, and other legal sources showing the subsequent history and current precedential value of those sources. Citators allow researchers to verify the authority of a precedent and to find additional sources relating to a given subject. Citators were originally printed on gummed paper and pasted next to the report ofa cited case. Today, citators are published in volumes and are also available online; the two most popular are Shep ard's and KeyCite. "A citator is a compilation showing where certain cases have been cited in other cases, and whether the provi sions of constitutions and statutes have been repealed, amended, or otherwise affected, or have been judicially construed, or have been cited." Frank Hall Childs, Where and How to Find the Law 61 (1922). citatory (SI-tHor-ee), adj. Of, relating to, or having the power ofa citation or summons detters citatory>. cite, n. See CITATION (3). cite, vb. (I5c) 1. To summon before a court oflaw <the witness was cited for contempt>. 2. To refer to or adduce as precedent or authority <counsel then cited the appropriate statutory provision>. 3. To commend or honor <the soldier was cited for bravery>. citeable. See CITABLE. citizen, n. (l4c) I. A person who, by either birth or natu ralization, is a member ofa political community, owing allegiance to the community and being entitled to enjoy all its civil rights and protections; a member ofthe civil state, entitled to all its privileges. Cf. RESIDENT; DOMI CILIARY. [Cases: Aliens, Immigration, and Citizenship citizen by naturalization. See naturalized citizen. federal citizen. A citizen of the United States. natural-born citizen. A person born within the juris diction of a national government. [Cases: Aliens, Immigration, and Citizenship (;=:689-728.] naturalized citizen. A foreign-born person who attains citizenship by law. Also termed citizen by natural ization. [Cases: Aliens (;=:60-70.] 2. For diversity-jurisdiction purposes, a corporation that was incorporated within a state or has its principal place ofbusiness there. 28 USCA 1332(c)(1). [Cases: Federal Courts (;=:297,300.] citizen-informant. See INFORMANT. citizen's arrest. See ARREST. citizenship, n. 1. The status ofbeing a citizen. 2. The quality of a person's conduct as a member of a com munity. corporate citizenship. See CORPORATE CITIZENSHIP. dual citizenship. See DUAL CITIZENSHIP. Citizenship Clause. (1896) The clause of the U.S. Con stitution providing that all persons born or naturalized in the United States are citizens of the United States and the state they reside in. U.S. Const. amend. XIV, 1, cl. 1. [Cases: Aliens, Immigration, and Citizenship C=652,678.] citizen suit. An action under a statute giving citizens the right to sue violators ofthe law (esp. environmental law) and to seek injunctive relief and penalties. In the 1970s, during the heyday of antipollution statutes such as the Clean Water Act and the Clean Air Act, legislators believed that regulators sometimes become too close to the industries they oversee and, as a result, lack the aggreSSiveness that individual citizens bring to litigation. The statutes therefore authorize, among other things, "private attorneys general" (citizens) to protect the environment. This includes not only injunc tions to stop pollution but also penalties to be paid to the U.S. Treasury. A federal plaintiff must sue under a statutory citizen-suit provision and also satisfy consti 279 civil-damage law tutional-standing requirements. See STANDING. [Cases: Environmental Law (;=>20.] citology. See LEGAL CITOLOGY. citra causae cogn

Environmental Law (;=>20.] citology. See LEGAL CITOLOGY. citra causae cognitionem (sit-rJ kaw-zee kog-nish-ee oh-nJm). [Latin] Hist. Without investigating the cause; absent a judicial investigation. "Citra causae cognitionem .... Formerly all interdiction was judicial, and proceeded upon an investigation of the facts and on its necessity or expediency being made out to the satisfaction of the Court. No other kind of interdiction was allowed, but voluntary interdiction, without such inves tigation, was afterwards admitted." John Trayner, Trayner's Latin Maxims 78 (4th ed. 1894). city. 1. A municipal corporation, usu. headed by a mayor and governed by a city council; a municipality of the highest grade. [Cases: Municipal Corporations (;=>1.1.1 2. The territory within a city's corporate limits. 3. Collec tively, the people who live in this territory. Cf. TOWN. city attorney. (1837) An attorney employed by a city to advise it and represent it in legal matters. Also termed municipal attorney; city counsel; corporation counsel; city solicitor. [Cases: Municipal Corporations (;=>2l4(3).] "There may have been a time in this country when the function of the City Attorney of the average city consisted mainly of advising the Council, preparing an occasional ordinance or handling an infrequent lawsuit. The legal business of the average city is no longer so simple, so infrequent and so nonconsuming of the time of the City Attorney. Every action of the City must be justified by its legal powers, and the City Attorney is the municipal officer whose responsibility it is to decide whether any act or action is within the city's legal powers. The demands of citizens for augmented municipal services, and the result ing diversification of city operations have increased the volume of work to the point where the City Attorney, in many cities, has become a central consultant of the city officers and employees on a day-to-day, hour-to-hour basis." Allen Grimes, The CitV Attomev: A Practice Manual 6 (1978). city auditor. See AUDITOR. city clerk. See CLERK (1). city council. A city's legislative body, usu. responsible for passing ordinances, levying taxes, appropriating funds, and generally administering city government. Also termed (in some states) board ofaldermen. [Cases: Municipal Corporations (;=>80.] city counsel. See CITY ATTORNEY. city court. See municipal court under COURT. city manager. A local official appointed to manage and administer the executive affairs of a municipality in accordance with the policies established by the city councilor other governing body. city judge. See municipal judge under JUDGE. city solicitor. See CITY ATTORNEY. city treasurer. See TREASURER. Civ. Ct. See civil court under COURT. civic, adj. (1656) 1. Ofor relating to citizenship or a par ticular citizen <civic responsibilities>. 2. Ofor relating to a city <civic center>. civil, ad). (14c) 1. Ofor relating to the state or its citizenry <civil rights>. 2. Of or relating to private rights and remedies that are sought by action or suit, as distinct from criminal proceedings <civil litigation>. [Cases: Action C~IS.] 3. Of or relating to any ofthe modern legal systems derived from Roman law <Louisiana is a civil-law jurisdiction>. civil action. See ACTION (4). civil arrest. See ARREST. civil assault. See ASSAULT. civil-authority clause. Insurance. A clause, esp. in a fire insurance policy, insuring against damages caused by firefighters, police, or other civil authority. [Cases: Insurance (;=>2157,2163.] civil bail. See BAIL (1). civil code. (lSc) 1. A comprehensive and systematic leg islative pronouncement ofthe whole private, noncom merciaIlaw in a legal system ofthe continental civil-law tradition. 2. (caps.) The code that embodies the law of France, from which a great part of the Louisiana civil code is derived. -Abbr. Cc. -Also termed Code Civil. See NAPOLEONIC CODE. 3. A codification ofnon criminal statutes. civil cognation. See COGNATION. civil commitment. (1945) 1. A commitment ofa person who is ill, incompetent, drug-addicted, or the like, as contrasted with a criminal sentence . In contrast to a criminal commitment, the length of a civil commit ment is indefinite because it depends on the person's recovery. [Cases: Chemical Dependents (;=>10; Mental Health (;;.;31.) 2. A public demonstration by two people of their intent to be bound together in a marriage-like relationship . The demonstration is usu. in the form of a ceremony, often identical to a wedding, but the rela tionship is usu. not legally recognized and can be dis solved without legal formalities. See CIVIL UNION. 3. A residential program characterized by intense and strict supervision ofsex offenders who have completed their prison sentences but are found to be likely to commit more sex crimes. [Cases: Mental Health (;=>465.] civil-commitment statute. A law that provides for the confinement of a person who is mentally ill, incom petent, drug-addicted, or the like . Unlike criminal incarceration, civil commitment is for an indefinite period. [Cases: Chemical Dependents (;=>12; Mental Health (;=>37.] civil commotion. (16c) A public uprising by a large number ofpeople who, acting together, cause harm to people or property . A civil commotion usu. involves many more people than a riot. -Sometimes shortened to commotion. Cf. RIOT. [Cases: Riot civil conspiracy. See CONSPIRACY. civil contempt. See CONTEMPT. civil corporation. See CORPORATION. civil court. See COURT. civil-damage law. See DRAM-SHOP ACT. 280 civil day civil day. See artificial day under DAY. civil death. See DEATH. civil defense. 1. The practice ofprotecting civilians from dangers caused by hostilities or disasters and helping them recover from the immediate effects of such events. 2. The policies that underlie this practice. civil disability. See DISABILITY (3). civil disobedience. (1866) A deliberate but nonviolent act oflawbreaking to call attention to a particular law or set oflaws believed by the actor to be ofquestionable legitimacy or morality. "Social protest and even civil disobedience serve the law's need for growth. Ideally, reform would come according to reason and justice without self-help and disturbing, almost violent, forms of protest .... Still, candor compels one here again to acknowledge the gap between the ideal and the reality. Short of the millennium, sharp changes in the law depend partly upon the stimulus of protest." Archibald Cox, Civil Rights, the Constitution, and the Courts, 40 N.Y. State B.J. 161, 169 (1968). civil disorder. (l8c) A public disturbance involving three or more people who commit violent acts that cause immediate danger or injury to people or property. See RIOT. [Cases: Riot (;::::> 1.] civil embargo. See EMBARGO (2). civil forfeiture. See FORFEITURE. civil fraud. See FRAUD. civil fruit. See FRUIT. civilian, n. 1. A person not serving in the military. 2. A lawyer practicing in a civil-law jurisdiction. Also termed civilista. 3. A scholar in civil or Roman law. civilian, adj. civil impediment. See IMPEDIMENT. civil imprisonment. Rist. See IMPRISONMENT FOR DEBT. civil infraction. See INFRACTION. civil injury. See INJURY. civil investigative demand. 1. A request for information served by the U.S. Attorney General on any person who may have documents or information relevant to a civil antitrust investigation or to an investigation authorized by section 3 ofthe International Antitrust Enforcement Assistance Act (15 USCA 6202). A civil investiga tive demand can be issued before a civil or criminal action is begun, and can be served on anyone -not just potential defendants thought to possess information pertinent to the investigation. If the Attorney General begins a civil or criminal action, this demand may not be served on persons within the scope of the proceed ing. [Cases: Antitrust and Trade Regulation G::::>954.] 2. A similar request for information served by a differ ent governmental entity, esp. a state attorney general. [Cases: Attorney General (>~J6.1- Abbr. cm. civilis (S;;l-VI-lis), adj. [Latin] Of or according to civil law. civilista (siv-a-lis-ta). [Latin] Rist. See CIVILIAN (2). civiliter (sa-vil-a-tar), adv. [Latin "civilly"]!. Bya civil, as distinguished from a criminal, proceeding. Cf. CRIMI NALITER. 2. Civilly; as a citizen. civiliter mortuus (sa-vil-a-tar mor-choo-as). [LatinJ Civilly dead <the wife ofa man civiliter mortuus had similar rights>. See civil death (1) under DEATH. civilization. (l8c) The transformation of a criminal matter to a civil one by law or judgment. Cf. CRIMI NALIZATION (1). civil justice. (I6c) The methods by which a society redresses civil wrongs. Cf. CRIMINAL JUSTICE (1). civil law. (14c) I. (usu. cap.) One of the two prominent legal systems in the Western world, originally admin istered in the Roman Empire and still influential in continental Europe, Latin America, Scotland, and Louisiana, among other parts of the world; ROMAN LAW. In reference to Romans, civil law (commonly referred to as jus civile) denotes the whole body of Roman law, from whatever source derived. But it is also used to denote that part of Roman law peculiar to the Romans, as opposed to the common law ofall peoples (jus gentium). Also termed jus civile; Romanesque law. Cf. COMMON LAW (2). 2. The body oflaw imposed by the state, as opposed to moral law. 3. The law ofcivil or private rights, as opposed to criminal law or admin istrative law. -Abbr. CL. "The difference between civil law ... and criminal law turns on the difference between two different objects which the law seeks to pursue ~redress or punishment. The object of civil law is the redress of wrongs by compelling com pensation or restitution: the wrongdoer is not punished, he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law. or at least he avoids a loss. On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit the same or similar crimes, to reform him if pOSSible, and perhaps to satisfy the public sense that wrongdoing ought to meet with retribution." William Geldart, Introduction to English Law 146 (O.CM. Yardley ed., 9th ed. 1984). civil liability. See LIABILITY. civil-liability act. See DRAM-SHOP ACT. civil liberty. (usu. pl.) (17c) Freedom from undue govern mental interference or restraint. This term usu. refers to freedom of speech, freedom of the press, freedom of religion, freedom of association, and other liberties associated with the Bill of Rights. In American law, early civil liberties were promulgated in the Lawes and Libertyes ofMassachusetts (1648) and the Bill of Rights (1791). In English law, examples are found in Magna Carta (1215), the Petition of Right (1628), and the Bill ofRights (1689). Also termed civil right. [Cases: Civil Rights G:::::: 1027.] civil list. An annual sum granted by Parliament for the expenses of the royal household. civil marriage. See MARRIAGE (3). civil month. See MONTH (1). civil obligation. 1. See conventional obligation under OBLIGATION (3). 2. See OBLIGATION (2). 281 civil offense. See public tort under TORT. civil partnership. See CIVIL UNION. civil penalty. See PENALTY (1). civil possession. See POSSESSION. civil power. See POLITICAL POWER. civil procedure. (18c) 1. 'The body oflaw usu. rules enacted by the legislature or courts -governing the methods and practices used in civil litigation . An example is the Federal Rules of Civil Procedure. 2. A particular method or practice used in carrying on civil litigation in a particular jurisdiction. civil process. See PROCESS. civil remedy. See REMEDY (1). civil right. (usu. pI.) (l7c) 1. The individual rights of personal liberty guaranteed by the Bill of Rights and by the 13th. 14th, 15th. and 19th Amendments, as well as by legislation such as the Voting Rights Act. Civil rights include esp. the right to vote, the right of due process. and the right ofequal protection under the law. [Cases: Civil Rights (:::::>1027.]2. CIVIL LIBERTY. "At common law a person conVicted of a felony became an outlaw. He lost all of his civil rights

ERTY. "At common law a person conVicted of a felony became an outlaw. He lost all of his civil rights and all of his property became forfeited. This harsh rule no longer prevails. Under modern jurisprudence the civil rights of a person convicted of a crime, be it a felony or misdemeanor, are in nowise affected or diminished except insofar as express statutory provisions so prescribe." Alexander Holtzoff, "Civil Rights of Criminals," in Encyclopedia of Criminology 55 (Vernon C. Branham & Samuel B. Kutash eds., 1949). civil-rights act. (1867) One of several federal statutes enacted after the Civil War (1861-1865) and, much later, during and after the civil-rights movement ofthe 1950s and 1960s, for the purpose ofimplementing and giving further force to the basic rights guaranteed by the Constitution, and esp. prohibiting discrimination in employment and education on the basis of race, sex, religion, color, or age. [Cases: Civil Rights 1002, 1102.1 civil-rights removal. See REMOVAL. civil service, n. 1. The administrative branches ofa gov ernment. [Cases: Officers and Public Employees (:::::> 1l.] 2. The group ofpeople employed by these branches. civil servant, n. Civil Service Commission. A former independent federal agency that supervised the government's per sonnel system . 'The agency was created in 1883 and abolished by Reorganization Plan No.2 of 1978. Its functions were transferred to the Merit Systems Pro tection Board and the Office ofPersonnel Management. See MERIT SYSTEMS PROTECTION BOARD; OFFICE OF PERSONNEL MANAGEMENT. [Cases: Officers and Public Employees C;:;:,72.20.) civil-service reform. 'The use ofbusiness principles and methods instead of the spoils system in the conduct of the civil service, esp. in awarding contracts and appointing officials. civil society. See SOCIETY. claim civil term. See TERM (5). civil union. Family law. A marriage-like relationship, often between members ofthe same sex, recognized by civil authorities within a jurisdiction . Vermont was the first state to recognize civil unions. In December 1999, the Vermont Supreme Court ruled that denying gay couples the benefits of marriage amounted to unconstitutional discrimination. Baker v. State, 744 A.2d 864 (Vt. 1999). Several months later the legislature passed a civil-unions law, which took effect on July 1, 2000. -Also termed civil partnership. Cf. DOMESTIC PARTNERSHIP; same-sex marriage under MARRIAGE (1). [Cases: Marriage (:::::> 17.5,54.] civil war. See WAR. civil wrong. (17c) 1. See WRONG. 2. See TORT. 3. See DELICT. civis (siv-is). [Latin) Roman law. A Roman citizen; a person entitled to the public and private rights associ ated with Roman citizenship. Female citizens had only private rights. -Also termed civis Romanus; civis Romana. civitas (siv-a-tas), n. [Latin) Roman law. 1. A state. 2. An organized community; a territorial unit. civitatis amissio (siv-i-tay-tis a-mish-ee-oh). [Latin] Hist. Loss ofcitizenship. C.}. abbr. 1. See chiefjustice under JUSTICE (2). 2. See chiefjudge under JUDGE. 3. See circuit judge under JUDGE. 4. CORPUS JURIS. CJC. abbr. CODE OF JUDICIAL CONDUCT. CJE. abbr. CONTINUING JUDICIAL EDUCATION. C.J.S. abbr. Corpus Juris Secundum. -Also written CIS. CL. abbr. CIVIL LAW. Claflin trust. See indestructible trust under TRUST. Claflin-trust principle. The doctrine that a trust cannot be terminated by the beneficiaries if the termination would defeat one of the settlor's material purposes in establishing the trust. even if all the beneficiaries seek its termination. _ The Claflin principle, which derives from Claflin v. Claflin, 20 N.E. 454 (Mass. 1889), is often cited as the purest illustration ofdeadhand control," in which the wishes of the now dead settlor prevail over the wishes and needs ofliving beneficiaries. Ifthe settlor is alive and consents to the modification or ter mination ofthe trust, the trust may usu. be terminated, unless it is irrevocable. Trusts in the Claflin category are spendthrift trusts, support trusts, trusts in which the trustee has discretion to make distributions, and trusts in which the beneficiary is entitled to income until a certain age, at which point the beneficiary will receive the principal. claim, n. (13c) 1. The aggregate of operative facts giving rise to a right enforceable by a court <the plaintiff's short, plain statement about the crash established the claim>. Also termed claim for relief (1808). 2. The assertion ofan existing right; any right to payment or to an equitable remedy, even ifcontingent or provisional <the spouse's claim to half ofthe lottery winnings>, 3. A demand for money, property, or a legal remedy to which one asserts a right; esp" the part of a complaint in a civil action specifying what relief the plaintiff asks for, [Cases: Federal Civil Procedure (;:::J680; Pleading (;:::J,72.] donation claim. Property law. A claim for ownership ofland under a donation act or bounty-land warrant. See DONATION ACT; BOUNTy-tAND WARRANT. honest claim. A claim made by someone who believes, however unreasonably, that he or she has a right to something or that there is a chance that such a right exists. liquidated claim. 1. A claim for an amount previously agreed on by the parties or that can be precisely determined by operation oflaw or by the terms of the parties' agreement. 2. A claim that has been deter mined in a judicial proceeding. -Also termed liqui dated demand, [Cases: Accord and Satisfaction C:::.) 10; Interest (;:::.39(2.15).] matured claim. A claim based on a debt that is due for payment. stale claim. (I8c) A claim that is barred by the statute oflimitations or the defense oflaches. Also termed stale demand. [Cases: Equity (;:::J67; Limitation of Actions (;:::J 1, 165.] unliquidated claim. A claim in which the amount owed has not been determined. [Cases: Accord and Satisfaction C:;:, 10; Interest (;:::J39(2.15).] 4. An interest or remedy recognized at law; the means by which a person can obtain a privilege, possession, or enjoyment of a right or thing; CAUSE OF ACTION (1) <claim against the employer for wrongful termina tion>. ancillary claim. (1906) A claim that is collateral to, dependent on, or auxiliary to another claim, such as a state-law claim that is sufficiently related to a federal claim to permit federal jurisdiction over it . The concept of ancillary federal jurisdiction is now contained in the supplemental-jurisdiction statute, 28 USCA 1367. See ancillary jurisdiction and sup plemental jurisdiction under TURISDICTION. [Cases: Federal Courts 20.] colorable claim. 1. A claim that is legitimate and that may reasonably be asserted, given the facts presented and the current law (or a reasonable and logical exten sion or modification ofthe current law). 2. A claim in which the debtor and property holder are, as a matter oflaw, not adverse . An example of a colorable claim is one made by a person holding property as an agent or bailee of the bankrupt. contingent claim. A claim that has not yet accrued and is dependent on some future event that may never happen. counterclaim. See COUNTERCLAIM. cross-claim. See CROSS-CLAIM. frivolous claim. A claim that has no legal basis or merit, esp. one brought for an unreasonable purpose such as harassment. Fed. R. Civ. P. l1(b). supplemental claim. A claim for further reliefbased on events occurring after the original claim was made. S. Bankruptcy. (1842) A right to payment or to an equi table remedy for breach of performance if the breach gives rise to a right to payment . It does not matter whether the right has been reduced to judgment or whether it is liquidated or unliquidated, fixed or con tingent, matured or unmatured, disputed or undis puted, or secured or unsecured. creditor's claim. A claim that a creditor has against a debtor. [Cases: Bankruptcy (;:::J,2825.] involuntary gap claim. A claim that accrues in the ordinary course of business after an involuntary bankruptcy petition has been filed but before the order for relief or the appointment of a trustee . The Bankruptcy Code gives priority to creditors with claims of this type to encourage creditors to continue dealing with a debtor until the debtor has a chance to challenge the involuntary petition. [Cases: Bank ruptcy (;:::J2833.] priority claim. An unsecured claim that, under bank ruptcy law, must be paid before other unsecured claims. The Bankruptcy Code sets forth nine classes of claims, to be paid in order of priority: (1) administrative expenses of the bankruptcy estate, (2) involuntary gap claims, (3) wage claims, (4) contribu tions to employee benefit plans, (5) claims of grain farmers and fishermen, (6) consumer deposits, (7) alimony, maintenance, and child-support claims, (8) tax claims, and (9) capital requirements of an insured depository institution. [Cases: Bankruptcy (;:::J2951-2972.] secured claim. A claim held by a creditor who has a lien or a right of setoff against the debtor's property. [Cases: Secured Transactions 1] unsecured claim. 1. A claim by a creditor who does not have a lien or a right ofsetoff against the debtor's property. 2. A claim by a creditor to the extent that its lien on or right ofsetoff against the debtor's property is worth less than the amount ofthe debt. 6. Patents. PATENT CtAIM. claim and delivery. (1842) A claim for the recovery of specific personal property wrongfully taken or detained, as well as for any damages caused by the taking or detention. This claim derives from the common-law action of replevin. -Sometimes written claim-and-delivery. See REPtEVIN. [Cases: Replevin 1.] claimant, n. (ISc) One who asserts a right or demand, esp, formally; esp., one who asserts a property interest in land, chattels, or tangible things, occupying claimant. See OCCUPYING CLAIMANT. claim check. A receipt obtained for bailed or checked property and surrendered by the holder when the bailee returns the property. claim differentiation. Patents. A canon ofconstruction presuming that each claim in a patent is different in scope and meaning from all other claims; the presump tion that different terms in separate claims must have different meanings ifone ofthe claims would otherwise be rendered superfluous. -The presumption cannot be used by the patentee to broaden claims, and a court will ignore it when convinced that its own interpreta tion ofthe claims is correct. The presumption is stron gest when a different interpretation would be the only way to make a dependent claim more limiting than the independent claim it refers to. -Also termed doctrine ofclaim differentiation. [Cases: Patents (;::) 165(5).] claim dilution. Bankruptcy. The reduction in the like lihood that a debtor's claimants will be fully repaid, including considerations ofthe time value ofmoney. claim for relief. (1808) See CLAIM (1). claim in equity. Rist. A summary proceeding created to eliminate protracted pleading procedure in simple cases. -The claim in equity was established in England in 1850 and abolished in 1860. claim-jumping. 1. The extension of the borders of a mining claim to infringe on other areas or claims. [Cases: Mines and Minerals 2. The filing of a duplicate claim to take advantage of a flaw in the original claim. claim limitation. Patents. In a patent application, a state ment that describes the means for performing a speci fied function without reciting the structure, materials, or acts that support that function. -Claim limitations define the invention by distinguishing it from prior art. [Cases: Patents (;::::clOl(3).] claim ofappeal. See NOTICE OF APPEAL. claim ofcognizance. Rist. An intervention seeking the return of a case to the claimant's own court. -Cogni zance may be claimed by a person, city, or public corpo ration granted the right to hold court. -Also termed claim ofconusance. See COGNIZANCE; CONUSANCE. claim ofconusance. See CLAIM OF COGNIZANCE. claim of liberty. Hist. A petition to the Crown, filed in the Court ofExchequer, seeking the Attorney General's confirmation ofliberties and franchises. claim ofownership. (1818) 1. The possession of a piece of property with the intention ofclaiming it in hostil

ownership. (1818) 1. The possession of a piece of property with the intention ofclaiming it in hostil ity to the true owner. [Cases: Adverse Possession 68.] 2. A party's manifest intention to take over land, regardless oftitle or right. Also termed claim ofright; claim oftitle. claim ofpriority. See BENEFIT OF AN EARLIER FILING DATE. claim of right. 1. Rist. A criminal defendant's plea that the defendant committed the act in question under the mistaken but honest belief that it was legaL -Defendants accused of theft often raised this plea, asserting an honest belief in a superior right to the property taken. The claim ofright could also be raised as a defense against bigamy ifthe defendant honestly believed that an earlier marriage had been legally dis solved. The usual phrase today is honesty defense. Cf. honesty defense under DEFENSE (1). 2. Hist. An owner's action to recover unjustly taken land in fee simple by employing a writ ofcourse. See WRIT OF COURSE. 3. CLAIM OF OWNERSHIP. claim-of-right doctrine. Tax. The rule that any income constructively received must be reported as income, whether or not the taxpayer has an unrestricted claim to it. [Cases: Internal Revenue (;::::c3086, 3118.] claim oftitle. See CLAIM OF OWNERSHIP. claim preclusion. See RES JUDICATA. "[T)he prinCipal distinction between claim preclusion and issue preclusion is ... that the former forecloses litigation of matters that have never been litigated. This makes it important to know the dimensions of the 'claim' that is foreclosed by bringing the first action, but unfortunately no precise definition is possible." Charles Alan Wright, The Law of Federal Courts 100A, at 723 (5th ed. 1994). claim-property bond. See repleVin bond under BOND (2). claims adjuster. See ADTt:STER. claims-consciousness, n. The quality characterizing a legal culture in which people have firm expectations of justice and are willing to take concrete steps to see that justice is done <claims-consciousness in the United States has resulted from certain social changes, not from any character deficiency>. -Also termed rights consciousness. claims-conscious, adj. claims court. See court ofclaims under COURT. Claims Court, U.S. See UNITED STATES COURT OF FEDERAL CLAIMS. claims-made policy. See INSURANCE POLICY. claim the floor. Parliamentary law. To address the chair for the purpose ofbeing recognized as entitled to speak. See FLOOR (1). clam (klam), adv. [Latin] Roman & civil law. Secretly; covertly. _ Under Roman law, an act (such as occupying or altering the condition ofsomeone else's property) was committed clam when it was done with the intent to conceal it in an effort to avoid liability. See INTER DICTUM QUOD VI AUT CLAM. clamea admittenda in itinere per attornatum (klay mee-<"l ad-m<"l-ten-d<"l in I-tin-<"l-ree p<"lr <l-tor-nay-t<lm). [Latin "claim to be admitted at the eyre by an attorney"] Rist. A writ from the king commanding the justices in eyre to permit by attorney the claim of a person employed in the king's service who cannot attend court in person. clameur de haro (klah-m;}r dah-roh). [French] An outcry recognized in the Channel Islands as a protest against trespass to land. -The clameur de haro is a legal remnant ofwhen the Duchy ofNormandy held the islands before England took control in the 13th century. The victim's cry ofharo (repeated 3 times) is popularly supposed to be an abbreviation of Ha Rollo, the first Duke of Normandy. The full cry, Haro, Haro, Haro, a I'aide, man prince, on mefait tort, when registered at the local records office, enjoins the offender from pos sessing the land. See HARROW; HUE AND CRY; GRAND COUTUMIER DE PAYS ET DUCHE DE NORMANDIE. clamor. 1. Hist. A lawsuit; a claim. 2. HUE AND CRY (1). 3. Civil law. A claimant. 4. Civil law. The thing claimed from another. clandestine (klan-des-tin), adj. (16c) Secret or concealed, esp. for illegal or unauthorized purposes. clandestine marriage. See MARRIAGE (1). clare constat (klair-ee kon-stat). [Law LatinJ Scots law. It clearly appears . The phrase referred to a precept, later a writ, for the grant of seisin to a vassal's heir, so called because the opening lines in the declaration stated that it clearly appeared that the grantee was the proper heir. "A Precept of Clare Constat is a deed executed by a sub ject-superior, for the purpose of completing the title of his vassal's heir to the lands held by the deceased vassal, under the g ranter of the precept .... The precept of clare constat proceeded on any evidence, whether judicial or not, which satisfies the superior that the person claiming the entry is heir of the last vassal." William Bell, Bell's Diction ary and Digest of the Law ofScotland 185 (George Watson ed., 7th ed. 1890). Clarity. An international association of lawyers and other professionals who advocate plain language in legal and official documents . Founded in 1983, it has members in more than 25 countries and a system of country representatives. It publishes a journal called Clarity. class, n. (17c) 1. A group of people, things, qualities, or activities that have common characteristics or attri butes <a class of common-stock shares> <the upper middle class>. protected class. A class ofpeople who benefit from pro tection by statute, such as Title VII ofthe Civil Rights Act of1964, which prohibits discrimination based on race, sex, national origin, or religion. [Cases: Civil Rights <:-.~1007, 1107, 1152, 1165.] 2. 'lbe order or rank in which people or things are arranged <she flew first class to Chicago>. 3. A group of people, uncertain in number <a class of beneficia ries>. testamentary class (tes-ta-men-td-ree or -tree). (1865) A group ofbeneficiaries who are uncertain in number but whose number will be ascertainable in the future, when each will take an equal or other proportionate share of the gift. [Cases: Wills C=>521.] 4. Civil procedure. A group of people who have a common legal position, so that all their claims can be efficiently adjudicated in a Single proceeding <a class ofasbestos plaintiffs>. [Cases: Federal Civil Procedure 161-189; Parties C::>35.1.] opt-out class. A plaintiff class, certified under Federal Rule of Civil Procedure 23(b)(3), from which class members may choose to exclude themselves ifthey do not want to be bound by the decisions or settlements reached in the case . Rule 23(e) permits courts to dismiss class members who request exclusion. Class members mav wait until the settlement's terms are announced before choosing to opt out. [Cases: Federal Civil Procedure C:~)180.] settlement class. (1971) Numerous similarly situated people for whom a claimant's representative and an adversary propose a contract specifying the payment terms for the class members' claims in exchange for the release of all claims against the adversary . During the 1980$ and 1990s, mass-tort defendants began using settlement classes as a means of fore closing claims by some unknown number ofexisting and future claimants. See, e.g., Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231 (1997)_ [Cases: Compromise and Settlement C=>67; Federal Civil Procedure C=> 161.1.J class action. (1909) A lawsuit in which the court autho rizes a Single person or a small group of people to represent the interests of a larger group; specif., a lawsuit in which the convenience either of the public or of the interested parties requires that the case be settled through litigation by or against only a part of the group of similarly situated persons and in which a person whose interests are or may be affected does not have an opportunity to protect his or her interests by appearing personally or through a personally selected representative, or through a person specially appointed to act as a trustee or guardian . Federal procedure has several prerequisites for maintaining a class action: (1) the class must be so large that individual suits would be impracticable, (2) there must be legal or factual ques tions common to the class, (3) the claims or defenses ofthe representative parties must be typical ofthose of the class, and (4) the representative parties must ade quately protect the interests of the class. Fed. R. Civ. P. 23. Also termed class suit; representative action. [Cases: Federal Civil Procedure (;:::> 161-189; Parties C=>35.1-35.89.] "The class action was an invention of equity ... mothered by the practical necessity of providing a procedural device so that mere numbers would not disable large groups of individuals, United in interest, from enforcing their equi table rights nor grant them immunity from their equitable wrongs. .. By rule 23 the Supreme Court has extended the use of the class action device to the entire field of federal civil litigation by making it applicable to all civil actions." Montgomery Ward & Co. v. Langer; 168 F.2d 182, 187 (8th Or. 1948). hybrid class action. (1937) Hist. A type of action in which the rights to be enforced were several and varied, but the object was to adjudicate claims that affected or might have affected the specific property in the action. [Cases: Federal Civil Procedure <:-.~166; Parties C=>35.19.] spurious class action. Hist. A former category ofclass action in which the interests of class members are several, not interdependent, and joinder is allowed to avoid multiplicity ofsuits. [Cases: Federal Civil Pro cedure C=> 166; Parties <8=;>35.19.] class-based animus. See ANIMUS (1). class director. See DIRECTOR. class gift. See GIFT. classification. See CHARACTERIZATION (1). classification ofpatents. Patents. 1. The sorting ofinven tions by type into broad classes and narrow subclasses, as an aid in patent searches. 2. Anyone of the several classes into which the inventions are sorted. Also termed (in both senses) office classification; (in sense 2) field ofinvention; (in sense 2) field ofsearch. [Cases: Patents (::::>97.1 classified board of directors. See staggered board of directors under BOARD OF DIRECTORS. classified information. Data or material that, having been designated as secret or confidential, only a limited number ofauthorized persons may know about. classified risk. See RISK. classified tax. See TAX. class legislation. See local and speciallegislatiorl under LEGISLATION. class lottery. See Dutch lottery under LOTTERY. class ofstock. A category ofcorporate shares used when more than one type of stock is issued. See preferred stock and common stock under STOCK. [Cases: Corpo rations (;:::062.] class-one insured. See INSURED. class rate. See RATE. class representative. See REPRESENTATIVE. class suit. See CLASS ACTION. class-two insured. See INSURED. class voting. See VOTING. clausa rebus sic stantibus (klawz-,) ree-b<ls sik stan t,)-b,)s). [Law Latin] Int'llaw. 1. A treaty provision stating that the treaty is binding only as long as the circumstances in existence when the treaty was signed remain substantially the same. 2. A doctrine by which the law supplies such a provision to a treaty that does not expressly contain one; REBUS SIC STANTIBUS . The doctrine may be invoked when a fundamental change in circumstances (1) alters the essential basis for the parties' consent to be bound by the treaty, and (2) radically transforms the extent of the parties' per formances under the treaty. But the doctrine does not apply to treaties establishing geographic boundaries. Vienna Convention on the Law ofTreaties art. 62 (1155 U.N.T.S. 331,8 I.L.M. 679 (1969)). Often shortened to clausa. Also termed clausula rebus sic stantibus; clausula. clause, n. (13c) 1. A distinct section or provision of a legal document or instrument. 2. ITEM (3). -clausal, adj. confidentiality clause. A clause prohibiting the parties to an agreement from discloSing to nonparties the terms of the agreement and, often, anything related to the formation of the agreement. -Also termed nondisclosure clause; no-talk provision. enabling clause. The part of a statute or constitu tion that gives governmental officials the power and authority to put the law into effect and to enforce it. Cf. enacting clause. enacting clause. (17c) The part of a statute stating the legislative authority by which it is made and often the date when it will take effect. A typical enacting clause begins with the words "Be it enacted that ...." The enacting clause of a federal statute is, "Be it

use begins with the words "Be it enacted that ...." The enacting clause of a federal statute is, "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assem bled." Some state constitutions specify the enacting clause for legislation, without which the legislation is void. In codifications of statutes, enacting clauses generally appear not in the text of the statutes but in historical or legislative notes. Cf. enabling clause. [Cases: Statutes (::::>210.) introductory clause. See EXORDIUM. nondisclosure clause. See confidentiality clause. nondisparagement clause. 1. A contractual provision prohibiting the parties from publicly communicating anything negative about each other. 2. Family law. A provision in a divorce decree, marital settlement agreement, parenting agreement, or similar document prohibiting either parent from criticizing the other parent in the presence oftheir child or children. operative clause. A provision under an enacting or resolving clause; a provision that is not a mere recital or preamble. See resolving clause. partial-release clause. A provision in a mortgage or trust deed allowing a certain property or portions of a property to be removed from the effect of a lien in exchange for an agreed payment. This clause is often found in mortgages or trust deeds for proper ties covered by blanket liens, such as subdivisions or condominiums. [Cases: Mortgages (::::>310.] pay-if-paid clause. In a construction contract, a provi sion that makes the general contractor's payment to the subcontractor for work performed contingent on whether the property owner pays the general contrac tor for the work. The subcontractor must assume the risk of nonpayment if the owner fails to pay the general contractor. Courts in some states have held that this risk-shifting violates public policy. Cf. pay when-paid clause. [Cases: Contracts (::::>221(3).] pay-when-paid clause. In a construction contract, a provision requiring a general contractor to pay a subcontractor within a specified period of time after the property owner pays the general contrac tor. A minority of courts have held that the sub contractor bears the risk ofnonpayment ifthe owner becomes insolvent. But because the general contractor normally bears the risk of nonpayment, most courts hold that a subcontractor is entitled to payment for work done despite the owner's insolvency. Cf. pay-if paid clause. [Cases: Contracts (::::>221(3).] resolving clause. The clause that introduces a resolu tion's operative text, usu. beginning with "Resolved, That ...." A resolving clause is comparable to a stat ute's enacting clause.- Also termed operative clause. See enacting clause; RESOLUTION (1). Cf. PREAMBLE (1). strong-arm clause. A provision of the Bankruptcy Code allowing a bankruptcy trustee to avoid a security interest that is not perfected when the bankruptcy case is filed. 11 USCA 544(a)(1). [Cases: Bankruptcy (;:::::>2571-2588,2704,2705.) title-object clause. A provision in a state constitution rendering a statute unconstitutional ifthe contents of the statute are not reasonably reflected in the title or the statute has more than one object. The purpose of the clause is to ensure that the public and legisla ture have notice of the content oflegislation. [Cases: Statutes 105, 107.) whereas clause. 1. See RECITAL (2). 2. See PREAMBLE (1). claused bill oflading. See BILL OF LADING. clause ofaccrual. A provision, usu. found in a gift by will or in a deed between tenants in common, that grants a predeceasing beneficiary's shares to the surviving ben eficiary. Also termed clause ofaccruer. clause paramount. Maritime law. A provision in a charterparty that specifies what jurisdiction's law will govern the agreement, typically incorporating the Carriage of Goods by Sea Act into the charter. See CHARTERPARTY; CARRIAGE OF GOODS BY SF.A ACT. [Cases: Shipping C=)39(1).] clause potestative (poh-tes-tay-tiv). French law. A con tractual provision in which one party reserves the right to annul the contract. clause rolls. Hist. Sealed rolls containing royal writs (close writs) and other documents that the sovereign deemed inappropriate for the public record. -Also termed close rolls. See close writ under WRIT. clausula (klawz-YJ-b), n. [Latin) A clause; a sentence or part ofa sentence in a written instrument or statute. clausula codicillaris (klawz-YJ-b kod-J-si-Iair-is). [Latin] Roman law. A codicillary clause; a codicil that, having been confirmed by a will (even in advance), operated as part ofthe wilL. An unconfirmed codicil created directives that could be effective even in the absence or failure of a will. See FIDEICOMMISSUM. clausula derogativa (klawz-YJ-IJ dJ-rog-J-tI-VJ). [Latin] See DEROGATORY CLAUSE. clausula derogatoria (klawz-YJ-IJ dJ-rog-J-tor-ee-J). See DEROGATORY CLAUSE. clausula rebus sic stantibus (klawz-YJ-IJ ree-bJs sik stan-tJ-bJs). See CLAUSA REBUS SIC STANTIBUS. clausula tenoris (klawz-YJ-b te-nor-is). [Law Latin) Hist. The clause of tenure -that is, the clause in a charter describing the nature of a tenure. clausum (klawz-Jm). [Latin "close; closed") Hist. 1. CLOSE (1). -Also termed clausum. 2. See close writ under WRIT. clausum fregit (klawz-Jm free-jit). [Latin "he broke the close"] See trespass quare clausum fregit under TRESPASS. clausura (klaw-zhuur-a). See CLAUSUM (1). clawback, n. (1953) 1. Money taken back. 2. The retrieval or recovery oftax allowailces by additional forms of taxation. -claw back, vb. claw-back option. The right to require repayment of funds earmarked for a specific purpose if the funds are disbursed for another purpose or in a manner inconsistent with the document governing the speci fied purpose. Clayton Act. A federal statute enacted in 1914 to amend the Sherman Act -that prohibits price dis crimination, tying arrangements, and exclUSive-dealing contracts, as well as mergers and interlocking director ates, if their effect might substantially lessen competi tion or create a monopoly in any line ofcommerce. IS USCA 12-27. [Cases: Antitrust and Trade Regula tion (;:::::>524, 614.) Cl. Ct. abbr. Court of Claims. See UNITED STATES COURT OF FEDERAL CLAIMS. CLE. abbr. CONTINUING LEGAL EDUCATION. clean hill. See BILL (3). clean bill oflading. See BILL OF LADING. clean draft. See DRAFT. clean-hands doctrine. (1914) The principle that a party cannot seek equitable relief or assert an equitable defense if that party has violated an equitable prin ciple, such as good faith . Such a party is described as having "unclean hands." For example, section 8 of the Uniform Child Custody Jurisdiction Act contains an unclean-hands provision that forbids a court from exercisingjurisdktion in a child-custody suit in certain situations, as when one party has wrongfully removed a child from another state, has improperly retained custody of a child after visitation, or has wrongfully removed a child from the person with custody. The clean-hands doctrine evolved from the discretionary nature of eqUitable relief in English courts of equity, such as Chancery. -Also termed unclean-hands doctrine. [Cases: Equity (;:::::>65.] dean house, vb. Slang. 1. To discharge a considerable number ofemployees, usu. in management, so that new employees may be brought in. 2. To sell securities not meeting an investor's requirements. clean letter ofcredit. See LETTER OF CREDIT. clean-slate rule. Criminal procedure. The doctrine that the double-jeopardy prohibition does not apply to the retrial of a defendant who appealed and obtained a reversal of an earlier conviction. [Cases: Double Jeopardy (;:::::> 107.1.] 287 cleanup clause. In a loan agreement, a clause that calls for the loan to be repaid in full within a given period, after which no further loans will be afforded to the debtor for a specified "cleanup" period. cleanup doctrine. The jurisdictional principle that once an equity court has acquired jurisdiction over a case, it may decide both equitable and legal issues as long as the legal issues are ancillary to the equitable ones. [Cases: EquityC'J39.j clear, adj. 1. Free from encumbrances or claims. 2. Free from doubt; sure. 3. Unambiguous. clear, vb. (IS.c) 1. To acquit or exonerate <she was cleared of all wrongdoing>. 2. (Of a drawee bank) to pay (a check or draft) out offunds held on behalf of the maker <the bank cleared the employee's check>. 3. (Of a check or draft) to be paid by the drawee bank out of funds held on behalf of the maker <the check cleared yester day>. 4. Maritime law. To settle (customs, harbor dues, etc.) and obtain official permission to leave the port. clearance. 1. Maritime law. The right of a ship to leave port, or the certificate issued by the port collector evi dencing the ship's right to leave port. [Cases: Shipping 15.] 2. The time that must elapse between runs of the same movie within a particular area; a theater's exclusive right ofexhibition over competing theaters. clearance card. A letter given by an employer to a depart ing employee, stating the duration and nature of the employment and the reasons for leaving. The clear ance card is not necessarily a recommendation. clear and convincing evidence. See EVIDENCE. clear and convincing proof. See clear and convincing evidence under EVIDENCE. clear-and-present-danger test. (1939) Constitutional law. 'The doctrine allowing the government to restrict the First Amendment freedoms of speech and press if necessary to prevent immediate and severe danger to interests that the government may lawfully protect. This test was formulated by Justice Oliver Wendell Holmes in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247 (1919). -Also termed clear-and-present-danger doctrine. [Cases: Constitutional Law (;:::'; 1529.) "The 'clear and present danger' doctrine is concerned with distinguishing protected advocacy from unprotected incitement of Violent or illegal conduct .... The conven tional wisdom of the day was that speech was punishable as an attempt if the natural and reasonable tendency of what was said would be to bring about a forbidden effect. In addition, the criminal defendant must have used the words with an intent to bring about that effect, although such specific intent could be inferred from the tendency of the words on the presumption that one intends the consequences of one's speech. The formula announced by Justice Holmes easily fits within this framework. The question in every case is whether the words used are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,''' laurence H. Tribe, American Constitutional Law 608 (1978) (quoting Schenck v. United States, 249 U.S. 47, 52. 39 S.Ct. 247,249 (1919). clear-reflection-of-income standard dear and unmistakable error. See clear error under ERROR (2). clear annual value. See VALUE (2). dear chance. See LAST-CLEAR-CHANCE DOCTRINE. clear day. See DAY. clear error. See ERROR (2). Clearfield Trust doctrine. (1957) The doctrine describ ing the federal courts' power to make federal common law when there is both federal lawmaking power to do so and a strong federal interest in a nationally uniform rule. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573 (1943). Cf. ERIE DOCTRINE. [Cases: Federal Courts (;:::,;374.] clearing. 1. Banking. The exchanging ofchecks and bal ancing ofaccounts. 2. Maritime law. The departure of a ship from port, after complying with customs, health laws, and other local regulations. See CLEARANCE (1). [Cases: Shipping C~J7, 15.) clearing account. Banking. An account (usu. a temporary one) containing amounts to be transferred to another account before the end ofan accounting period. clearing agency. See clearing agent under AGENT (2). clearing agent. See AGENT (2). clearing agreement. A contract designed to facilitate the collective settlement of monetary claims between cred itors and debtors in different currency areas, without resort to foreign-exchange reserves. clearing corporation. See CORPORATION. clearinghouse. (ISc) 1. A place where banks exchange checks and drafts and settle their daily balances; an

house. (ISc) 1. A place where banks exchange checks and drafts and settle their daily balances; an association of banks or other payors regularly clearing items. See UCC 4-104(a)(4). [Cases: Banks and Banking(::=3IS-323.]2. A stock-and-commodity exchange where the daily transactions of the brokers are cleared. 3. Any place for the exchange ofspecialized information. -Also written clearing house . clearing loan. See LOAN. clearings. Banking. Checks or other items drawn on a local bank and presented for payment through a clear inghouse or directly to the drawee bank. See CLEAR INGHOUSE (1). [Cases: Banks and Banking 137,168, 320.] clearly-erroneous standard. (1950) The standard of review that an appellate court usu. applies in judging a trial court's treatment offactual issues . Under this standard, a judgment will be upheld unless the appel late court is left with the firm conviction that an error has been committed. [Cases: Appeal and Error 1008.1(5), 1009(1); Criminal Law (;::::> 1158.1.) clear market value. See fair market value under VALUE (2). clear-reflection-of-income standard. (1972) Tax. An income-accounting method that the IRS can force on a taxpayer if the method used does not clearly reflect income. IRC (26 USC A) 446(b). [Cases: Internal Revenue e:-~3095, 3103.J clear residue. The income deriving from funds used to pay a decedent's debts, administration expenses, and general legacies. Also termed true residue. clear title. See TITLE (2). clear-to-use search. See INFRINGEMENT SEARCH. clear value. See VALUE (2). clear-view doctrine. See PLAIN-VIEW DOCTRINE. clemency (klem-an-see), n. (15c) Mercy or leniency; esp., the power of the President or a governor to pardon a criminal or commute a criminal sentence. -Also termed executive clemency. See PARDON; COMMUTA TION. [Cases: Pardon and Parole (;::::>21.J -clement (klem-cmt), adj. Clementines (klem-an-tinz or -trnz or -teenz). Eccles. law. A collection of decretals of Pope Clement V, pub lished in 1317 by his successor, Pope John XXII, and forming the fourth ofthe six parts of the Corpus Juris Canonici, completed in 1502. Also termed Clemen tine Constitutions. clergy, benefit of. See BENEFIT OF CLERGY. clergyable, adj. Archaic. 1. (Ofan offense) not triable if benefit ofclergy is claimed. 2. (Ofa person) eligible to claim benefit ofclergy. clergyman-penitent privilege. See priest-penitent privi lege under PRIVILEGE (3). clergy privilege. See BENEFIT OF CLERGY (1). clericale privilegium (kler-3-kay-Iee priv-3-1ee jee-am). [Law Latin "clerical privilege"J See BENEFIT OF CLERGY. clerical error. See ERROR (2). clerical misprision. See MISPRISION. clerid de cancellaria (kler-3-s1 dee kan-sa-Iair-ee-a). [Law Latin "clerks ofthe chancery"] Cursitors. Also termed clerici de cursu. See CURSITOR. clerici praenotarii (kler-d-sI pree-nd-tair-ee-I). [Law Latin "prenotary clerks"] See SIX CLERKS. derico capto per statu tum mercatorium. See DE CLERICO CAPTO PER STATUTUM MERCATORIUM DELIBERANDO. clerico convicto commisso gaolae in defectu ordinarii deliberando (kler-3-koh kan-vik-toh kd-mis-oh jay [d]-lee in di-fek-t[y]oo di-lib-d-ran-doh). [Law Latin "for delivering a cleric convicted and committed to gaol in defect of his ordinary"] Hist. A writ ordering the delivery ofa clerk to the ordinary (Le., a superior) after the clerk was convicted ofa felonv, and without the ordinary's questioning the clerk's right to claim benefit of clergy. -Also termed de clerico convicto commisso gaolae in defectu ordinarii deliberando. See ORDINARY (1); BENEFIT OF CLERGY (1). derico infra sacros ordines constituto, non eligendo in officium. See DE CLERICO INFRA SACROS ORDINES CON STITUTO, NON ELIGENDO IN OFFICIUM. dericus (kler-d-kds). [Law Latin "clergyman"] Hist. 1. Eccles. law. A person in holy orders; a priest or deacon. 2. A court clerk or officer of the royal household. 3. AMANUENSIS. clericus mercati (kler-3-kas mdr-kay-tI). [Law LatinJ See CLERK OF THE MARKET. clerk, n. (bef. 12c) 1. A public official whose duties include keeping records or accounts. dty clerk. A public official who records a city's official proceedings and vital statistics. [Cases: Municipal Corporations (;::::> 170.] town clerk. An officer who keeps the records, issues calls for town meetings, and performs the duties ofa secretary to the town's political organization. [Cases: Towns C.::~'30.1 2. A court officer responsible for filing papers, issuing process, and keeping records of court proceedings as generally specified by rule or statute. -Also termed clerk ofcourt. [Cases: Clerks ofCourts district derk. The clerk ofa district court within a state or federal system. See district court under COURT. [Cases: Clerks ofCourts (;::::> 1.] 3. An employee who performs general office work. 4. A law student or recent law-school graduate who helps a lawyer or judge with legal research, writing, and other tasks. -Also termed law clerk; extern; or (depending on the time ofyear) summer clerk; summer associate. See INTERN. [Cases: Courts (>55.] 5. A lawyer who assists a judge with research, writing, and case man agement. -Also termed briefing attorney; research attorney; staffattorney. [Cases: Courts (;::::>55.] "[Mlodern American judging in all courts of national sig nificance -the federal courts and the more prominent state appellate courts -staggers along despite the burden of bloated caseloads and the shortcomings of distinctly human judges only by the delegation of a great deal of the labor ofjudging to law clerks: subordinate, anonymous, but often quite powerful lawyers who function as the non commissioned officers in the army of the jUdiciary." John Bilyeu Oakley & Robert S. Thompson, Law Clerks Clnd the Judicial Process 2 (l980). elbow clerk. An individual judge's personal clerk; esp., one who works closely with the judge. The name derives from the metaphoric expectation that the clerk is always at the judge's elbow. pool clerk. A clerk who does not work for only one judge but performs a range ofduties for several judges or for the entire court. 6. Hist. A cleric. "Eventually the rule was established that 'clerks' of all kinds, who committed any of the serious crimes termed felonies, could be tried only in an ecclesiastical court, and therefore were only amenable to such punishments as that court could inflict. Any clerk accused of such crime was accordingly passed over to the bishop's court. He was there tried before ajury of clerks by the oaths of twelve compurgators; a mode of trial which usually ensured him an acquittal." J,W. Cecil Turner. Kenny's Outlines ofCriminal Law 75 (16th ed. 1952). 7. SECRETARY (3). reading clerk. A legislative officer charged with reading bills to the body. derk, vb. To work as a clerk <she clerked for a Chicago law firm last summer>. derk of arraigns (J-raynz). Hist. A deputy of the clerk of assize responsible for arraigning defendants and putting the formal questions to the jurors as they deliver their verdict. The office was abolished in England in 1946. derk of assize (J-SIZ). Hist. An assize associate respon sible for record-keeping and other clerical and admin istrative fllnctions. See ASSOCIATE (3). derk of court. See CLERK (2). derk ofenrollments. Hist. The former chief of the Enroll ment Office, which the British Parliament abolished in 1879, reassigning its duties to the Central Office. See ENROLLMENT OFFICE; CENTRAL OFFICE. clerk ofindictment. Hist. An officer of England's Central Criminal Court, responsible for preparing indictments and assisting the Clerk of Arraigns. The office was abolished in 1946, when its duties were moved to the Central Office. See CENTRAL OFFICE. Clerk of Nichils. See NICHIL. clerk ofrecords and writs. Hist. An officer ofthe English Court of Chancery responsible for filing documents and sealing bills of complaint and writs of execution. The office was abolished in 1879, when its duties were moved to the Central Office. See CENTRAL OFFICE. derk of the corporation. See SECRETARY (2). Clerk of the Crown in Chancery. The head of the per manent staff of the Crown Office in Chancery (of the Central Office), responsible for reading the title ofBills in the House of Lords, sending out writs of summons to peers, and issuing election writs. . Clerk of the House of Commons. An officer of the House ofCommons who keeps the House journal, signs orders, indorses bills sent to the House of Lords, and has custody ofall records . The Clerk is appointed for life by the Crown. derk ofthe market. Hist. 'The overseer of a public market, responsible for witnessing oral contracts, inquiring into weights and measures, measuring land, and settling disputes between people dealing there . The office has become obsolete as a result ofvarious statutes regulat ing weights and measures. Clerk of the Parliaments. The principal permanent official of the House of Lords, responsible for the House's minutes and documents, and for advising the members on procedure. Clerk of the Peace. Hist. An officer of the Quarter Sessions responsible for maintaining the courts' records, preparing indictments, entering judgments, issuing process, and other clerical and administra tive functions . The office was abolished in England in 1971, when the Quarter Sessions' jurisdiction was transferred to the Crown Courts. See quarter session under SESSION (1). Clerk of the Pells. Hist. An Exchequer officer who entered tellers' bills on the parchment rolls (pells), one for receipts and the other for disbursements. -Also termed Master of the Pells. Clerk of the Pipe. Hist. An Exchequer officer respon sible for the Pipe Rolls . The office was abolished in 1833. -Also termed Engrosser of the Great Roll. See PIPE ROLLS. Clerk of the Privy Seal (priv-ee sed). Hist. An officer responsible for preparing documents for the Lord Privy SeaL _ The use of the Privy Seal was abolished in 1884. See PRIVY SEAL. Clerk of the Signet (sig-nit). Hist. An officer who kept the privy signet and attended the sovereign's principal secretary. The signet was used to seal royal letters and other documents not requiring the Great Seal of the Realm. The office was abolished in England in 1851. See great seal (3) under SEAL; PRIVY SIGNET. clerkship. (1836) 1. An internship in which a law student or recent law-school graduate assists a lawyer or judge with legal writing, research, and other tasks . In many common-law jurisdictions, recent law-school graduates are required to complete clerkships as a condition of admission to the bar. [Cases: Courts 2. Hist. A law student's employment as an attorney's apprentice before gaining admission to the bar. Until shortly before World War II, a person could be admitted to the bar in many states without attending law school merely by passing the bar exam. derk's record. See RECORD (4). dick fraud. See FRAUD. dick-wrap agreement. See POINT-AND-CLICK AGREE MENT. dick-wrap license. See POINT-AND-CLICK AGREEMENT . cliens (kh-enz), n. [Latin "client") Roman law. A depen dent; a person who depended on another for defense in suits at law and other difficulties . A c/iens was often a freed slave or immigrant. PI. clientes (kh-en-teez). dient, n. (14c) A person or entity that employs a profes sional for advice or help in that professional's line of work. cliental, adj. client control. The influence that a lawyer has over his or her client, esp. in relation to positions taken, deci sions made, and general conduct with other parties and their attorneys . Lawyers whose clients behave irrationally, as by acting vindictively or refusing even generous settlement offers, are said to have little or no client control. clientela (kh-,m-tee-lJ), n. [Latin] Roman law. 1. Client ship; the

clientela (kh-,m-tee-lJ), n. [Latin] Roman law. 1. Client ship; the relationship between a cliens and a patron. 2. A person's dependents. client-security fund. See FUND (1). client's privilege. See attorney-client privilege under PRIVILEGE (3). client state. See STATE. client trust account. A bank account, usu. interest -bear ing, in which a lawyer deposits money belonging to a client (e.g., money received from a client's debtor, from the settlement of a client's case, or from the client for later use in a business transaction). -Also termed trust account. [Cases: Attorney and Client 120.] Clifford trust. See TRUST. clinch, vb. Parliamentary law. To preclude further action on (an adopted motion or series of motions) by moving at once for reconsideration and then defeat ing that motion . The clincher motion in a legislative body usu. takes the form of a motion to "reconsider and lay on the table [the motion to reconsider]." Since the motion has just been debated and passed, there are almost always enough votes to defeat a motion to reconsider. clincher, n. clinical diagnosis. See DIAGNOSIS. clinical legal studies. (1972) Law-school training in which students participate in actual cases under the supervision of a practicing attorney or law professor. This training was first introduced in the late 19608 under the leadership of Gary Bellow and others. It provided law students with a substitute for traditional apprenticeship programs. Often shortened to clinical studies. Cf. CLERKSHIP (1). clinical pneumoconiosis. See PNEUMOCONIOSIS. clog on the equity of redemption. An agreement or condition that prevents a defaulting mortgagor from getting back the property free from encumbrance upon paying the debt or performing the obligation for which the security was given. See EQUITY OF REDEMPTION. [Cases: Mortgages (;::>591(3).J close, n. (14c) 1. An enclosed portion of land. 2. The interest of a person in a particular piece of land, enclosed or not. 3. The final price of a stock at the end of the exchange's trading day. dose, vb. (13c) 1. To conclude; to bring to an end <the case was closed>. 2. To conclude discussion or negotia tion about <close on a house>. See CLOSING. close-connectedness doctrine. A doctrine used by some courts to deny an assignee of a negotiable note holder-in-due-course status if the assignee is too closely connected to the original holder-mortgagee. Also termed close-connection doctrine. [Cases: Bills and Notes close corporation. See CORPORATION. dosed, adj. (Be) L (Of a class or organization) confined to a limited number <a closed mass-tort class> <nonunion workers were excluded from the closed shop>. 2. (Of a proceeding or gathering) conducted in secrecy <a closed hearing> <a closed shareholders' meeting>. dosed account. See ACCOUNT. dosed adoption. See ADOPTIO!'<. closed brief. See BRIEF. closed corporation. See close corporation under COR PORATION. closed court. 1. Hist. The English Court of Common Pleas, open only to serjeants-at-law . The monopoly of the serjeants-at-law was abolished in 1845. 2. See closed session (2) under SESSION (1). 3. See closed session (3) under SESSION (1). close debate. Parliamentary law. To pass a motion that ends debate and amendment of a pending question or series of questions . The synonymous shorthand "previous question," a somewhat archaic and mislead ing term that several parliamentary manuals still use for this motion, has evolved over time. Two centuries ago, the motion was invented for suppressing an unde sirable debate: if the original form "Shall the main question be put?" passed in the negative, then the body immediately stopped considering the pending question. The motion's form later became "that the main question shall now be put," which if passed in the affirmative brought the pending question to an immediate vote, and if passed in the negative had no effect. -Also termed vote immediately. See CLOTURE. Cf. EXTEND DEBATE; LIMIT DEBATE . dosed-ended claim. See PATENT CLAIM. closed-end fund. See MUTUAL FUND. closed-end mortgage. See MORTGAGE. dosed-end mortgage bond. See BOND (3). dosed insurance contract. See closed policy under INSURANCE POLlCY. closed memorandum. See MEMORANDUM. dosed mortgage. See closed-end mortgage under MORTGAGE. closed nonunion shop. See SHOP. closed policy. See INSURANCE POLICY. closed session. See SESSION (1). closed shop. See SHOP. dosed-shop contract. A labor agreement requiring an employer to hire and retain only union members and to discharge nonunion members. See closed shop under SHOP. [Cases: Labor and Employment ~--::> 1264.J dosed source, adj. Of or related to software that does not include the source code and cannot be modified without either damaging the program or violating the software developer's ownership rights . Proprietary software is usu. dosed source. dosed testament. See mystic will under WILL. closed transaction. See TRANSACTION. closed trial. See TRIAL. closed union. See UNION. , dosed union shop. See closed shop under SHOP. dosed-universe memo. See closed memorandum under ME.\lORANDUM. dosed will. See mystic will under WILL. close-jail execution. See EXECUTION. 291 closely held corporation. See close corporation under CORPORATION. close-nexus test. See NEXUS TEST. close nominations. Parliamentary law. To end nomina tions from the floor by passage of a motion. close rolls. See CLAUSE ROLLS. close writ. See WRIT. closing. The final meeting between the parties to a trans action, at which the transaction is consummated; esp., in real estate, the final transaction between the buyer and seller, whereby the conveyancing documents are concluded and the money and property transferred. Also termed settlement. Cf. settlement date (3) under DATE. closing agent. See settlement agent under AGENT (2). dosing agreement. See AGREEMENT. closing argument. (1828) In a trial, a lawyer's final state ment to the judge or jury before deliberation begins, in which the lawyer requests the judge or jury to consider the evidence and to apply the law in his or her client's favor. _ After the closing arguments in a jury trial, the judge ordinarily instructs the jury on the law that governs the case. -Also termed closing statement;final argument; jury summation; summing up; summation; closing argument; (in English law) final submission; (in English law) final speech. [Cases: Criminal Law 2068; Federal Civil Procedure 1973; Trial lll.] closing costs. Real estate. The expenses that must be paid, usu. in a lump sum at closing, apart from the purchase price and interest. -These may include taxes, title insurance, and attorney's fees. closing ofestate. (1843) Wills & estates. The comple tion of the administration of a decedent's estate, brought about by the administrator's distribution of estate assets, payment oftaxes, and filing of necessary accounts with the probate court. closing price. See PRICE. closing statement. (1875) 1. CLOSING ARGUMENT. 2. A written breakdown ofthe costs involved in a particular real-estate transaction, usu. prepared by a lender or an escrow agent. Also termed settlement sheet; settle ment statement. Cf. BROKER'S LOAN STATEMENT. closure. See CLOTURE. cloture (kloh-char), n. (1871) The procedure of ending debate in a legislative body and calling for an immedi ate vote. Also spelled closure. [Cases: United States (;=\18.] -cloture, vb. cloud on title. A defect or potential defect in the owner's title to a piece of land arising from some claim or encumbrance, such as a lien, an easement, or a court order. See action to quiet title under ACTIO::>! (4). [Cases: Quieting Title (;='7.] CLS. abbr. CRITICAL LEGAL STlJDIES. CLSer. See CRIT. Coase Theorem CLU. See chartered life underwriter under UNDER WRITER. Club Fed. Slang. A low-security federal prison, usu. for white-collar criminals, that has a comparatively informal, relaxed atmosphere and, reputedly, luxury facilities. -Some sources claim that "Club Fed" prisons offer weight-lifting equipment, tennis courts, cable tele vision, computers, musical instruments, and even min iature golf. dub-law. Government by dubs (big sticks) or violence; the use of illegal force in place oflaw. duster zoning. See ZONING. CMO. abbr. 1. CASE-MANAGEMENT ORDER. 2. COLLAT ERALIZED MORTGAGE OBLIGATION. CMR. abbr. 1. Court of Military Review. See COlJRT OF CRIMINAL APPEALS (1). 2. COURT-MARTIAL REPORTS. CN. abbr. Code Napoleon. See NAPOLEONIC CODE (1). co-. prefix. Jointly or together with <coowner> <code fendant>. co. abbr. (usu. cap.) 1. COMPANY. 2. COUNTY. c/o. abbr. Care of. COA. abbr. 1. CONTRACT OF AFFREIGHTMENT. 2. CER TIFICATE OF APPEALABILITY. 3. CAUSE OF ACTION. coadjutor (koh-d-joo-tar or koh-aj-a-tdr), n. (15c) A coworker or assistant, esp. one appointed to assist a bishop who, because of age or infirmity. is unable to perform all duties of the office. -coadjutor, adj. co-administrator. Wills & estates. A person appointed to jointly administer an estate with one or more other administrators. co-adventurer. See COVENTURER. co-agent. See AGENT (2). coal note. See NOTE (1). coal notice. In Pennsylvania, a notice that must be included in deeds and other instruments relating to the sale of surface property (excepting mortgages or quitclaim deeds) detailing any severance ofthe owner ship of coal under the land. Coase Theorem (kohs). (1968) A proposition in econom ics describing the relationship between legal rules and economic efficiency. -The theorem, innovated by Ronald Coase, holds that if there are no transaction costs -such as the costs of bargaining or acquiring information then any legal rule will produce an effi cient result. Coase's seminal article was The Problem of Social Cost, 3 J. Law & Econ. 1 (1960). "Nothing is more central to the study of law and econom ics nor more responsible for its growth than the Coase Theorem. What the Coase Theorem says, in effect, is that in many instances, the assignment of rights by courts or legal authorities may have little to do with who eventually possesses those rights. In the words of Mark Kelman, 'the market, like an untameable river, will knock out attempts to alter its mighty course.'" Jeffrey L. Harrison, Law and Economies in a Nutshell 56 (1995). co-assignee. A person who, along with one or more others, is an assignee ofthe same subject matter. [Cases: Assignments (;:::;0 32.] coastal-state control. Maritime law. The exercise of authority under international conventions for a state to stop, board, inspect, and when necessary detain vessels that are under foreign flags while they are navigating in the coastal state's territorial waters . The purpose is to ensure the safety ofthe vessels and to enforce environ mental regulations. Cf. FLAG STATE-CONTROL; PORT STATE CONTROL. [Cases: Shipping Cr~8.1 Coast Guard jurisdiction. The law-enforcement author ity ofthe United States Coast Guard over the high seas and navigable waters over which the United States has jurisdiction, including the powers of stopping, search ing, and seizing property, and arresting persons. See UNITED STATES COAST GUARD. [Cases: Shipping 8.] coasting license. Maritime law. A federal permit to operate a commercial vessel in coastal waters . The Coasting Act of 1793, which originally created the licensing requirement, was intended to exclude foreign vessels from interstate trade and encourage the growth of American shipping. [Cases: Shipping (~6.1 coasting trade. Maritime law. Commerce among dif ferent coastal ports or navigable rivers of the United States, in contrast to commerce carried on between nations. Also termed coastwise trade. [Cases: Shipping coast water. See WATER. coastwise trade. See COASTING TRADE. COB clause. Insurance. A coordination-of-benefits clause, which provides that the total sums paid for medical and hospital care will not exceed the benefits receivable from all combined sources of insurance. [Cases: Insurance (:::::'2525(1).] COBRA (koh-br;:. abbr. CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT OF 1985. cockfighting. A traditional bloodsport in which specially bred and trained gamecocks are equipped with metal spurs and made to fight in a pen until at least one bird is killed or injured too seriously to continue fighting . In the United States, cockfighting was once common in rural areas. Now considered a form of animal crueltv, it has been outlawed in every state

ing was once common in rural areas. Now considered a form of animal crueltv, it has been outlawed in every state. [Cases: Animals C::3.5(7).] coconspirator. (1837) A person who engages in a criminal conspiracy with another; a fellow conspira tor. Also spelled co-conspirator. See CONSPIRATOR. [Cases: Conspiracy Cr'-::> 1.1,23.1,39.] unindicted coconspirator. (1936) A person who has been identified by law enforcement as a member ofa conspiracy, but who has not been named in the fellow conspirator's indictment . Prosecutors typically name someone an unindicted coconspirator because any statement that the unindicted coconspirator has made in the course and furtherance of the conspiracy is admissible against the indicted defendants. Also termed unindicted conspirator. [Cases: Criminal Law (:::::';422-428.] coconspirator's exception. (1954) An exception to the hearsay rule whereby one conspirator's acts and state ments, if made during and in furtherance of the con spiracy, are admissible against a codefendant even if the statements are made in the codefendant's absence. See Fed. R. Evid. 801(d)(2)(E). Also termed cocon spirator's rule. See HEARSAY. [Cases: Criminal 422-428; Evidence C.O.D. abbr. (1859) 1. Cash on delivery; collect on delivery . By consenting to this delivery term, the buyer agrees to pay Simultaneously with delivery and appoints the carrier as the buyer's agent to receive and transmit the payment to the seller. With C.O.D. con tracts, the practice of carriers has traditionally been to disallow inspection before payment. [Cases: Sales (;:::;o.S2(3).] 2. Costs on delivery. 3. Cash on demand. Sometimes written c.o.d. . CODA. abbr. CASH OR DEFERRED ARRANGEMENT. code. (ISc) 1. A complete system of positive law, care fully arranged and officially promulgated; a system atic collection or revision oflaws, rules, or regulations <the Uniform Commercial Code> . Strictly, a code is a compilation not just of existing statutes, but also of much of the unwritten law on a subject, which is newly enacted as a complete system oflaw. -Also termed consolidated laws. See CODIFICATION "A code is not only a collection of the existing statutory law, but also of much of the unwritten law on any subject. and is composed partly of such materials as might be at hand from all sources -from statutes, cases, and from customs -supplemented by such amendments, altera tions, and additions as are deemed by the codifiers neces sary to harmonize and perfect the existing system. In fact, in making a code, new laws may be added and old laws repealed in order to constitute a complete system." William M. Lile et aI., Brief Making and the Use ofLaw Books 18-19 (3d ed. 1914) 2. (usu. cap.) The collection oflaws and constitutions made by order of the Roman Emperor Justinian and first authoritatively published in A.D. 529 (with a second edition in 534). Contained in 12 books, the Code is one of four works that make up what is now called the Corpus Juris Civilis. -Also termed (in sense 2) Legal Code. See CODEX; CORPUS JURIS CIVILIS. Code Adam. A procedure used by offices, stores, and other places to alert people to look for a child who has become separated from a parent or guardian and has been reported as missing somewhere within the building . Typically, a description of the missing child is broadcast over a paging system. All exits are locked or closely monitored. If the child is not found within a short time, the police are called. Many stores, museums, malls, and amusements parks have adopted some form of Code Adam. In 2003, Congress passed legislation requiring Code Adam programs in all federal office buildings. This term is a memorial to 6-year-old Adam 293 Codex Hermogenianus Walsh of Florida, who in 1981 was abducted from a I The American Bar Association drafted a Model Code department store and murdered. Cf. AMBER ALERT. Code Civil. The code embodying the civil law ofFrance, dating from 1804 . It was first known as the Code civil desfranr,:ais to distinguish it from the other four codes promoted by Napoleon. From 1807 to 1816 it was called Code Napoleon, a title that was restored by a decree of Louis Napoleon. Since 1870, French statutes have con sistently referred simply to the code civil. Cf. NAPOLE ONIC CODE. See CIVIL CODE (1). coded communications. Messages that are encoded or enciphered by some method oftransposition or substi tution so that they become unintelligible to anyone who does not have the key to the code or cipher. Code de commerce (kohd da kaw-mairs). A codifica tion of French commercial law, enacted in 1807, dealing with commercial transactions, bankruptcy, and the jurisdiction and procedure ofthe courts handling these subjects. This code supplemented the Code Napoleon. See NAPOLEONIC CODE. Code de procedure civil (kohd da praw-se-door see veel). A French civil-procedure code, enacted in 1806 and appended to the Code Napoleon. See NAPOLEONIC CODE. Code d'instruction criminelle (kohd dan-struuk-see awn kri-mi-nel). A French criminal-procedure code, enacted in I8H and appended to the Code Napoleon. See NAPOLEONIC CODE. codefendant. (17c) One of two or more defendants sued in the same litigation or charged with the same crime. -Also termed joint defendant. Cf. COPLAIN TIFF. Code Napoleon (kohd na-poh-Iay-awn). See NAPOLE ONIC CODE. Code Noir (kohd nwahr). [French "black code"] Hist. A body oflaws issued by Louis XIV and applied in French colonies. The Code regulated slavery and banned Jews and non-Catholic religiOUS practices from the colonies. code ofconduct. (1919) A written set ofrules governing the behavior ofspecified groups, such as lawyers, gov ernment employees, or corporate employees. [Cases: Attorney and Client (>:::032(2); Officers and Public Employees 10.) Code of Federal Regulations. The annual collection of executive-agency regulations published in the daily Federal Register, combined with previously issued reg ulations that are still in effect. -Abbr. CFR. [Cases: Administrative Law and Procedure (;::;:>407.) Code ofHammurabi (hah-ma-rah-bee or ham-<l-). The oldest known written legal code, produced in Meso potamia during the rule of Hammurabi (who reigned from 1792 to 1750 B.C.) The code consisted of nearly 300 provisions, arranged under headings such as family, trade, real property, personal property, and labor. Code of Judicial Conduct. The body of standards gov erning the profeSSional ethics and behavior ofjudges. ofJudicial Conduct and formally adopted it in 1972. In 1973, the U.S. Judicial Conference used the code as the basis for the Code ofConduct for United States Judges. Portions of the code are also found in federal law (see, e.g. 28 USCA 455). The 1972 ABA Code has been superseded by the 1990 ABA Model Code of Judicial Conduct. Each state has a code of judicial conduct, based on the 1972 or 1990 model codes or a blend of both. A state's highest court is responsible for drafting and enacting the code. -Abbr. qc. [Cases: Judges (;::;:> 11(2).) Code of Justinian. See JUSTINIAN CODE. Code of Military Justice. The collection of substan tive and procedural rules governing the discipline of members ofthe armed forces. 10 USCA 801 et seq. Also termed Uniform Code ofMilitary Justice (UCMJ). [Cases: Armed Services (>42.1; Military Justice 502.] Code of Professional Responsibility. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY. code of war. Legal rules that regulate international armed conflict. A code ofwar may arise from many sources, including custom, treaties, scholarly writings, and domestic legislation. One of the earliest known treatises on rules governing the conduct of war was written by Sun Tzu in the 4th century B.C. [Cases: War and National Emergency (;::;:>9.] Code penal (kohd pay-nal). The fourth of five codes promoted by Napoleon, enacted in 1810, setting forth the penal code of France. See NAPOLEONIC CODE. code pleading. See PLEADING (2). code state. Hist. A state that, at a given time, had already procedurally merged law and equity, so that equity was no longer administered as a separate system; a state in which there is only one form ofcivil action . This term was current primarily in the early to mid-20th century. Cf. NONCODE STATE. codex (koh-deks). [Latin) Archaic. 1. A code, esp. the Jus tinian Code. See JUSTINIAN CODE. 2. A book written on paper or parchment; esp., a volume ofan ancient text. Codex Gregorianus (koh-deks gri-gor-ee-ay-nas). [Latin] Roman law. A collection of imperial constitu tions compiled by the Roman jurist Gregorius and pub lished in A.D. 291. Also termed Gregorian Code. "The imperial enactments, rapidly increasing in number, covering, at hazard, the whole range of law, and, by reason of difficulties of communication and imperfect methods of promulgation, not always readily ascertainable, created a burden for the practitioner almost as great as that of the unmanageable juristic literature. Something was done to help him by two collections published privately about the end of the third century, the Codex Cregorianus and Codex Hermogenianus. These collections do not now exist: what is known of them is from citations in later literature .. , ." W.W. Buckland, A Manual of Roman Private Law 20-21 (2d ed. 1939). Codex Hermogenianus (koh-deks h<lr-ma-jee-nee ay-nas). [Latin] Roman law. A collection of imperial 294 Codex Justinianus constitutions compiled by the Roman jurist Hermoge nianus and published A.D. 295. The Codex Hermoge nianus supplemented the Codex Gregorianus. -Also termed Hermogenian Code. Codex Justinianus. See JUSTI:-IIAN CODE. Codex Repetitae Praelectionis (koh-deks rep-;l-tI tee pri-Iek-shee-oh-nis). [Latin "code of the resumed reading"] Roman law. See JUSTINIAN CODE. "By the time when the Digest and Institutes had been com pleted it was obvious that the Codex, published little more than four years earlier, was incomplete, since in the interval Justinian ... had promulgated other new constitutions. Tribonian, therefore, was appointed to revise the Code, so as t'o bring it fully up to date, and at the end of the year A.D. 534 this new Code, known as the Codex Repeti tae Praelectionis, was promulgated, and is the only Code which survives to the present day. Justinian seems to have laboured under the erroneous impression that the system he had framed would be adequate for all time. But as there is nothing static about law, further legislative enactments, termed Novellae Constitutiones, were issued during his reign.... In modern times Justinian's various compilations came to be called collectively the Corpus Juris Civilis: the Corpus being regarded as a single work, made up of the Institutes, the Digest, the Codex Repetitae Praelectionis, and the Novels." R.W. Leage. Roman Private Law 44 (C.H. Ziegler ed . 2d ed. 1930). Codex Theodosianus (koh-deks thee-;l-doh-shee-ay nds). [Latin] See THEODOSIAN CODE. codicil (kod-;l-Sdl or -sill. (ISc) A supplement or addition to a will, not necessarily disposing of the entire estate but modifying, explaining, or otherwise qualifying the will in some way. _ When admitted to probate, the codicil becomes a part of the will. [Cases: Wills 99.] "A Schedule or supplement to a Will, or some other writing; some Writers, conferring a Testament, and a Codicil together, call a Testament a great Will, and a Codicil a little one; and compare a Testament to a Ship, and the Codicil to the Boat tied to the Ship." Thomas Blount, Nomo-Lexicon: A Law-Dictionary (1670). "A codicil, from codicil/us. a small codex, a little book or writing, may be defined as a writing by the testator intended as a supplement or addition to his will, the effect of which may be either to enlarge or restrict it, orto annul or revoke it altogether. It may add to or subtract from provi sions of the will, may explain or alter, confirm or revoke them wholly or in part; or, when the will itself is invalid, may by a valid re-execution and republication revive and renew the will." 1 H.C. Underhill, A Treatise an the Law of

execution and republication revive and renew the will." 1 H.C. Underhill, A Treatise an the Law of Wills 7, at 11 (1900). codicillary (kod-a-sil-a-ree), adj. Of or relating to a codiciL codicillus (kod-d-sil-as), n. [Latin "little document"] Roman law. 1. An informal document instructing an heir to carry out a certain performance, usu. the payment of money or the transfer ofproperty to a third person. -During the reign of Augustus (27 B.C.-A.D. 14), directives (fideicommissa) contained in codicilli became legally binding. See FIDEICOMMISSUM. 2. An imperially granted appointment or special privilege. codification (kod-a-fi-kay-sh;m), n. (1817) 1. The process ofcompiling, arranging, and systematizing the laws of a given jurisdiction, or of a discrete branch of the law, into an ordered code. 2. The code that results from this process. (Cases: Statutes C::.) 144-148, 231.J -codify (kod-a-fI), vb. codifier (kod-a-fI-ar), n. codifying statute. See STATUTE. Coefficient Clause. See NECESSARY AND PROPER CLAUSE. coemptio (koh-emp-shee-oh), n. [Latin] Roman law. A form of civil marriage in which the husband "pur chased" from a woman's father by fictitious sale the right to exercise marital power (manus) over the woman . The father conveyed his daughter to her husband through the technical procedure of a sale of res mancipi. The imaginary sale took place in the presence of five adult Roman citizens and a balance holder (libripens). The husband or fictitious purchaser was termed the coemptionator or coemptioner. Ihe importance ofcoemptio as a method of civil marriage had faded by the end of the Republic period. Cf. CON FARREATIO; usus (3). PI. coemptiones (koh-emp-shee oh-neez). coemption (koh-emp-sh;m), n. (14c) 1. The act of pur chasing the entire quantity of any commodity. 2. COEMPTIO. coemptional, coemptive, adj. coerce (koh-<Jrs), vb_ To compel by force or threat <coerce a confession>. coerced-compliant confession. See CONFESSION. coerced-compliant false confession. See coerced-com pliant confession under CONFESSION. coerced confession. See CONFESSION. coercion (koh-<Jr-zhan), n. (ISc) 1. CompulSion by physical force or threat of physical force . An act that must be voluntary, such as signing a will, is not legally valid if done under coercion. And since a valid marriage reqUires voluntary consent, coercion or duress is grounds for invalidating a marriage. criminal coercion. Coercion intended to restrict anoth er's freedom ofaction by: (1) threatening to commit a criminal act against that person; (2) threatening to accuse that person of having committed a criminal act; (3) threatening to expose a secret that either would subject the victim to hatred, contempt, or ridicule or would impair the victim's credit or goodwill, or (4) taking or withholding official action or causing an official to take or withhold action. [Cases: Extortion and Threats C=> 1,25.1.] implied coercion. See UNDUE INFLUENCE (1). moral coercion. See UNDUE INFLUE:-ICE (1). 2. Conduct that constitutes the improper use of economic power to compel another to submit to the wishes of one who wields it. -Also termed economic coercion. 3. Hist. A husband's actual or supposed control or influence over his wife's actions . Under the com mon-law doctrine ofcoercion, a wife who committed a crime in her husband's presence was presumed to have been coerced by him and thus had a complete defense. Courts have abolished this doctrine. Also termed doctrine ofcoercion. -coercive, adj. coercer, n. 295 "Although as an abstract statement any action or restraint imposed upon one by another may be spoken of as coercion, there has been a tendency in the criminal law to employ the word 'compulsion' for the general field and to reserve the word 'coercion' to indicate the exercise of such influence (actual or presumed) over a married woman by her husband. And since the latter is not merely a specific instance of the former, but is something which differs from it in kind so far as common-law consequences are concerned, there are important reasons for retaining this difference in the meaning to be assigned to these terms." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 1018 (3d ed. 1982). coercive relief. See RELIEF. coexecutodkoh-eg-zek-p-t;}r). See joint executor under EXECUTOR. coexistence. Int'llaw. The peaceful continuation of nations, peoples, or other entities or groups within an effective political-military equilibrium. coexisting motion. See MOTION (2). cogent (koh-j;}nt), adj. (l7c) Compelling or convincing <cogent reasoning>. -cogency, n. cognate, See COGNATIC. cognate, n. (ISc) One who is kin to another. -In Roman law, the term means a blood relationship and implies that the kinship derives from a lawful marriage. In Scots and later civil law, the term implies kinship from the mother's side. Cf. AGNATE. cognate nuisance. See NUISANCE. cognate offense. See OFFENSE (1). cognati. See COGNATUS. cognatic (kog-nat-ik), adj. (18c) (Of a relationship) existing between cognates. -Also termed cognate. cognatio (kog-nay-shee-oh), n. [Latin] Roman law. The relationship between people having a common ancestor; a blood relationship; cognates. Cf. AGNATIO. cognation (kog-nay-sh.m), n. (14c) 1. Relationship by blood rather than by marriage; relationship arising through common descent from the same man and woman, whether the descent is traced through males or females. '''Cognation' is ... a relative term, and the degree of con nexion in blood which it indicates depends on the par ticular marriage which is selected as the commencement of the calculation." Henry S. Maine, Ancient Law 122 (17th ed. 1901). 2. Civil law. A relationship existing between two people by blood, by family, or by both. civil cognation. A relationship arising by law, such as that created by adoption. mixed cognation. A relationship that combines the ties of blood and family, such as that existing between brothers who are born of the same marriage. natural cognation. A blood relationship, usu. arising from an illicit connection. 3. Relationship between persons or things ofthe same or similar nature; likeness. cognizable cognatus (kog-nay-t;}s), n. & adj. [Latin] Roman law. A cognatic relative; a person related to another by a common ancestor. Also termed cognate. Cf. AGNATUS. Pl. cognati. cognitio (kog-nish-ee-oh), n. [fro Latin cognoscere "to know"] 1. Hist. The acknowledgment of a fine, or the certificate of such an acknowledgment. 2. Roman law. See COGNITIO EXTRAORDINARIA. PI. cognitiones (kog nish-ee-oh-neez). cognitio extraordinaria (kog-nish-ee-oh ek-stror-di nair-ee-;} or ek-str;}-or-). [Latin] Roman law. A type of legal proceeding, ariSing at the beginning of the Empire, in which a government official controlled the conduct of a trial from beginning to end, as opposed to the earlier formulary system in which a magistrate shaped the issues and then turned the issues of fact and law over to a lay judge (a judex). -Sometimes short ened to cognitio. Also termed cogl1itio extra ordinem (kog-nish-ee-oh ek-str;) or-d;}-n;}m). 'The cognitio extra ordinem or cognitio extraordinaria is a collective name for all those legal procedures in which the trial consists of one stage only and in which judgment is given by the emperor or by an imperial official acting on behalf of the emperor. The disputes that were settled by means of the cognition procedure could be of very dif ferent kinds: not only could they be about matters con cerning private law and criminal law, but they could also be disputes between citizens and government officials." Olga TeliegenCouperus, A Short History of Roman Law 90 (1993). cognitionibus mittendis (kog-nish-ee-oh-n;)-b;)s mi ten-dis). [Latin "cognizance of pleas to be released"] Hist. A writ ordering a justice ofthe Common Pleas to certify a fine that the justice had imposed but refused to certify. cognition is causa tantum (kog-nish-ee-oh-nis kaw-z;) tan-tam). [Latin "for the purpose ofascertaining a debt against the estate"] Scots law. A creditor's action against a deceased debtor's estate to ascertain the amount of the debt. cognitive test. (1955) Criminal law. A test of the defen dant's ability to know certain things, specifically the nature of his or her conduct and whether the conduct was right or wrong. _ This test is used in assessing whether a defendant may rely on an insanity defense. [Cases: Criminal Law GA8.] cognitor (kog-ni-tor), n. Roman law. A person formally appointed to represent another in a civil trial. Cf. PROC URATOR (1). cognizable (kog-ni- or kog-nI-z;}-b;}l), adj. (l7c) 1. Capable of being known or recognized <for purposes of establishing standing, a plaintiff must allege a judicially cognizable injury>. 2. Capable of being identified as a group because of a common characteristic or interest that cannot be represented by others <American Indians qualify as a cognizable group for jury-selec tion purposes>. 3. Capable of being judicially tried or examined before a designated tribunal; within the court's jurisdiction <the tort claims are not cognizable under the consumer-protection statute>. 296 cognizance cognizance (kog-ni-zans), n. (14c) 1. A court's right and power to try and to determine cases; JURISDIC TION. [Cases: Courts <):::;;2.] 2. The taking ofjudicial or authoritative notice. [Cases: Criminal Law <):::;;304; Evidence G:: 1.] 3. Acknowledgment or admission ofan alleged fact; esp. (hist.), acknowledgment of a fine. See FINE (1); FINE SUR COGNIZANCE DE DROIT. 4. Common law pleading. In a replevin action, a plea by the defen dant that the goods are held in bailment for another. Cf. AVOWRY. [Cases: Replevin cognizee (kog-ni-zee). (16c) Hist. The grantee ofland in a conveyance by fine. -Also termed conusee; conuzee. See FINE.(l). cognizor (kog-ni-zar aT -zor). (16c) Hist. The grantor of land in a conveyance by fine. Also termed conusor; conUZOT. See FINE (1). "Next comes the concord, or agreement itself, after leave obtained from the court; which is usually an acknowledg ment ... that the lands in question are the right of the com plainant. And from this acknowledgment, or recognition of right, the party levying the fine is called the cognizoy, and he to whom it is levied the cognizee." 2 William Blackstone. Commentaries on the Laws ofEngland 350-51 (1766). cognovit (kog-noh-vit). (18c) [Latin "he has conceded (a debt or an action)"] An acknowled nt ofdebt or liability in the form of a confes judgment. Formerly, credit contracts often included a cognovit clause in which the consumer relinquished, in advance. any right to be notified of court hearings in any suit for nonpayment -but such clauses are now generally illegal. See CONFESSION OF JUDGMENT. Cf. WARRANT OF ATTORNEY. [Cases: Federal Civil Procedure Judgment <):::;;54.] "A cognovit is an instrument signed by a defendant In an action actually commenced confessing the plaintiff's demand to be just and empowering the plaintiff to sign judgment against him in default of his paying the plain tiffthe sum due to him within the time mentioned in the cognovit." John Indermaur, Principles of the Common Law 8 (Edmund H. Bennett ed., 1 st Am. ed. 1878). cognovit actionem (kog-noh-vit ak-shee-oh-nam). [Law Latin "he has confessed the action"] A defendant's written acknowledgment ofthe plaintiff's claim, autho rizing the plaintiff to take a judgment for a named sum; a cognovit. cognovit clause. (1925) A contractual provision by which a debtor agrees to jurisdiction in certain courts, waives notice requirements, and authorizes the entry of an adverse judgment in the event of a default or breach. Cognovit clauses are outlawed or restricted in most states. [C

in the event of a default or breach. Cognovit clauses are outlawed or restricted in most states. [Cases: Federal Civil Procedure <):::;;2396; Judgment ("';=54.J cognovit judgment. See JUDGMENT. cognovit note. A promissory note containing a cognovit clause. -Also termed judgment note. [Cases: Federal Civil Procedure (;:::2396; Judgment <):::;;54.] COGSA. 1. abbr. CARRIAGE OF GOODS BY SEA ACT. 2. Maritime law. A country's enactment of the interna tional convention popularly known as the Hague Rules. The acronym is used even when the country's statute has a different title; for example, the Canadian Carriage ofGoods by Water Act is referred to as the "Canadian COGSA." [Cases: Shipping <):::;; 103.] cohabitation (koh-hab-a-tay-sh;m), n. (I5c) The fact or state ofliving together, esp. as partners in life, usu. with the suggestion ofsexual relations. [Cases: Marriage <):::;; 13,22.] cohabit (koh-hab-it), vb. -cohabitative (koh-hab-a-tay-tiv), adj. -cohabitant (koh-hab-a tant), n. cohabitor (koh-hab-a-tar), n. illicit cohabitation. (18c) 1. The offense committed by an unmarried man and woman who live together as husband and wife and engage in sexual intercourse . This offense, where it still exists, is seldom prosecuted. 2. The condition ofa man and a woman who are not married to one another and live together in circum stances that make the arrangement questionable on grounds of social propriety, though not necessarily illegaL Also termed lascivious cohabitation; lewd and lascivious cohabitation. Cf. FORNICATION. [Cases: Criminal Law (;:::45.40; Lewdness L] lascivious cohabitation. See illicit cohabitation. matrimonial cohabitation. The living together of husband and wife. notorious cohabitation. (18c) Archaic. Illicit cohabi tation in which the parties make no attempt to hide their living arrangements. Also termed open and notorious cohabitation. See illicit cohabition. [Cases: Lewdness cohabitation agreement. A contract outlining the property and financial arrangements between persons who live together. Also termed living-together agree ment. Cf. PRENUPTIAL AGREEMENT. [Cases: Marriage cohabiting unmarried person of the opposite sex. See cUPos. Cohan rule (koh-han). Tax. A former rule that a taxpayer may approximate travel and entertainment expenses when no records exist if the taxpayer has taken all possible steps to provide documentation . Since 1962, travel and entertainment expenses have been only partly deductible and must be carefully documented, but courts may apply the Cohan reasoning to other items. Cohan v. Commissioner, 39 F.2d 540 (2d Cir. 1930). [Cases: Internal Revenue 4536.] coheir (koh-air). See HEIR. coheiress (koh-air-is). Hist. A female coheir. Cohen doctrine (koh-;:m). See COLLATERAL-ORDER DOCTRINE. coheres (koh-heer-eez), n. Roman law. A coheir. PI. coheredes (koh-heer-a-deez). cohort analysis (koh-hort). (1954) A method of mea suring discrimination in the workplace by comparing, at several points in time, the pay and promotions of employees of different cognizable groups. Cohort analyses are often used in employment -discrimination cases. [Cases: Civil Rights (';::;::> 1543.] coif (koyf). (l4c) Hist. 1. A white linen headpiece formerly worn by serjeants at law (barristers ofhigh standing) in common-law courts. 2. The rank or order of serjeants at law. See ORDER OF THE COIF. Coinage Clause. (1863) The provision in the U.S. Consti tution (art. 1, 8, cl. 5) granting to Congress the power to coin money. [Cases: United States (,'::::;::34.] coincident indicator. See INDICATOR. coindictee. One of two or more persons who have been jointly indicted. See joint indictment under INDICT MENT. coined mark. See fanciful trademark under TRADE MARK. coined-name claim. See PATENT CLAIM. coined term. See fanciful trademark under TRADE MARK. coined trademark. Seefanciful trademark under TRADE MARK. coinsurance. See INSURANCE. coinsurance clause. A provision in an insurance policy requiring a property owner to carry separate insurance up to an amount stated in the policy to qualify for full coverage. -Also termed contribution clause. [Cases: Insurance G-~2170.1 coinsurer. An insurer who shares losses sustained under an insurance policy. See coinsurance under INSURANCE. [Cases: Insurance (;::::'~2285.] cojudices. Archaic. In England, associate judges. COLA. abbr. COST-OF-LIVING ADJUSTMENT. cold bench. See BENCH. cold blood. (l8c) A killer's state of mind when commit ting a willful and premeditated homicide <a shooting in cold blood>. See COOL BLOOD. cr. HEAT OF PASSION. cold check. See bad check under CHECK. cold-comfort letter. See COMFORT LETTER (1). cold-water ordeal. See ordeal by water (1) under ORDEAL. colegatee (koh-Ie-ga-tee). A joint legatee; one of two or more persons who receive a legacy under a wilL Cf. LEGATEE. [Cases: Wills C=>708-872.] COLI. See corporate-owned life insurance under LIFE INSURANCE. colibertus (kol-i-b3r-tas). [Law Latin] Hist. A serf in free socage; that is, a serf who is nominally freed but is still subject to certain servile conditions . A coliber tus occupied a position in society between servile and free tenants. Also spelled collibertus. PI. coliberti. See SOCAGE. collaborative divorce. See DIVORCE. collaborative law. A dispute-resolution method by which parties and their attorneys settle disputes using non adversarial techniques to reach a binding agreement, with the understanding that ifthe parties cannot agree and choose to litigate instead, the attorneys involved in the negotiations will be disqualified from representing them any further. Cf. COOPERATIVE LAW; MEDIATION (1). collapsible corporation. See CORPORATION. collapsible partnership. See PARTNERSHIP. collar, n. The minimum and maximum price or ratio for a transaction. collate (b-layt), vb. Civil law. To return (inherited property) to an estate for division <the grandchildren collated the property they had received>. [Cases: Exec utors and Administrators collateral (ka-Iat-3r-dl), adj. 1. Supplementary; accom panying, but secondary and subordinate to <whether the accident victim was wearing a seat belt is a collateral issue>. 2. Not direct in line, but on a parallel or diverg ing line of descent; of or relating to persons who are related by blood but are neither ancestors nor descen dants <an uncle is in a collateral, not a direct, line>. Cf. LINEAL. -collaterality (ka-lat-ar-al-d-tee), n. collateral (ka-Iat-3r-al), n. (17c) 1. A person collaterally related to a decedent. [Cases: Descent and Distribu tion C-..37; Wills 2. Property that is pledged as security against a the property subject to a security interest or agricultural lien. See UCC 9-102(a) (12). -Also termed (in sense 2) collateral security. [Cases: Secured Transactions 115.] as-extracted collateral. 1. Oil, gas, or other minerals that are subject to a security interest that is created by a debtor haVing an interest in the minerals before extraction and that attaches to the minerals as they are extracted. UCC 9-102(a)(6)(A). 2. An account arising out ofthe sale at the wellhead or minehead of oil, gas, or other minerals in which the debtor had an interest before extraction. VCC 9-102(a)(6)(B). cash collateral. Collateral consisting of cash, nego tiable instruments, documents of title, securities, deposit accounts, or other cash equivalents. 11 USCA 363(a). cross-collateral. 1. Security given by all parties to a contract. 2. Bankruptcy. Bargained-for security that in addition to protecting a creditor's postpetition extension ofcredit protects the creditor's prepetition unsecured claims, which, as a result ofsuch security, obtain priority over other creditors' prepetition unse cured claims. Some courts allow this procedure, which is known as cross-collateralization. [Cases: Bankruptcy C=> 3037.] collateral act. Any act (usu. excluding the payment of money) for which a bond or recognizance is given as security. collateral affinity. See AFFINITY. collateral-agreement doctrine. See COLLATERAL-CON TRACT DOCTRINE. collateral ancestor. See collateral ascendant under ASCENDANT. collateral ascendant. See ASCENDANT. 298 collateral assignee collateral assignee. See ASSIGNEE. collateral assignment. See ASSIGNMENT (2). collateral assurance. See ASSURANCE. collateral attack. (1833) An attack on a judgment in a proceeding other than a direct appeal; esp., an attempt to undermine a judgment through a judicial proceed ing in which the ground of the proceeding (or a defense in the proceeding) is that the judgment is ineffective. Typically a collateral attack is made against a point of procedure or another matter not necessarily apparent in the record, as opposed to a direct attack on the merits exclusively. A petition for a writ ofhabeas corpus is one type ofcollateral attack. Also termed indirect attack. Cf. DIRECT ATTACK (1). [Cases: Criminal Law 0:='1407; Habeas Corpus 0:='203; Judgment collateral-benefit rule. See COLLATERAL-SOURCE RULE. collateral condition. See CONDITION (2). collateral consanguinity. See CONSANGUINITY. collateral consequence. A penalty for committing a crime, in addition to the penalties included in the criminal sentence . An example is the loss of a pro fessionallicense. When a collateral consequence exists, a defendant's appeal of a conviction does not become moot when the criminal sentence is completed. collateral contract. See CONTRACT. collateral-contract doctrine. (1947) The principle that in a dispute concerning a written contract, proof of a second (usu. oral) agreement will not be excluded under the parol-evidence rule if the oral agreement is independent ofand not inconsistent with the written contract, and if the information in the oral agreement would not ordinarily be expected to be included in the written contract. -Also termed collateral-agreement doctrine. [Cases: Evidence ~440.] collateral covenant. See COVENANT (1). collateral defense. See DEFENSE (1). collateral descendant. See DESCENDANT. collateral descent. See DESCENT. collateral estoppel (e-stop-JI). (1941) 1. The binding effect of a judgment as to matters actually litigated and determined in one action on later controversies between the parties involving a different claim from that on which the original judgment was based. 2. A doctrine barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs Significantly from the first one. -Also termed issue preclusion; issue estoppel; direct estoppel; estoppel byjudgment; estoppel by record; estoppel by verdict; cause-ai-action estoppel; technical estoppel; estoppel per rem judicatam. Cf. RES JUDICATA. [Cases: Judgment ~634, 713, 948(1).] administrative collateral estoppel. Estoppel that arises from a decision made by an agency acting in a judicial capacity. [Cases: Administrative Law and Procedure (;:::::;501.] defensive collateral estoppel. (1968) Estoppel asserted by a defendant to prevent a plaintiff from relitigat ing an issue previously decided against the plaintiff. [Cases: Judgment ~632.] nonmutual collateral estoppel. Estoppel asserted either offensively or defenSively by a nonparty to an earlier action to prevent a party to that earlier action from relitigating an issue determined against it. [Cases: Judgment C::'632.] offensive collateral estoppel. (1964) Estoppel asserted by a plaintiff to prevent a defendant from relitigating an issue previously decided against the defendant. [Cases: Judgment 0:='632.] collateral fact. See FACT. collateral fraud. See extrinsic fraud (1) under FRA

2.] collateral fact. See FACT. collateral fraud. See extrinsic fraud (1) under FRAUD. collateral heir. See HEIR. collateral-inheritance tax. See TAX. collateral issue. See ISSUE (1). collateralize (kJ-Iat-Jr-Jl-lZ), vb. (1941) 1. To serve as collateral for <the purchased property collateralized the loan agreement>. 2. To make (a loan) secure with collateral <the creditor insisted that the loan be collat eralized>. [Cases: Secured Transactions 1.] col lateralization (b-Iat-Jr-al-J-zay-shan), n. collateralized mortgage obligation. Securities. A bond secured by a group ofmortgage obligations or pass through securities and paid according to the payment schedule ofits class (or tranche). CMOs are issued by the Federal Home Loan Mortgage Corporation, and benefit from predictable payments of interest and prin cipal. -Abbr. CMO. See pass-through security under SECURITY; TRANCHE. collateral limitation. See LIMITATION. collateral line. See LINE. collateral loan. See secured loan under I.OAN. collateral matter. (l7c) Evidence. Any matter on which evidence could not have been introduced for a relevant purpose. If a witness has erred in testifying about a detail that is collateral to the relevant facts, then another party cannot call witnesses to contradict that point -cross-examination alone must suffice. Fed. R. Evid. 608(b). [Cases: Evidence Witnesses 405.] collateral mistake. See unessential mistake under MISTAKE. collateral mortgage. See MORTGAGE. collateral negligence. See NEGLIGE:'>!CE. collateral-negligence doctrine. (1941) The rule holding that one who engages an independent contractor is not liable for physical harm that the contractor causes if (1) the contractor's negligence consists solely of the improper manner in which the contractor's work is per formed, (2) the risk of harm created is not normal to the work, and (3) the employer had no reason to contem 299 collective-bargaining agreement plate the contractor's negligence when the contract was made. [Cases: Labor and Employment collateral note. See secured note under NOTE (1). collateral obligation. A liability undertaken by a person who becomes bound for another's debt. -Also termed accessorial obligation. collateral-order doctrine. (1950) A doctrine alloWing appeal from an interlocutory order that conclusively determines an issue wholly separate from the merits of the action and effectively unreviewable on appeal from a final judgment. Also termed Cohen doctrine (fr. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221 (1949. See appealable decision under DECISION. [Cases: Appeal and Error Federal Courts C=c572.l.J collateral power. See POWER (5). collateral proceeding. See PROCEEDING. collateral promise. See PROMISE. collateral relative. See RELATIVE. collateral security. See SECURITY. collateral-source rule. (1951) Torts. 'Ine doctrine that if an injured party receives compensation for the injuries from a source independent ofthe tortfeasor, the payment should not be deducted from the damages that the tortfeasor must pay . Insurance proceeds are the most common collateral source. Also termed collateral-benefit rule. [Cases: Damages collateral trust bond. See BOND (3). collateral trust certificate. See collateral trust bond (1) under BO:-.rD (3). collateral use. See USE (1). collateral warranty. See WARRANTY (1). collatio bonorum (kd-Iay-shee-oh bd-nor-dm). [Latin "collation of goods"] Civil law. The bringing into hotchpot ofgoods or money advanced by a parent to a child, so that the parent's personal estate will be equally distributed among the parent's children. PI. collationes bonorum. See HOTCHPOT. "[Ilf the estates so given them, by way of advancement, are not quite equivalent to the other shares, the children so advanced shall now have so much as will make them equal. This just and equitable provision hath been also said to be derived from the col/atio bonorum of the imperial law: which it certainly resembles in some pOints, though it differs widely in others. But it may not be amiss to observe, that, with regard to goods and chattels, this is part of ... the common law of England, under the name of hotchpot." 2 William Blackstone, Commentaries on the Laws ofEngland 516-17 (1766). collation (b-Iay-sh,m), n. (14c) 1. The comparison ofa copy with its original to ascertain its correctness; the report ofthe officer who made the comparison. 2. The taking into account ofthe value ofadvancements made by an intestate to his or her children so that the estate may be divided in accordance with the intestacy statute. Cf. HOTCHPOT. [Cases: Descent and Distribution (;::::c 93-118.) 3. Eccles. law. The act (by a bishop) of confer ring a benefice in which the bishop holds the right of advowson, thus combining the acts of presentation and institution. Also termed collation to a benefice. See advowson collative under ADVOWSON. collate (kd layt), vb. collator (kd-lay-tdr), n. collatione facta uni post mortem alterius (k<l-lay-shee oh-nee fak-td yoo-m pohst mor-tdm al-teer-ee-ds [or awl-]). [Law Latin "by collation to a benefice made to one after the death ofthe other"] Hist. A writ directed to the Court ofCommon Pleas, requesting that the court order a bishop to appoint a clerk in place of another who had died pending appointment. collatione heremitagii (b-lay-shee-oh-nee her-d-md tay-jee-I). [Law Latin "by collation ofhermitage"] Hist. A writ by which the Crown conferred the keeping ofa hermitage on a clerk. collation to a benefice. See COLLATION. collatio signorum (h-Iay-shee-oh sig-nor-dm). [Law Latin "comparison ofsigns"] Hist. A method oftesting a seal's genuineness by comparing it with another known to be genuine. collative fact. See investitive fact under FACT. collectability. The ability ofa judgment creditor to make a judgment debtor pay the amount ofthe judgment; the degree to which a judgment can be satisfied through collection efforts against the judgment debtor. collecting bank. See BANK. collection. Banking. The process through which an item (such as a check) passes in a payor bank. See payor bank under BANK. [Cases: Banks and Banking C:::::> 156-175.] collection indorsement. See restrictive indorsement under INDORSEME:-.rT. collection item. An item (such as a documentary draft) taken by a bank for a customer's account, but not credited until payment for the item has actually been received. See documentary draft under DRAFT. [Cases: Banks and Banking (;=> 158, 161(1).] collective bargaining. Negotiations between an employer and the representatives oforganized employ ees to determine the conditions ofemployment, such as wages, hours, discipline, and fringe benefits. See CON CESSION BARGAIN mG. [Cases: Labor and Employment (;=>1100.] "Collective bargaining means the joint determination by employees and employers of the problems of the employ ment relationship. Such problems include wage rates and wage systems, hours and overtime, vacations, discipline, work loads, classification of employees, layoffs, and worker retirement. The advent of collective bargaining does not give rise to these problems. Rather they are germane to the industrial relations environment, and exist with or without unionization." Benjamin J. Taylor & Fred Whitney, Labor Relations Law 3 (1971). collective-bargaining agreement. Labor law. A contract between an employer and a labor union regulating employment conditions, wages, benefits, and griev ances. Abbr. CBA. -Also termed labor agree ment; labor contract; union contract; collective-labor agreement; trade agreement. [Cases: Labor and Employ ment collective-knowledge rule. See FELLOW-OFFICER RULE. collective-labor agreement. See COLLECTIVE- BARGAIN 1NG AGREEMENT. collective mark. See collective trademark under TRADE MARK. collective measure. lnt'llaw. An activity undertaken by more than one country to achieve an agreed-upon end. The countries involved may undertake a collec tive measure either in an ad hoc manner or through an institutionalized association. collective punishment. (I872) A penalty inflicted on a group ofpersons without regard to individual respon sibility for the conduct giving rise to the penalty. Col lective punishment was outlawed in 1949 by the Geneva Convention. collective trademark. See TRADEMARK. collective work. See WORK (2). collector of decedent's estate. A person temporar ily appointed by a probate court to collect assets and payments due to a decedent's estate, and to settle other financial matters requiring immediate attention. A collector is often appointed to look after an estate when there is a will contest or a dispute about who should be appointed administrator. The collector's duties end when an executor or administrator is appointed. [Cases: Executors and Administrators G=>22.] collega (b-Iee-gd), n. [Latin] Roman law. A person invested with joint authority; a colleague or associate. Collega usu. referred to a member ofan association (collegium) or a coheir. See COLLEGIUM. collegatarius (b-Ieg-;l-tair-ee-;ls), n. [Latin] Roman law. A colegatee. collegatary (k;l-leg-a-ter-ee). A colegatee; a person who shares a common legacy with one or more other persons. Also termed collegatarius (b-leg-a-ter ee-as). college. 1. An institution oflearning that offers instruc tion in the liberal arts, humanities, and sciences, but not in the technical arts or in studies preparatory to admission to a profession. [Cases: Colleges and Uni versities 2. An assembly ofpeople, established by law or private agreement to perform some special function or to promote some common purpose, usu. ofan educational, political, ecclesiastical, or scientific nature. College ofAdvocates and Doctors ofLaw. See DOCTORS' COMMONS. College ofArms. See HERALDS' COLLEGE. College ofJustice. Scots la w. The body ofjudges and lawyers created in 1532 to constitute the Court of Session, the superior civil court ofScotland. collegium (kd-Iee-jee-;lm), n. [Latin] Roman law. An association of at least three people having the right to assemble and enact rules concerning membership, organization, and the rights and duties ofmembers. Collegia were formed for profeSSional, cultural, chari table, and religious purposes. PI. collegia. collegium illicitum (b-Iee-jee-am i-lis-;l-t;lm). A col legium that either is not sanctioned by law or assem b
es for some purpose other than that expressed in its charter. collegium licitum (b-Iee-jee-am lis-;l-t~m). An assem blage ofpeople empowered to act as a juristic person in the pursuit ofsome useful purpose or business. collision. Maritime law. 1. The contact of two or more moving vessels. [Cases: Collision 2. ALLISION. collision insurance. See INSURANCE. colliterales etsocii (b-lit-a-ray-Ieez et soh-shee-I). [Law Latin "assistants and associates"] Hist. In England, the former title of assistants to the Chancery judges (i.e., masters in chancery). collobium (kd-Ioh-bee-~m). [Law Latin] Hist. A hood or covering for the shoulders, formerly worn by serjeants at-law. colloquium (kd-Ioh-kwee-am). (17c) 1. The offer of extrinsic evidence to show that an allegedly defama tory statement referred to the plaintiff even though it did not explicitly mention the plaintiff. [Cases: Libel and Slander G=>82.] 2. The introductory averments in a plaintiff's pleading setting out all the special circum stances that make the challenged words defamatory. Cf. INDUCEMENT (4); INNUENDO (2). [Cases: Libel and Slander C=)82.] PI. colloquiums, colloquia. colloquy (kol-a-kwee). (15c) Any formal discussion, such as an oral exchange between a judge, the prosecutor, the defense counsel, and a criminal defendant in which the judge ascertains the defendant's understanding of the proceedings and of the defendant's rights . This discussion helps the court to determine the defendant's ability to continue in the proceedings (esp. important during a change-of-plea hearing). collusion (b-Ioo-zh;ln), n. (14c) 1. An agreement to defraud another or to do or obtain something forbid den by law. [Cases: Fraud (;::;>30.] 2. As a defense to divorce, an

den by law. [Cases: Fraud (;::;>30.] 2. As a defense to divorce, an agreement between a husband and wife to commit or to appear to commit an act that is grounds for divorce . For example, before the advent ofno-fault divorce, a husband and wife might agree to make it appear that one ofthem had committed adultery. Cf. CONNIVANCE (2); CONDONATION (2); RECRIMINATION (1). collude, vb. -collusive, adj. coUuder, n. tacit collusion. Antitrust. See CONSCIOUS PARALLEL ISM. collusive action. See ACTION. collusive joinder. See JOINDER. Collyer doctrine (kol-pr). Labor law. The principle under which the National Labor Relations Board will refer an issue brought before it to arbitration ifthe issue is arbitrable under the collective-bargaining agreement. Collyer Insulated Wire, 192 NLRB 837 (197l). Cf. SPIEL 301 BERG DOCTRINE. [Cases: Labor and Employment 1678(1).J colonial law. 1. Law governing a colony or colonies. 2. Ihe body oflaw in force in the 13 original U.S. colonies before the Declaration ofIndependence. colon-semicolon form. Patents. A style ofwriting patent claims that uses a colon after the preamble and semico lons between every two elements. Cf. OUTLINE FORM, SINGLE-PARAGRAPH FORM; SUBPARAGRAPH FORM. eolonus partiarius (ka-loh-n<ls pahr-shee-air-ee-<ls). [Latin "tenant farmer sharing produce" or "a sharing landholder"J Roman law. A farmer who gave a fixed portion of the farm's produce as payment (instead of money) to the landlord. Cf. SHARECROPPING. colony, n. Int'llaw. 1. A dependent territorial entity subject to the sovereignty of an independent country, but considered part ofthat country for purposes ofrela tions with third countries. 2. A group ofpeople who live in a new territory but retain ties with their parent country. 3. The territory inhabited by such a group. See MOTHER COUNTRY. colonize, vb. -colonial, adj. color, n. (13c) 1. Appearance, guise, or semblance; esp., the appearance of a legal claim to a right, authority, or office <color of title> <under color of state law>. 2. Common-law pleading. An apparent, but legally insuf ficient, right or ground ofaction, admitted in a defen dant's pleading to exist for the plaintiff; esp., a plaintiff's apparent (and usu. false) right or title to property, the existence of which is pleaded by the defendant and then attacked as defective, as part ofa confession and avoid ance to remove the case from the jury by turning the issue from one offact to one of law. See GIVE COLOR. [Cases: PleadingC--:>133.] "It is a rule of pleading, that no man be allowed to plead specially such a plea as amounts only to the general issue. or a total denial of the charge; but in such case he shall be driven to plead the general issue in terms, whereby the whole question is referred to ajury. But if the defendant. in an assise or action of trespass, be desirous to refer the validity of his title to the court rather than the jury, he may state his title specially, and at the same time give colour to the plaintiff, or suppose him to have an appearance or colour of title, bad indeed in point of law, but of which the jury are not competent judges. As if his own true title be, that he claims by feoffment with livery from A, by force of which he entered on the lands in question, he cannot plead this by itself, as it amounts to no more than the general issue ... not guilty in an action of trespass. But he may allege this speCially, provided he goes farther and says, that the plaintiff claiming by colour of a prior deed of feoffment, without livery. entered; upon whom he entered; and may then refer himself to the judgment of the court which of these two titles is the best in point of law." 3 William Blackstone, Commentaries on the Laws ofEngland 309 (1768). express color. Hist. A defendant's admission that the plaintiff has an apparent right to something coupled with an assertion that the plaintiff's right is legally inferior to the defendant's right to the same thing. This pleading was typically used in cases of trespass to land by making fictitious allegations that put the plaintiff's ownership of the land in question. For instance, the defendant would admit that the color book plaintiff had shown apparent ownership ofthe land by possessing it but then claim that the plaintiff's title was somehow defective, so that the plaintiff did not actually own the land. This pleading was abolished by the Common-Law Procedure Act of 1852, 15 & 16 Viet., ch. 76, 64. "Express color is a fictitious allegation, not traversable, to give an appearance of right to the plaintiff, and thus enable the defendant to plead specially his own title, which would otherwise amount to the general issue. It is a licensed evasion of the rule against pleading contradictory matter specially." Benjamin J. Shipman, Handbook ofCommon-Law Pleading 202, at 351 (Henry Winthrop Ballantine ed., 3d ed. 1923). implied color. L A defendant's tacit admission of a plaintiff's prima facie case by failing to deny it. 2. An apparent ground ofaction that arises from the nature ofthe defense, as when the defense consists ofa con fession and avoidance in which the defendant admits the facts but denies their legal sufficiency . This is a quality inherent in all pleadings in confession and avoidance. colorable, adj. (14c) 1. (Ofa claim or action) appearing to be true, valid, or right <the pleading did not state a colorable claim>. 2. Intended to deceive; counterfeit <the court found the conveyance of exempt property to be a colorable transfer, and so set it aside>. colorable alteration. Intellectual property. A modifica tion that effects no real or substantial change, but is made only to distinguish an invention or work from an existing patent or copyright; a small change made in a product or process solely to avoid literal infringe ment ofan earlier patent's claim. Also termed color able deviation. [Cases: Patents Copyrights and Intellectual Property colorable claim. See CLAIM (4). colorable deviation. See COLORABLE ALTERATION. colorable imitation. Trademarks. Any mark, whether or not created with an intent to deceive, whose resem blance to a registered mark is likely to cause confusion or mistake. See SIMILARITY. [Cases: Trademarks 1080.] colorable-imitation test. Trademarks. A test for a trade mark violation in which a court determines whether an ordinary person who is not allowed to compare the two items side by side could recognize the difference between the two. [Cases: Trademarks C=>1097.] colorable transaction. See TRANSACTION. colorable transfer. See TRANSFER. Colorado Air Force School. See UNITED STATES AIR FORCE ACADEMY. Colorado River abstention. See ABSTENTION. color book. Archaic. Int'llaw. An official compilation of diplomatic documents and internal papers and reports of a government, the purpose of which is to inform the legislature and the public about foreign policy, esp. during foreign crises . Color books reached their 302 c%re officii height ofpopularity in the late 19th and early 20th cen turies. They are now little used in most countries. colore officii (k;l-lor-ee ;:dish-ee-I), [Latin "by color of office"] See COLOR OF OFFICE. color ofapparent organization. The appearance ofcor porate authority, including the assumption and exercise ofcorporate functions in good faith, even though the corporation's organizers did not fully or substantially comply with the terms of the corporate charter or the statutory requirements for incorporation. See de facto corporation under CORPORATION. [Cases: Corporations (:=>29(2).] color of authority. The appearance or presumption of authority sanctioning a public officer's actions . The authority derives from the officer's apparent title to the office or from a writ or other apparently valid process the officer bears. [Cases: Officers and Public Employ ees color onaw. (17c) The appearance or semblance, without the substance, ofa legal right . The term usu. implies a misuse ofpower made possible because the wrongdoer is clothed with the authority ofthe state. State action is synonymous with color of[statellaw in the context of federal civil-rights statutes or criminal law. See STATE ACTION. [Cases: Civil Rights color ofoffice. lhe authority or power that is inherent in an office, esp. a public office . Acts taken under the color ofan office are vested with, or appear to be vested with, the authority entrusted to that office. [Cases: Officers and Public Employees (.;:::,121.] "The starting point in the law of bribery seems to have been when a judge, for doing his office or acting under color of his office, took a reward or fee from some person who had occasion to come before him, -and apparently guilt attached only to the judge himself and not to the bribegiver." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 527 (3d ed. 1982). color of process. 'Ihe appearance of validity and suf ficiency surrounding a legal proceeding that is later found to be invalid. color of title. (18c) A written instrument or other evidence that appears to establish title but does not in fact do so. Also termed apparent title. com. abbr. COMPANY. comaker. One who participates jointly in borrow ing money on a promissory note; esp., one who acts as surety under a note if the maker defaults. -Also termed COSigner. Cf. MAKER (2). [Cases: Bills and Notes <8=)48, 118.1 combatant (k<lm-bahmt or kom-b<l-tflnt). (15c) Int'[ law. A person who participates directly in hostilities. "Legitimate" combatants are members of the armed forces or uniformed members ofa militia or volunteer corps, under military command and subject to the laws ofwar. Cf. NONCOMBANT. enemy combatant (bm-bat-<lnt). A combatant captured and detained while serving in a hostile force during open warfare . In general, the separationof-powers doctrine prevents a United States civilian court from interfering with the military's handling of enemy combatants, at least as long as the hostili ties continue. An enemy combatant may be detained without charges but has the right to contest the deten tion. Rasul v. Bush, 542 U.S. 466,124 S.Ct. 2686 (2004). United States citizenship does not prevent a person from being designated an enemy combatant, but the government must give a citizen-detainee notice ofthe factual basis for the classification and a fair opportu nity to rebut the factual assertions before a neutral decision-maker. Hamdi v. Rumsfeld, 542V.s. 507, 124 S.Ct. 2633 (2004). War and National Emer gency combination. 1. An alliance of individuals or corpora tions working together to accomplish a common (usu. economic) goal. See COMBINATION IN RESTRAINT OF TRADE. 2. CONSPIRACY. 3. STRADDLE. 4. Patents. A union ofold and new elements in an invention. -The term encompasses not only a combination ofmechani cal elements but also a combination of substances in a composition claim or steps in a process claim. Cf. AGGREGATION. [Cases: Patents (:=>26.] 5. Patents. An invention that uses two or more patented inventions to make a distinct and useful third product. In the past, an inventor seeking a combination patent had to show "synergism," a surprising result from the combination. But the u.s. Court of Appeals for the Federal Circuit ruled that the term "combination" has no legal effect, because most inventions combine and build on existing technology. Today there are no special rules for com bination patents. 6. Patents. A union ofelements in an invention that work together cooperatively to perform a useful function; the opposite of an aggregation. Cf. AGGREGATION. exhausted combination. See old combination. old combination. A combination in which an element works in a different way but performs the same function as the corresponding element in a previ ously patented combination . The new element may be patentable but the combination may not be. Also termed exhausted combination. Patents C:::> 26(1.1).] combination in restraint oftrade. Antitrust. An express or tacit agreement between two or more persons or entities designed to raise prices, reduce output, or create a monopoly. -Also termed combine. [Cases: Antitrust and Trade Regulation (:=>537.] combination patent. See PATENT (3). combine (kom-bm), n. See COMBINATION IN RESTRAINT OF TRADE. combined application. See TRADEMARK APPLICATION. combined 8 and 15 affidavit. Trademarks. A sworn statement that satisfies the requirements ofboth 8 and 15 ofthe Lanham Act. -Sometimes shortened to 8 and 15 affidavit. -Also termed combined 8 and 15 declaration. See DECLARATION OF INCONTESTABILITY; DECLARATION OF 'USE. [Cases: Trademarks 1304.] combustio domorum

DECLARATION OF 'USE. [Cases: Trademarks 1304.] combustio domorum (bm-bus-tee-oh da-mor-am). [Latin "houses burning"] Hist. See HOUSEBURNING. comes (koh-meez). [Latin] Hist. 1. A count or earl. 2. A person who is part of a high government official's retinue. PL comites. See COMITATUS. comes and defends. Archaic. Traditionally, the standard commencement of a defendant's plea or demurrer . The phrase, now rarely used, announces the defendant's appearance in court and intent to defend against the action. comes now. Archaic. Traditionally, the standard com mencement in pleadings <Comes now the plaintiff, Gilbert Lewis, by and through his attorneys of record, and would show unto the court the following> . For a plural subject, the phrase is come now <Come now the plaintiffs, Bob and Louise Smith>. -Sometimes short ened to comes <Comes the State ofTennessee>. -Also termed now comes. comfort letter. 1. Securities. A letter from a certified public accountant certifying that no false or mislead ing information has been used in preparing a financial statement accompanying a securities offering . Such a letter usu. has limited effect because the CPA ordinarily attests to certain representations and warranties that the issuer has authorized the CPA to rely on. -Also termed cold-comfort letter. 2. Corporations. A letter, esp. from a parent corporation on behalf of a subsid iary, stating its support (but short of a guarantee) for the activities and commitments of another corpora tion. Also termed letter ofcomfort. comfort opinion. See OPINION (2). comingle, vb. See COMMINGLE. comingling. See COMMINGLING. coming-to-rest doctrine. Insurance. The principle that coverage of shipped goods ends when the goods are unloaded and any cables or other links to the trans porting vehicle have been disconnected . The coming to-rest doctrine covers only the movement of goods from the shipping vehicle to a place of rest outside the vehicle, in contrast to the broader coverage of the com plete-operation rule. Cf. COMPLETE-OPERATION RULE. [Cases: Insurance (:::>2137(3),2681.] comitas (kom-<l-t<ls). [Latin "courtesy"] See COMITY. comitas gentium. See COMITY. comitas legum (kom-<l-tas lee-gam). [Law Latin] Hist. Comity oflaws. See COMITY. comitatu commisso (kom-a-tay-t[y]oo b-mis-oh). [Latin "county commission"] Hist. A writ or commis sion authorizing a sheriff to take charge of a county. comitatu et castro commisso (kom-a-tay-t[y]oo et kas-troh ka-mis-oh). [Latin "county and castle com mission"] Hist. A writ authorizing a sheriff to take charge of a county and a castle. comitatus (kom-<l-tay-t<ls). [Latin] Hist. 1. A county or shire. See POSSE COMITATlTS. 2. The territorial iurisdic tion of a count or earL 3. A county court. 4. 'Ihe retinue accompanying a prince or high government official. comites (kom-;l-teez). See COMES. comites paleys (kom-a-teez-pa-lays). [Law French] lUst. Counts or earls palatine; those who exercise royal privi leges in a county palatine. See COUNTY PALATINE. comitia (ka-mish-ee-a), n. [Latin "assembly"] Roman law. An assembly of the Roman people, gathered together for legislative or judicial purposes . Women were excluded from participation. comitia centuriata (ka-mish-ee-a sen-tyoor-ee-ay-ta). (often cap.) An assembly of the entire populace, voting by centuries (that is, military units) empowered to elect magistrates and to act as a court of appeal in a capital matter. "The Comitia Centuriata, said to have been originated by the sixth King, Servius Tullius, included the whole Roman people arranged in classes according to their wealth, so as to give the preponderating power to the richest. During the regal period it was a military organisation on the basis of property: under the Republic it became a legislative body, ousting the Comitia Curiata." William A. Hunter, Introduc tion to Roman Law 16 (F.H. Lawson ed. 9th ed. 1934). comitia curiata (ka-mish-ee-<l kyoor-ee-ay-ta). (often cap.) An assembly of (originally) patricians whose chief function was to authorize private acts of citizens, such as declaring wills and adoptions . The comitia curiata engaged in little legislative activity. "The oldest [of the four assemblies of the Roman people] was the Comitia Curiata. In the regal period this assembly consisted of the Populus Romanus in its thirty curies (or family groups): it could meet only by summons of the King; it merely accepted or rejected the proposals submitted by him, without the right of discussion or amendment; nor was any decision by it valid without the authorisation of the Senate. Under the Republic it rapidly fell into the background, though it formally eXisted, represented by thirty lictors, down into Imperial times: for the private law its main importance lay in its meetings under pontifical presidency to deal with matters of religious significance, such as ad rogations and wills." William A. Hunter, Introduc tion to Roman Law 15-16 (F.H. Lawson ed., 9th ed. 1934). comitia tributa (ka-mish-ee-a tri-byoo-ta). (often cap.) An assembly of tribes convened to elect lower-ranking officials . The comilia tributa undertook a great deal of legislative activity in the later Roman republic. Cf. CONCILIUM PLEBIS. "The Comitia Tributa was the assembly of the whole Roman people in their tribes - a regional classification. In this assembly the influence of numbers predominated." William A. Hunter, Introduction to Roman Law 16 (F.H. Lawson ed., 9th ed. 1934). comity (kom-<l-tee). (16c) 1. A practice among politi cal entities (as nations, states, or courts of differ ent jurisdictions), involving esp. mutual recognition of legislative, executive, and judicial acts. -Also termed comitas gentium; courtoisie internationaie. See FEDERAL-COMITY DOCTRINE; J'UDICIAL COMITY. Cf. ABSTENTION. '''Comity,' in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws." Hilton v. Guyot, 159 U.s. 113,163-64,16 S.Ct. 139, 143 (1895). 2. INTERNATIONAL LAW. This sense is considered a misusage: "[I]n Anglo-American jurisprudence, ... the term is also misleadingly found to be used as a synonym for international law." Peter MacaIister Smith, "Comity," in 1 Encyclopedia ofPublic Interna tional Law 672 (1992). Comity Clause. (1921) The clause of the U.S. Constitu tion giving citizens of one state the right to all privi leges and immunities enjoyed by citizens of the other states. US. Const. art. IV, 2, d. 1. See PRIVILEGES AND IMMUNITIES CLAUSE. [Cases: Constitutional Law (;~:;)2935-2963.] comm. abbr. COMMONWEALTH. command. (l4c) 1. An order; a directive. 2. In legal posi tivism, the sovereign's express desire that a person act or refrain from acting a certain way, combined with the threat ofpunishment for failure to comply. "Commands are orders backed by threats. It is in virtue of threatened evils, sanctions, that expressions of desire not only constitute commands but also impose an obligation or duty to act in the prescribed ways." Martin P. Golding, Philosophy ofLaw 26 (1975). command, vb. To direct authoritatively; to order. commander-in-chief. (l7c) 1. One who holds supreme or highest command ofarmed forces. [Cases: Armed Services C:::;,1,4.] 2. (cap.) The title of the US. President when acting as the constitutionally deSignated leader of the nation's military. U.S. Const. art. II, 2. Commander in Chief Clause. The clause of the U.S. Constitution appointing the President as supreme com mander of the military. U.S. Const. art. II, 2, cl. 1. [Cases: Armed Services ~1,4.] commandment. Hist. 1. An authoritative order of a judge or magisterial officer. 2. The offense ofinducing another to commit a crime. command rape. See RAPE. commencement. See INTRODUCTORY CLAUSE. commencement ofinfringement. Copyright. The first ofa series of discrete copyright violations, such as the first of many separate sales of infringing items. See INFRINGEMENT. [Cases: Copyrights and Intellectual Property ~53(1).] commend a (b-men-da). A business association in which one person has responsibility for managing all business property. commendam (ka-men-dam or -dam). 1. Hist. Eccles. law. A vacant benefice held by a clerk until a regular pastor could be appointed. -Bishops and other dignitaries found commendams to be lucrative sources ofincome. Commendams were abolished in England in 1836. See BENEFICE. 2. Partnership in commendam. See limited partnership under PARTNERSHIP. commendation. Hist. The act of becoming a lord's feudal tenant to receive the lord's protection. commendator (kom-,m-day-tar). Eccles. law. A person holding a commendam (a benefice) as a trustee . Com mendators are so called because benefices are com mended to their supervision. See COMMENDAM. commendatus (kom-an-day-tas). Hist. A person who, by voluntary oath ofhomage, was placed under a lord's protection. comment, n. (14c) 1. NOTE (2). 2. An explanatory state ment made by the drafters ofa particular statute, code section, or rule. [Cases: Statutes ~211.1 commen tator, n. commentators. See POSTGLOSSATORS. commenter. One who comments; esp., one who sends comments to an agency about a proposed administra tive rule or regulation. See NOTICE-AND-COMMENT PERIOD. [Cases: Administrative Law and Procedure C:::>394.J comment letter. Securities. A letter prepared by an SEC examiner to request additional information or describe deficiencies in a filing, particularly a registration state ment. comment on the evidence. (I8c) A statement made to the jury by the judge or by counsel on the probative value ofcertain evidence. Fed. R. Evid. 105. Lawyers typically make such comments in closing argument, and judges may make such comments in federal court. But most state-court judges are not permitted to do so when examining a witness, instructing the jury, and the like (in which case the comment is sometimes termed an impermissible comment on the evidence). [Cases: Criminal Law ~2093; Federal Civil Procedure 1968, 1973; Trial C:-;o29(2), 121.] comment period. See NOTICE-AND-COMMENT PERIOD. commerce. (16c) The exchange of goods and services, esp. on a large scale involVing transportation between cities, states, and nations. internal commerce. See intrastate commerce. international commerce. Trade and other business activities between nations. interstate commerce. (1843) Trade and other business activities between those located in different states; esp., traffic in goods and travel of people between states. For purposes of this phrase, most statu tory definitions include a territory of the United States as a state. Some statutory definitions of inter state commerce include commerce between a foreign country and a state. -Also termed interstate trade. [Cases: Commerce ~5.l intrastate commerce. (1887) Commerce that begins and ends entirely within the borders of a single state. Also termed internal commerce. [Cases: Commerce 305 commercial set Commerce Clause. (1868) U.S. Const. art. I, 8, cl. 3, which gives Congress the exclusive power to regulate commerce among the states, with foreign nations, and with Indian tribes. [Cases: Commerce ~10, 12.] Dormant Commerce Clause. (1930) The constitutional principle that the Commerce Clause prevents state regulation of interstate commercial activity even when Congress has not acted under its Commerce Clause power to regulate that activity. -Also termed Negative Commerce Clause. [Cases: Commerce 10.] Commerce Court. See COURT. commerce power. Congress's constitutionally conferred power to regulate trade between the states. [Cases: Commerce ~5.J commercia belli (b-mar-shee-J bel-I). [Latin "commerce ofwar"] Commercial dealings or contracts between nations at war, or between the subjects of nations at war, under which arrangements for nonhostile dealings are made. commercial acquiescence. See ACQUIESCENCE. com

nonhostile dealings are made. commercial acquiescence. See ACQUIESCENCE. commercial acre. Property. The amount of land left in a subdivided acre after deducting the amount dedi cated to streets, sidewalks, utilities, etc . The area of a commercial acre is always less than an actual acre. Cf. ACRE. commercial activity. See ACTIVITY (1). commercial-activity exception. (1973) An exemption from the rule of sovereign immunity, permitting a claim against a foreign state to be adjudicated in the courts of another state ifthe claim arises from private acts undertaken by the foreign state, as opposed to the state's public acts. See RESTRICTIVE PRINCIPLE OF SOVEREIGN IMMUNITY; JURE GESTIONIS; JURE IMPERII. [Cases: International Law C=~10.33.] .commercial agent. See AGENT (2). commercial assets. See ASSET. commercial bank. See BANK. commercial bribery. See BRIBERY. commercial broker. See BROKER. commercial court. See COL'RT. commercial credit company. See commercial finance company under FI:-;[ANCE COMPANY. commercial crime. See CRIME. commercial defamation. See trade defamation under DEFAMATION. commercial disparagement. See TRADE DISPARAGE MENT. commercial division. See business court under COURT. commercial domicile. See DOMICILE. commercial finance company. See FINANCE COMPANY. commercial franchise. See FRANCHISE (4). commercial frustration. See FRUSTRATION. commercial general-liability policy. See INSL'RANCE POLICY. commercial goodwill. See GOODWIl.L. commercial impracticability. See IMPRACTICABILITY. commercial insurance. See INSURANCE. commercialized obscenity. See OBSCENITY. commercial law. (18c) 1. The substantive law dealing with the sale and distribution ofgoods, the financing ofcredit transactions on the security ofthe goods sold, and negotiable instruments . Most American com merciallaw is governed by the Uniform Commercial Code. Also termed mercantile law. "Although the term commercia/law is not a term of art in American law it has become synonymous in recent years with the legal rules contained in the Uniform Commer cial Code." Jonathan A. Eddy & Peter Winship, Commercial Transactions 1 (1985). 2. LAW MERCHANT. commercial-law notice. See NOTICE. commercial lease. See LEASE. commercial letter ofcredit. See LETTER OF CREDIT. commercial loan. See LOAN. commercially reasonable, adj. (1922) (Of a property sale) conducted in good faith and in accordance with commonly accepted commercial practice. Under the UCC, a sale of collateral by a secured party must be done in a commercially reasonable manner, or the obligor's liability for any deficiency may be reduced or eliminated. See DCC 9-61O(b), 9-626. [Cases: Secured Transactions 240.] commercially significant noninfringing use. Intellec tual property. The routine use of a product in a way that does not infringe intellectual-property rights; the judicial test for determining whether the sale of a product amounts to contributory infringement. Ifthe product (such as a video recorder) can be used in a way that does not infringe those rights (such as recording a program in order to watch it at a later time), then its sale cannot be enjOined, or its manufacturer subjected to a court-imposed royalty. See Sony Corp. ofAm. v. Universal City Studios, Inc., 464 U.S. 417, 442, 104 S.Ct. 774 (1984) (Stevens, J.). Also termed Sony doctrine; substantial noninfringinguse. Cf. PRIMARY PL'RPOSE OR EFFECT. [Cases: Copyrights and Intellectual Property Patents ~259(1).] commercial morality. Collectively, fair practices among competitors. -Commercial espionage is often cited by courts as being below accepted standards ofcommer cial morality. commercial name. See TRADENAME. commercial paper. See PAPER. commercial partnership. See trading partnership under PARTNERSHIP. commercial set. 1. The primary documents covering shipment of goods, usu. including an invoice, bill of 306 commercial signature lading, bill ofexchange, and certificate ofinsurance. 2. The documents required under a letter ofcredit. commercial signature. Trademarks. A trademark (as commonly described). [Cases: Trademarks ~1021.] commercial speech. See SPEECH. commercial surety. See compensated surety under SURETY. commercial tort claim. (1994) A claim arising in tort when the claimant is either (1) an organization, or (2) an individual whose claim arose in the course of the claimant's business or profession, and the claim does not inchlde damages arising out of personal injury or death. UCC 9-102(a)(13). -Typical commercial tort claims are fraud and conversion. commercial-traveler rule. Workers' compensation. The principle that an accident will be treated as occurring during the course of employment ifit was caused by an employee whose job requires travel, and the employee was not on a personal errand. -The commercial-trav eler rule is an exception to the gOing-and-coming rule. Cf. GOING-AND-COMING RULE. [Cases: Workers' Com pensation commercial treaty. See TREATY (1). commercial unit. (1960) A unit of goods that by com mercial usage is a Single whole for purposes of sale and whose division materially impairs its character or value in the relevant market or in use. UCC 2-105(6). Under the UCC, "a commercial unit may be a single article (as a machine) or a set of articles (as a suite of furniture or an assortment of sizes) or a quantity (as a bale, gross, or carload) or any other unit treated in use or in the relevant market as a Single whole." rd. [Cases: Sales 180(1).] commercial use. See USE (1). commettant (kom-iJ-tiJnt), n. 1. An employer. 2. The principal in an agency relationship. comminatorium (kiJ-min-iJ-tor-ee-;)m). [Latin commi nari "threaten"] Hist. A clause often included at the end ofa writ, admonishing the sheriff to be faithful in the writ's execution. commingle, vb. (k;)-ming-gal). (17c) 1. To put together (as funds or property) into one mass, as by mixing together a spouse's separate property with marital or community property, or mixing together the separate property of both spouses. 2. (Of a fidUciary) to mix personal funds with those of a beneficiary or client. -Also spelled comingle. See COMMINGLING. Cf. TRACING. commingling (ka-ming-gling), n. A mixing together; esp., a fiduciary's mixing ofpersonal funds with those of a beneficiary or client. -Commingling is usu. con sidered a breach of the fiduciary relationship. Under the Model Rules of Professional Conduct, a lawyer is pro hibited from commingling personal funds with those ofa client. Commingling also occurs when a spouse has mixed his or her separate property with community property to such an extent that they cannot be sepa rated. Also spelled comingling. commissary (kom-i-ser-ee), n. (14c) 1. A person who is delegated or commissioned to perform some duty, usu. as a representative of a superior. 2. A general store, esp. on a military base. 3. A lunchroom. -commis sary, adj. commissary court. See COURT. commission, n. (l4c) 1. A warrant or authority, from the government or a court, that empowers the person named to execute official acts <the student received his commission to the U.S. Navy after graduation>. 2. The authority under which a person transacts business for another <the client gave her attorney express com mission to sign the contract>. 3. A body of persons acting under lawful authOrity to perform certain public services <the Federal Communications Com mission>. public-service commission. A commission created by a legislature to regulate public utilities or public-service corporations. [Cases: Public Utilities 0141.] 4. The act of doing or perpetrating (as a crime) <the perpetrator fled to Mexico after commission of the assault>. 5. A fee paid to an agent or employee for a par ticular transaction, usu. as a percentage of the money received from the transaction <a real-estate agent's commission>. Brokers ~39-75; Labor and Employment double commission. A commission obtained by a person acting in dual roles, each of which gener ates a commission, such as a person serving as both executor and trustee in an estate matter. -Double commissions paid without proper authority or disclo sure may raise fidUciary-duty issues. See FIDUCIARY; fiduciary duty under DUTY (2). [Cases: Brokers ~ 67(1); Executors and Administrators 0'495(0.5); Trusts C:::.>316(l).] commissionaire. See AGENT. commission broker. See BROKER. com~ission day. English law. The opening day of the assizes. -On this day the commission that authorizes the judge to act is publicly read. Also written com mission-day. commission del credere (del kred-;)r-ay). (lSc) The com mission received by the seller's agent for guaranteeing a buyer's debt. [Cases: Factors (::;:::'29.] commissioned officer. See OFFICER (2). commissioner. (15c) 1. A person who directs a commis sion; a member ofa commission. 2. The administrative head of an organization, such as a professional sport. 3. See judicial officer (3) under OFFICER. bail commissioner. See BAIL COMMISSIONER. Commissioner for Patents. The chief operating officer of the patents section of the U.S. Patent and Trade mark Office. -The commissioner is appOinted by the Secretary ofCommerce. Commissioner for Trademarks. The chief operating officer ofthe trademarks section of the U.S. Patent and 307 Trademark Office. -The commissioner is appointed by the Secretary ofCommerce. commissioner in bankruptcy. English law. A com missioner who is appointed by the Lord Chancellor and empowered to proceed in corporate-bankruptcy cases. commissioner ofbail. See BAIL COMMISSIONER. commissioner of circuit court. A court-appointed officer who helps the circuit and district courts by performing judicial and ministerial functions. Court Commissioners (:::::: 1.] commissiotler ofdeeds. An officer authorized by a state to take acknowledgments of deeds and other papers while residing in another state. -The acknowledg ments are recognized in the state that licensed the commissioner. Cf. NOTARY PUBLlC. [Cases: Acknowl edgment commissioner ofhighways. A public officer responsible for overseeing the construction, alteration, and repair ofhighways. (Cases: Highways (::::::93.] commissioner ofpartition. An equity-court-appointed officer who is empowered to examine a request for partition and recommend an action to the court, or to make the partition and report the act to the court. Commissioner of Patents and Trademarks. See DIRECTOR OF THE UNITED STATES PATENT AND TRADEMARK OFFICE. commissioner ofwoods andforests. Hist. An officer who, by an 1817 Act ofPariiament, assumed the juris diction of the Chief Justice of the Forest. county commissioner. A county officer charged usu. with the management ofthe county's financial affairs, its police regulations, and its corporate business. Also termed county supervisor. (Cases: Counties 38.] court commissioner. An officer appointed by the court esp. to hear and report facts, or to conduct judicial sales. [Cases: Court Commissioners jury commissioner. An officer responsible for drawing and summoning the panels of potential jurors in a given county. [Cases: Jury~59.1 public commissioner. See PROSECUTOR (1). town commissioner. A member ofthe board ofadmin istrative officers charged with managing the town's business. [Cases: Towns~26.1 United States Commissioner. Hist. A judicial officer appointed by a u.s. district court to hear a variety of pretrial matters in criminal cases. -Commission ers' duties have been transferred to U.S. Magistrate Judges. Cf. UNITED STATES MAGISTRATE JUDGE. commissioner's court. See COURT. commission government. A type of municipal govern ment in which the legislative power is in the hands of a few people. commission merchant. See FACTOR (2). Commission of Oyer and Terminer commission ofappraisement and sale. Maritime law. A court order requiring the sale ofproperty in an in-rem admiralty action. [Cases: Admiralty~99.] commission of assize. Hist. A royal authorization empowering a person to hold court and try cases arising while the justices in eyre held court elsewhere. Cf. EYRE. "[Bloth the presentment of crimes and the conduct of trials by assize or jury which rapidly became a common feature of royal justice required the presence of twelve or more men from the vicinity where

by assize or jury which rapidly became a common feature of royal justice required the presence of twelve or more men from the vicinity where the matter in question occurred.... The means of achieving this reconciliation was the frequent issue of commissions to perform judicial functions in the country .... [A)ssize commissioners had original jurisdiction to hear a case from beginning to end .... But the assizes. though moulded into a regular routine, never became a distinct 'court' in the permanent sense. The jurisdiction of the judges rested entirely on the commissions which issued for each circuit: the judges could therefore be regularly interchanged, and after 1340 it was quite normal for a Common Plea case to be tried at nisi prius by a King's Bench judge, and vice versa." J.H. Baker, An Introduction to English Legal History 67 (3d ed. 1990). commission ofcharitable uses. Hist. An authorization issuing out of the Court of Chancery to a bishop or other person authorizing the appointee to investigate allegations offraud or other disputed matters concern ing charitable land grants. commission ofdelegates. Hist. A commission appoint ing a person (usu. a lord, bishop, or judge) to sit with several other appointees to hear an appeal ofan eccle siastical judgment in the Court of Chancery. -This commission was abolished in 1832, and its functions transferred to the Judicial Committee of the Privy Council. Commission ofFine Arts. An independent federal com mission that advises the President, Congress, and gov ernmental agencies on the design of public buildings, memorials, and parks in the nation's capital so as to complement historic structures and districts. -The commission was created in 19lO. Commission of Gaol Delivery. Hist. A royal appoint ment authorizing a judge to go on the assize circuit and hear all criminal cases of those held in county jails. See JAIL DELIVERY. Cf. COMMISSION OF OYER AND TERMINER. commission oflieutenancy. Hist. A commission issued to send officers into every county to establish military order over the inhabitants. _ 'Ibis commission super seded the former commission ofarray, which provided the same powers. The commissions became obsolete with the establishment ofthe militia system. commission oflunacy. See DE LUNATICO INQUIRENDO. Commission ofOyer and Terminer (oY-dr an[d] t~r-md ndr). [Law French oyer et terminer "to hear and deter mine"] Hist. A royal appointment authorizing a judge (often a serjeant-at-law) to go on the assize circuit and hear felony and treason cases. Cf. COMMISSION OF GAOL DELIVERY; COURT OF OYER AND TERMINER. "[UJnder the commission of Oyer and Terminer, as the judges are directed to inquire as well as to hear and determine the same, they can only proceed upon an indict ment found at the same assize, and before themselves; for they must first inquire by means of the grand jury or inquest, before they are empowered to hear and determine by the intervention of the petit jury." 1 Joseph Chitty, A Practical Treatise on the Criminal Law 142 (2d ed. 1826). commission ofpartition. An authorization appointing a person to sit with several other appointees for the purpose of dividing land held by tenants in common who desire a partition. [Cases: Partition commission ofrebellion. Hisi. An attaching process that empowered a layperson to arrest and bring a defendant to Chancery to enforce obedience to a writ ofsubpoena or decree . The commission of rebellion was abolished in 1841. -Also termed writ of rebellion; commissio rebellionis; breve rebellion is. "Commission of rebellion (Commissio rebellionis) is other wise called a writte of rebellion, (breve reiJellionis) and it hath use, when a man after proclamation made by the Shyreeve upon an order of the channcerie, or court of Starre chamber, under penaltie of his allegance, to present himselfe to the court by a certaine day, appeareth not. And this commission is directed by way of command to certain persons, to this end, that they ... apprehend, or cause to be apprehended, the party as a rebell and contemner of the kings lawes." John Cowell, The Interpreter (1607). commission of review. Hist. In England, an authoriza tion sometimes granted in an extraordinary case to review a judgment of the Court of Delegates. The commission of review is no longer used because the Privy Council was substituted for the Court of Del egates as the appellate court in ecclesiastical cases in 1832. See COURT OF DELEGATES. commission of the peace. Hist. An appointment of a person to keep the peace (Le., provide police protec tion) on a 10calleveI. Over time the recipients of these commissions began to acquire judicial responsibilities, and became known as justices ofthe peace. commission of unlivery (.:m-liv-..r-ee). Hist. A court order requiring the unloading ofgoods from a ship so that they may be appraised. Commission on Civil Rights. See UNITED STATES COM MISSION ON CIVIL RIGHTS. commission plan. (1919) A form of municipal govern ment whereby both legislative and executive power is vested in a small group of elected officials . Today, commission plans are used in a few cities. [Cases: Municipal Corporations commission to examine a witness. A judicial commis sion directing that a witness beyond the court's terri torial jurisdiction be deposed. -The commission usu. identifies the person to be deposed, when and where the deposition will be taken, and any other information that will help the commissioner to perform. -Also termed commission to take a deposition; commission to take testimony. Cf. LETTER OF REQUEST. [Cases: Pretrial Procedure C=::,66, 96, commission to take a deposition. See COMMISSION TO EXAMINE A WITNESS. commission to take testimony. See COMMISSION TO EXAMINE A WITNESS. commissio rebellion is. See COMMISSION OF REBELLION. commissive waste. See WASTE (1). commissoria lex. See LEX COMMISSORIA. commit, vb. 1. To perpetrate (a crime). 2. To send (a person) to prison or to a mental health facility, esp. by court order. 3. Parliamentary law. REFER. commitment, n. (14c) 1. An agreement to do something in the future. esp. to assume a financial obligation <the shipper made a firm commitment to deliver the goods>. 2. The act ofentrusting or giving in charge <commit ment of money to the bank>. 3. The act ofconfining a person in a prison, mental hospital, or other institution <commitment of the felon to prison>. [Cases: Mental Health C=31-37; Sentencing and Punishment (;:::462, 463.]4. The order directing an officer to take a person to a penal or mental institution; MITTIMUS (1) <the judge signed the commitment after ruling that it was in the best interest ofthe troubled teen>. civil commitment. See CIVIL COMMITTMENT (1). diagnostic commitment. Pretrial or presentencing con finement of an individual, usu. to determine the indi vidual's competency to stand trial or to determine the appropriate sentence to be rendered. [Cases: Mental Health C=434.] discretionary commitment. A commitment that a judge mayor may not grant, depending on whether the government has proved usu. by clear and con vincing evidence -that the commitment is necessary for the well-being of the defendant or society (as when the defendant is insane and dangerous) . Most states allow discretionary commitment. mandatory commitment. (1985) An automatically required commitment for a defendant found not guilty by reason of insanity. -'TIlis type of com mitment is required under federal law, but in minority ofstates. [Cases: Mental Health new court commitment. The confinement in prison ofa person who is being admitted on a new conviction that is, someone who is not being returned to prison for a parole violation. voluntary commitment. A commitment of a person who is ill, incompetent, drug-addicted, or the like, upon the request or with the consent of the person being committed. commitment document. An order remanding a defen dant to prison in order to carry out a judgment and sentence. commitment fee. An amount paid to a lender by a poten tial borrower for the lender's promise to lend money at a stipulated rate and within a speCified time . Com mitment fees are common in real estate transactions. See LOAN COMMITMENT. commitment letter. 1. A lender's written offer to grant a mortgage loan. -The letter generally outlines the loan 309 amount, the interest rate, and other terms. -Also termed letter ofcommitment. [Cases: Mortgages C= 211.] 2. LETTER OF INTENT. commitment warrant. See warrant of commitment under WARRANT (1). committee. 1. (k;J-mit-ee). A subordinate group to which a deliberative assembly or other organization refers business for consideration, investigation, oversight, or action <the bill was sent to legislative committee>. "One of the outstanding characteristics of membership organizations the world over is the powerful role played by committees in setting policy and in carrying out their objectives. The Congress, state legislatures, business associations, and countless clubs and societies have tra ditionally conducted their work through committees of their members." Lewis Deschler, Deschler's Rules ofOrder 103, at 189 (1976). ad hoc committee. See special committee. arrangements committee. A committee charged with organizing the physical space in which a deliberative assembly meets. audit committee. A committee appointed by the board ofan organization, esp. a corporation, to oversee the financial reporting process, select an independent auditor, and receive the audit . Ideally, a committee member is financially literate and wholly indepen dent, having no financial interest (direct or indirect) in the company, no executive position, and no familial relationship with any member ofthe company's man agement or a major shareholder. [Cases: Corporations C=320(5).] committee of one. A committee with only one member. committee ofthe whole. A special committee that com prises all the deliberative assembly's members who are present. A deliberative assembly may resolve itself into a committee ofthe whole so that it can take advantage of the greater procedural flexibility that a committee enjoys, usu. presided over by some chair other than the assembly's regular chair. Cf. quasi com mittee ofthe whole. [Cases: States C=32.] committee on conference. See conference committee. committee with full power. See committee with power. committee with power. A committee to whom the referring body has delegated the necessary authority for acting on the business referred, usu. without need for a prior report to the referring body. -Also termed committee with full power. conference committee. A joint meeting of two legisla tive committees, one from each house ofa bicameral legislature, usu. charged with adjusting differences in a bill passed by both houses in different versions. Also termed committee on conference. See CONFER ENCE (2). [Cases: States C=34.] "A committee on conference from each of the two houses meeting together is not a joint committee but a joint meeting of two committees. The quorum of a committee on conference is a majority of the members of each com mittee. In voting in a conference committee, the committee committee of each house votes separately. The committee on confer ence from each house submits its report to the house from which it was appointed. The report, upon being received, may be treated like other reports, except that the report of a conference committee is usually given a higher pre cedence. Under no condition, including suspension of the rules, may the house alter or amend the report of the com mittee, but must adopt or refuse to adopt the report in the form submitted." National Conference of State Legislatures, Mason's Manual of Legislative Procedure 770, at 558-59 (2000). congressional committee. A committee ofthe House of Representatives, a committee of the Senate, or a joint committee. [Cases: United States C=23.] credentials committee. A committee charged with preparing a roster of delegates entitled to be seated, examining contested claims to such entitlement, and preparing and issuing credentials to the delegates who appear so entitled. See CREDENTIAL. executive committee. The committee of principal officers and directors who directly manage an orga nization's affairs between board meetings. [Cases: Corporations C=299.] joint committee. A legislative committee composed of members ofboth houses ofa legislature. legislative committee. A group oflegislators appointed to help a legislature conduct its business, esp. by pro viding careful consideration of proposals for new legislation within a particular field so that the entire body can handle its work efficiently without wasting time and effort on unmeritorious submissions. [Cases: States C=34.] membership committee. A committee charged with recruiting and keeping members and getting them involved. nominating committee. A committee charged with identifying (and perhaps recruiting) and recommend ing a suitable candidate or candidates for election by a deliberative assembly. -Also termed screening com mittee. [Cases: Elections C=134.] ordinary committee. A committee other than a com mittee of the whole. parent committee. A committee that refers business to a subcommittee . The parent committee is so called only when considered in relation to the subcommit tee. See subcommittee. permanent committee. See standing committee. platform committee. A committee charged with developing a comprehensive statement of an orga nization's, usu. a political party's, public policies and principles. program committee. The committee

a nization's, usu. a political party's, public policies and principles. program committee. The committee that .olans a con vention's program, usu. including both its formal business and its educational and social events. quasi committee of the whole. A committee of the whole over which the deliberative assembly's regular chair presides. reference committee. See resolutions committee. resolutions committee. A committee charged with screening the original main motions offered for a convention's consideration. -Also termed reference committee; screening committee. [Cases: Elections (:::::J 132.] rules committee. A committee charged with drafting rules and an agenda for the orderly conduct ofa delib erative assembly's business, particularly that ofa leg islative body or a convention. screening committee. 1. See nominating committee. 2. See resolutions committee. search committee. A committee charged with finding a suitable choice from several options, such as candi dates for employment or places for a meeting. select committee. See special committee. special committee. A committee established for a par ticular purpose or a limited time. A legislature will ordinarily establish a special committee for a nonlegislative purpose, such as writing memorials, procuring chaplains, determining the qualifications of members, and settling election disputes. -Also termed ad hoc committee; select committee; temporary committee. [Cases: States (:::::J34.] standing committee. A committee that is established for ongoing business, that continues to exist from session to session, and that is usu. charged with considering business of a certain recurring kind. A legislature will ordinarily establish a standing committee con cerned with a specific field oflegislation. A legislative standing committee usu. considers basic questions of legislative policy, holds hearings on legislation, elimi nates unwanted bills, and prepares favored measures for passage. -Also termed permanent committee. [Cases: United States (:::::J23.] subcommittee. A group within a committee to which the committee may refer business, standing in the same relation to its parent committee as the com mittee stands to the deliberative assembly. See parent committee. tellers committee. A committee that helps the chair administer an election or other vote by handing out and picking up ballots if necessary, counting the votes or canvassing the ballots, and reporting the result to the chair for announcement. See CANVASS (2). temporary committee. See special committee. 2. (k;:lm-i-tee) A person who is civilly committed, usu. to a psychiatric hospital <the board determined that the committee was dangerous and should not be released>. [Cases: Mental Health (:::::J 36.] 3. (bm-i-tee) The guardian for the person so committed <the patient's lawyer objected to the appointment ofthe committee>. [Cases: Mental Health (:::::J 116.] committee amendment. See AMENDMENT (3). committee jurisdiction. See CHARGE (8). committee report. See REPORT (1). committee substitute. See clean bill under BILL (3). committing magistrate. See MAGISTRATE. committitur (b-mit-;:l-t;:lr). [Latin "he is committed"] Archaic. An order or minute stating that the person named in it is to be committed to the custody of the sheriff. committitur piece. Hist. An instrument used to civilly charge a debtor already in prison, esp. by the plaintiff who had brought about the debtor's imprisonment . The committitur piece was rendered obsolete by the 1869 Debtors Act, which abolished imprisonment for debt. commixtio (b-miks-tee-oh), n. [Latin "mixture"] Roman law. A mixture of separable (Le. dry or solid) items belonging to different owners, the resulting mixture being held in common or divided in pro portion to the shares contributed. See CONFUSION OF GOODS. Cf. CONFUSIO (1). commodatary (k;:l-mohd-;:l-tair-ee). [fro Latin commoda tarius] Roman & civil law. A bailee in a commodatum; borrower. commodate (kom-;:l-dayt), n. See COMMODATUM. commodati actio (kom-;:l-day-tI ak-shee-oh). See actio commodati under ACTIO. commodator (kom-;:l-day-t;:lr), n. Roman & civil law. A lender or bailor. commodatum (kom-;:l-day-t;:lm), n. (17c) [Latin com modare "to lend"] Roman & civil law. The gratuitous lending ofgoods to be used by the borrower and then returned undamaged to the lender . This arrangement is for the sole benefit of the borrower. It is one of three types of contracts for permissive use, the other two being locatio conductio and mutuum. -Also termed accommodatum; commodate. PI. commodata. "Commodatum was loan for use, the borrower being required to return the identical res. This contract was gratuitous, being usually for a limited time and a specific purpose. The borrower must use the greatest care in looking after the res but has not to answer for loss occa sioned by fire or accident beyond his control, provided that there was no fault. If, however, the res was put to a use foreign to the terms of the agreement, strict liability might follow, e.g., if the res was wrongfully taken on a journey and lost through attack by enemies or shipwreck." G.w. Paton, Bailment in the Common Law49-50 (1952). commodity. 1. An article of trade or commerce . The term embraces only tangible goods, such as products or merchandise, as distinguished from services. 2. An economic good, esp. a raw material or an agricultural product. [Cases: Commodity Futures Trading Regula tion (:::::J 7.] commodity-backed bond. See BOND (3). Commodity Credit Corporation. A federally chartered corporation responsible for extending credit in order to stabilize farm income and prices . Incorporated in Delaware in 1933 and operated in affiliation with the Reconstruction Finance Corporation, it was transferred to the U.S. Department of Agriculture in 1939 and chartered in 1948 as a federal corporation. 15 USCA 714. -Abbr. CCc. [Cases: Agriculture (:::::J3.5(l).] 311 Commodity Futures Trading Commission. A five member federal commission that regulates trading in futures and options contracts and monitors the activi ties of commodity-exchange members, brokerage houses, commission-registered salespeople, and others associated with the industry . The commission began operating in April 1975. 7 USCA 2(a)(2). -Abbr. CFTC. [Cases: Commodity Futures Trading Regula tion (;-51-61.] commodity loan. See LOAN. commodity option. See OPTION. commodity paper. See PAPER. common, n: 1. A legal right to use another person's property, such as an easement. See PROFIT A PRENDRE. common appendant (;}-pen-dant). Hist. A tenant's right to graze animals on the landowner's land as a result oflongstanding practice. See profit appendant under PROFIT "The ... common appendant is founded on prescription, and is regularly annexed to arable land .... The tenant was limited to such beasts as were levant and couchant on his estate, because such cattle only were wanting to plough and manure his land. It was deemed an incident to a grant of land, as of common right, and to enable the tenant to use his plough land." 3 James Kent, Commentar ies on American Law *404 (George Comstock ed., 11th ed. 1866). common appurtenant (;J-par-t;}-n;}nt). Hist. A land owner's right to graze animals on another's land as a result of a written grant relating to the ownership or occupancy ofland. See profit appurtenant under PROFIT (2). "Common appurtenant may be affixed to any kind of land. It allowed the owner to put in other beasts than such as plough or manure the land; and, not being founded on necessity, like the other rights, ... was not favored in the law." 3 James Kent, Commentaries on American Law *404 (George Comstock ed., 11th ed. 1866). common in gross. Hist. A right to graze animals on another's land as a result of a written grant unrelated to ownership or occupancy of land. -Also termed common at large. See profit in gross under PROFIT (2). common in the soil. Hist. The right to dig and take away earth from another's land. -Also termed common ofdigging. common ofestovers (e-stoh-v;}rz). Hist. A tenant's right to take necessary supplies, esp. wood, from the lord's estate; the right to estovers. See ESTOVERS (1). common offishery. See common ofpiscary. common ofpasture. Hist. A right to pasture one's cattle on another's land . The common ofpasture may be appendant, appurtenant, or in gross. common ofpiscary (pis-k;}-ree). Hist. A right to fish in waters on another's land. -Often shortened to piscary. Also termed common offishery. common ofshack. Hist. The right ofpeople occupying land in a common field to release their cattle to graze after harvest. common-authority rule common ofturbary (t~r-ba-ree). Hist. The right to dig turf (for use as fuel in a house) from another's land. common without stint. flist. A right to graze an unlim" ited number ofcattle. 2. A tract ofland set aside for the general public's use. [Cases: Common Lands 01.] commonable, adj. (17c) 1. (Of an animal) allowed to graze on common land. 2. (Ofland) capable of being held in common. common adventure. See ADVENTURE. common agent. See AGENT (2). commonality test. The requirement that members of a group certified as a class in a class-action suit share at least one issue oflaw or fact whose resolution will affect all or a Significant number of the putative class members. Cf. COMMON-CHARACTER REQUIREMENT. [Cases: Federal Civil Procedure 0165; Parties 35.17,35.61-35.89.] common ancestor. See ANCESTOR. common and notorious thief. See common thief under THIEF. common appendant. See COMMON. common appurtenant. See COMMON. common area. 1. Landlord-tenant law. The realty that all tenants may use though the landlord retains control over and responsibility for it. [Cases: Landlord and Tenant 123.] 2. An area owned and used in common by the residents of a condominium, subdi vision, or planned-unit development. Also termed common elements. [Cases: Common Lands Con dominium 06.] common-area maintenance charges. Fees paid by tenants, usu. on a pro rata basis, to compensate the landlord for the costs of operating, repairing, and maintaining common areas. Such costs include those incurred for cleaning, lighting, and repairs. - Abbr. CAMs. -Also termed common-area operating expenses. common-area operating expenses. See COMMON-AREA MAINTENANCE CHARGES. common assault. 1. See ASSAULT (1).2. See ASSAULT (2). common assumpsit. See general assumpsit under ASSUMPSIT. common assurance. See MUNIMENT OF TITLE. common at large. See common in gross under COMMON. common-authority rule. The principle that a person may consent to a police officer's search of another person's property ifboth persons use, control. or have access to the property . Under this rule, the consenting person must have been legally able to permit the search in his or her own right, and the defendant must have assumed the risk that a fellow occupant might permit a search. See U.S. v. Matlock, 415 U.S. 164, 171 n.7, 94 S.Ct. 988, 993 n.7 (1974). See THIRD-PARTY CONSENT. [Cases: Searches and Seizures 0173.1.] common bail. See bail common under BAIL (4). common bar. See BLANK BAR. Common Bench. Hist. The former name of the English Court of Common Pleas. The court was so called because it was the forum for the common people, that is, for cases between two or more subjects when the Crown had no interest. -Abbr. C.B. common-bond doctrine. The rule that prospective members ofa credit union must share some connection (such as common employment) other than a desire to create a credit union. [Cases: Building and Loan Asso ciations ~6.] common business purpose. Related activity by two or more associated businesses . Ifone of the businesses comes within the jurisdiction of the Fair Labor Stan dards Act, then another business that shares a common business purpose will also. common calling. 1. An ordinary occupation that a citizen has a right to pursue under the Privileges and Immunities Clause. [Cases: Constitutional Law ~ 2953.] 2. A commercial enterprise that offers services to the general public, with a legal duty to serve anyone who requests the services . For example, an innkeeper or a common carrier engages in a common calling. "It was only in a very few cases indeed that a person was under a legal obligation to enter into a contract; virtually the only example of such an obligation in fact was the person exercising a 'common calling' such as the innkeeper and the common carrier who were (subject to certain safe guards) legally bound to contract with any member of the public who

and the common carrier who were (subject to certain safe guards) legally bound to contract with any member of the public who required their services." P.S. Atiyah, An Introduc tion to the Law of Contract 8 (3d ed. 1981). common carrier. See CARRIER. common cause. See common plea (1) under PLEA (3). common-character requirement. (1997) The rule that for a group of persons to qualify as a class in a class action lawsuit, the appointment of the class must achieve economies of time, effort, and expense, and must promote uniformity ofdecision for persons simi larly situated, in addition to sharing common questions offact and law. Cf. COMMONALITY TEST. [Cases: Parties ~35.17.] common chase. See CHASE. common cost. See indirect cost under COST (1). common council. See COUNCIL. common count. See COUNT. common day. See DAY. common debtor. See DEBTOR. common-defeasance bond. See penal bond under BOND (2). common descriptive name. See GENERIC NAME. common design. (17c) 1. The intention by two or more people to join in committing an unlawful act. [Cases: Criminal Law ~59(4).] 2. An intention to commit more than one crime. 3. The general design or layout ofplots ofland surrounding a particular tract. -Also termed common scheme; common plan. See ZONING. common diligence. See due diligence (1) and ordinary diligence under DILIGENCE (2). common disaster. (1878) An event that causes two or more persons with related property interests (such as an insured and the beneficiary) to die at very nearly the same time, with no way ofdetermining who died first. See UNIFORM SIMULTANEOUS DEATH ACT; COMMORI ENTES. [Cases: Death ~5; Insurance ~3485.] common-disaster clause. (1949) A provision in a dis positive instrument, such as an insurance policy or a will, that seeks to cover the situation in which the trans feror and transferee die in a common disaster. [Cases: Insurance ~3485; Wills ~543.] common duty ofcare. (1887) A landowner's obligation to take reasonable care under the circumstances to see that a lawful visitor will be reasonably safe in using the premises for the purposes for which the visitor is permitted to be there. common easement. See EASEMENT. common elements. See COMMON AREA (2). common-employment doctrine. See FELLOW-SERVANT RULE. common-enemy doctrine. (1905) Property. The rule that a landowner may repel surface waters as neces sary (as during a flood), without having to consider the consequences to other landowners . The doctrine takes its name from the idea that the floodwater is every landowner's common enemy. [Cases: Waters and Water Courses ~116-119.] common enterprise. See JOINT ENTERPRISE. commoner. (17c) 1. ErE. An ordinary citizen; one not a peer. 2. Archaic. A member ofthe House ofCommons. 3. Archaic. A common lawyer. 4. Archaic. A person having a right ofcommon -that is, a right to pasture on a lord's land. 5. A person who shares a right in common. common error. (1897) Copyright. A mistake found both in a copyrighted work and in an allegedly infringing work, the mistake being persuasive evidence of unau thorized copying. [Cases: Copyrights and Intellectual Property ~83(3.1).] common external tariff. See TARIFF (2). common fine. See FINE (4). common fishery. See FISHERY (2). common-fund doctrine. The principle that a litigant who creates, discovers, increases, or preserves a fund to which others also have a claim is entitled to recover litigation costs and attorney's fees from that fund. Also termed equitable-fund doctrine. [Cases: Attorney and Client ~155.] common gambler. 1. One who owns or is employed by a gambling establishment; a bookmaker. 2. A profes sional gambler. A person who gambles but not cus tomarily, habitually, or frequently, and who does not rely on gambling for a liVing, is considered a casual 313 gambler, not a common gambler. [Cases: Gaming 78.] common heritage of mankind. Int' flaw. The parts of the earth and cosmos that can be said to belong to all humanity, without regard for geographic location, and that should be protected and administered for its benefit. -The term embraces the ocean floor and its subsoil, and outer space. Also termed common heritage ofhumankind. common highway. See HIGHWAY. common informer. (18c) A person who sues to recover a penalty in a penal action. _ In some jurisdictions, such an action may be instituted either by the attorney general on behalf ofthe state or by a common informer. See INFORMER; penal action under ACTION (4). common in gross. See COMMON. common intendment. See INTENDMENT. common-interest doctrine. See joint-defense privilege under PRIVILEGE b). common-interest exception. See jOint-defense privilege under PRIVILEGE (3). common-interest privilege. See jOint-defense privilege under PRIVILEGE (3). common in the soil. See COMMON. common jury. See petit jury under JURY. common knowledge. (I7c) A fact that is so widely known that a court may accept it as true without proof. See JUDICIAL NOTICE. [Cases: Criminal Law 304; Evidence (;:::>5.] common-knowledge exception. (1929) The principle that lay testimony concerning routine or simple medical procedures is admissible to establish negligence in a medical-malpractice action. _ This is a narrow excep tion in some jurisdictions to the rule that a medical malpractice plaintiff must present expert testimony to establish negligence. (Cases: Health C'::)821(4).j common law, n. [fro Law French commen ley "common law"] (14c) 1. The body oflaw derived from judicial decisions, rather than from statutes or constitutions; CASELAW <federal common law>. Cf. STATUTORY LAW. [Cases: Common Law "Historically, [the common law] is made quite differently from the Continental code. The code precedes judg ments; the common law follows them. The code articu lates in chapters, sections, and paragraphs the rules in accordance with which judgments are given. The common law on the other hand is inarticulate until it is expressed in ajudgment. Where the code governs, it is the judge's duty to ascertain the law from the words which the code uses. Where the common law governs, the judge, in what is now the forgotten past, decided the case in accordance with morality and custom and later judges followed his decision. They did not do so by construing the words of his judgment. They looked for the reason which had made him decide the case the way he did, the ratio decidendi as it came to be called. Thus it was the principle of the case, not the words, which went into the common law. So historically the common law is much less fettering than a code." Patrick Devlin, The Judge 177 (1979). common law federal common law. (1855) The body of decisional law derived from federal courts when adjudicating federal questions and other matters offederal concern, such as disputes between the states and foreign relations, but excluding all cases governed by state law. _ An example is the nonstatutory law applying to inter state streams ofcommerce. [Cases: Federal Courts <>:;374.] "Notwithstanding Erie, the federal common law still lives in a number of areas. In some, such as admiralty, ... the power to create common law has been inferred from a constitutional or statutory grant ofjurisdiction, where a federal common law has appeared necessary to accomplish the purposes of the grant. In other cases, on more or less persuasive evidence, the [Supreme] Court has inferred implicit damage remedies on behalf of injured parties from federal statutes imposing duties for their protection, or has found an implicit congressional delegation of authority to make common law, as in actions on collective-bargaining agreements affecting commerce under the Taft-Hartley Act, 301." David P. Currie, Federa/jurisdiction in a Nutshell 226 (3d ed. 1990). generalfederal common law. (1890) Hist. In the period before Erie v. Tompkins (304 U.S. 64, 58 S.Ct. 817 (1938, the judge-made law developed by federal courts in deciding disputes in diversity-of-citizenship cases. -Since Erie, a federal court has been bound to apply the substantive law of the state in which it sits. So even though there is a "federal common law," there is no longer a general federal common law applicable to all disputes heard in federal court. (Cases: Federal Courts ~373, 374.] 2. The body of law based on the English legal system, as distinct from a civil-law system; the general Anglo American system of legal concepts, together with the techniques of applying them, that form the basis ofthe law in jurisdictions where the system applies <all states except Louisiana have the common law as their legal system>. Cf. CIVIL LAW (1). American common law. 1. The body of English law that was adopted as the law ofthe American colonies and supplemented with local enactments and judg ments. 2. The body ofjudge -made law that developed during and after the United States' colonial period, esp. since independence. Also termed AnglO-Amer ican common law. [Cases: Common Law (;:::>1.] "Every country has its common law. Ours is composed partly of the common law of England and partly of our own usages. When our ancestors emigrated from England, they took with them such of the English principles as were convenient for the situation in which they were about to place themselves. It required time and experience to ascer tain how much of the English law would be SUitable to this country. By degrees, as circumstances demanded, we adopted the English usages, or substituted others better suited to our wants, until at length, before the time of the Revolution, we had formed a system of our own, founded in general on the English Constitution, but not without considerable variations." Guardians of the Poor v. Greene, 5 Binn. 554, 557 (Pa. 1813). 3. General law common to the country as a whole, as opposed to special law that has only local application <the issue is whether the common law trumps our juris diction's local rules>. Also termed jus commune. 314 common-law action "In its historical origin the term common law (jus commune) was identical in meaning with the term general law .... The jus commune was the general law of the land -the lex terrae -as opposed to jus speciale. Bya process of historical development, however, the common law has now become, not the entire general law, but only the residue of that law after deducting equity and statute law. It is no longer possible, therefore, to use the expression common law and general law as synonymous." John Salmond, Juris prudence 97 (Glanville L. Williams ed., 10th ed. 1947). "[Ilt is necessary to dispose briefly of a problem of nomen clature. European equivalents of the expression 'common law' have been used, especially in Germany, to describe an emergent system of national law, based on the Roman model, that came into existence before national parlia ments undertook to enact laws for the nation as a whole. In this use, 'the common law' (gemeines Recht) was used to distinguish the commonly shared tradition of Roman law from local statutes and customs." Lon L. Fuller, Anatomy of the Law 133 (1968). 4. The body oflaw deriving from law courts as opposed to those sitting in equity <a mortgage founded in common law>. The common law of England was one of the three main historical sources of English law. The other two were legislation and equity. The common law evolved from custom and was the body oflaw created by and administered by the king's courts. Equity developed to overcome the occasional rigidity and unfairness ofthe common law. Originally the king himself granted or denied petitions in equity; later the task fell to the chancellor, and later still to the Court of Chancery. common-law action. See ACTION (4). common-law assignment. See ASSIGNMENT (2). common-law bond. See BOND (2). common-law cheat. See CHEATING. common-law contempt. See criminal contempt under CONTEMPT. common-law copyright. See COPYRIGHT. common-law corporation. See corporation by prescrip tion under CORPORATION. common-law crime. See CRIME. common-law dedication. See DEDICATION. common-law extortion. See EXTORTION (1). common-law fraud. See promissory fraud under FRAUD. common-law husband. See HUSBAND. common-law jurisdiction. See JURISDICTION. common-law lawyer. (19c) A lawyer who is versed in or practices under a common-law system. -Also termed common lawyer (16c). common-law lien. See LIEN. common-law malice. See actual malice (2) under MALICE. common-law marriage. See MARRIAGE (1). common-law mortgage. See deed oftrust under DEED. common-law pleading. See PLEADING (2). common-law-property state. See COMMON-LAW STATE (2). common-law rule. (17c) 1. A judge-made rule as opposed

W STATE (2). common-law rule. (17c) 1. A judge-made rule as opposed to a statutory one. [Cases: Common Law (;=> 1.] 2. A legal as opposed to an equitable rule. 3. A general rule as opposed to one deriving from special law (such as a local custom or a rule of foreign law that, based on choice-of-Iaw principles, is applied in place ofdomestic law). 4. An old rule ofEnglish law. common-law seal. See SEAL (1). common-law specialty. See contract under seal under CONTRACT; SPECIALTY (1). common-law state. (1848) 1. NONCODE STATE. 2. Any state that has not adopted a community-property regime . The chief difference today between a com munity-property state and a common-law state is that in a common-law state, a spouse's interest in property held by the other spouse does not vest until (1) a divorce action has been filed, or (2) the other spouse has died. Cf. COMMUNITY-PROPERTY STATE. common-law trust. See business trust under TRUST (4). common-law wife. See WIFE. common lawyer. See COMMON-LAW LAWYER. common market. See MARKET. Common Market. The European Economic Commu nity. Common Market is a colloquial term -not a formal deSignation. See EUROPEAN UNION. common mistake. See mutual mistake (2) under MISTAKE. common money bond. See BOND (2). common-nucleus-of-operative-fact test. (1966) The doctrine that a federal court will have pendent juris diction over state-law claims that arise from the same facts as the federal claims providing a basis for sub ject-matter jurisdiction . One purpose of this test is to promote judicial economy. [Cases: Federal Courts (;=> 14.1.] "The modern doctrine of pendent jurisdiction, as announced by the Supreme Court in United Mine Workers v. Gibbs (1966), is much broader. ... Pendent jurisdiction, the Court said, existed whenever 'the state and federal claims ... derive from a common nucleus of operative fact,' and when considerations of judicial economy dictate having a single trial." David P. Currie, Federal Jurisdiction in a Nutshell 1 06 (3d ed. 1990). common nuisance. See public nuisance under NUI SANCE. common occupant. See general occupant under occu PANT. common of digging. See common in the soil under COMMON. common ofestovers. See COMMON. common of fishery. See common of piscary under COMMON. common ofpasture. See COMMON. common ofpiscary. See COMMON. 315 common of shack. See COMMON. common ofturbary. See COMMON. common order. See conditional judgment under JUDG MENT. common parliamentary law. See PARLIAMENTARY LAW. common plan. See COMMON DESIGN. common plea. See PLEA (3). Common Pleas, Court of. See COURT OF COMMON PLEAS. common property. See PROPERTY. common recovery. Hist. An elaborate proceeding, full oflegal fictions, by which a tenant in tail disentailed a fee-tail estate . The action facilitated land transfer by allowing a potential transferee who was barred by law from receiving land to "recover" the land by suing the actual owner. Common recoveries, which were abolished early in the 19th century, were orig inally concocted by the clergy as a way to avoid the land-conveyance restrictions imposed by mortmain acts. -Also termed feigned recovery. See MORTMAIN STATUTE. Cf. CESSIO IN J"GREj praecipe quod reddat under PRAECIPE. "Here's how [the common recoveryl worked. S, with the connivance of A, would bring a real action against A claiming falsely that he, B, owned the land and demanding recovery of it. A responded by claiming, just as falsely, that he had acquired the land from C and that C had warranted title to the land. When A demanded of C, also an accom plice of A, that he defend the title, C admitted falsely that he had, indeed, warranted the title. C allowed B to take a default judgment against A for the recovery of the land, and allowed A to obtain a default judgment against himself, C, for the recovery of land of equal value. The result of this fancy feudal footwork was to leave B with title to the land in fee simple and to leave A with his judgment against C. The judgment against C was viewed by the court as an adequate substitute for the entailed land. But when it came time for 0 or A's lineal heirs to enforce the judgment, it would transpire that C had been selected by A because he had no land at all! (Why else would C have played along?) Did the court have any suspicion that A, B, and C were col luding? Of course they did but how else, in the face of De Donis, could they unshackle land from the chains of the fee tail?" Thomas F. Bergin &Paul G. Haskell, Preface to Estates in Land and Future Interests 31-32 (2d ed. 1984). common-return days. See dies communes in banco (1) under DIES. common rule ex parte. Hist. A court-docket entry reflecting that the case would be decided by a majority vote and would proceed even ifa notified party did not appear. See Billington v. Sprague, 22 Me. 34 (1842). common scheme. See COMMON DESIGN. common school. See public school under SCHOOL. common scold. See SCOLD. common serjeant. A judicial officer, appointed by the City of London, who helps the recorder in criminal trials. common-situs picketing. See PICKETING. common-source doctrine. (1938) The principle that a defendant in a trespass-to-try-title action who claims commorant under a source common to both the defendant and the plaintiff may not demonstrate title in a third source that is paramount to the common source because doing so amounts to an attack on the source under which the defendant claims title. [Cases: Trespass to Try Title common stock. See STOCK. common-stock equivalent. A security that is exchange able for common stock, and thus is considered to be the same as common stock . Common-stock equivalents include certain types of convertible securities, stock options, and warrants. common-stock fund. See M"GTUAL FUND. common-stock ratio. The relationship of outstanding common stock to the corporation's total capitaliza tion. The common-stock ratio measures the relative claims ofstockholders to earnings (earnings per share and payout ratio), cash flow (cash flow per share), and equity (book value per share). Cf. PAYOUT RATIO. common substitution. See St:BSTITlJTION (4). common suit. See common plea (1) under PLEA (3). common tenancy. See tenancy in common under TENANCY. common thief. See THIEF. common traverse. See TRAVERSE. common trust fund. See TRUST FUND. common venture. See common adventure under ADVEN TURE. common wall. See party wall under WALL. commonweal (kom-an-weel). The general welfare; the common good. commonwealth. (15c) 1. A nation, state, or other politi cal unit <the Commonwealth ofPennsylvania>. [Cases: States C=>1.] 2. A political unit that has local autonomy but is voluntarily united with the United States <Puerto Rico and the Northern Mariana Islands are common wealths>. Cf. DEPENDENCY (1); INSULAR AREA; TER RITORY (2). 3. A loose association of countries that recognize one sovereign <the British Commonwealth>. In this context, in Great Britain, the term British has been dropped from British Commonwealth; BrE speakers refer simply to the Commonwealth. Abbr. Commw.; comm. 4. The central (federal) power in Aus tralia. -Abbr. (in sense 4) Cwth. commonwealth attorney. A prosecutor in some jurisdic tions, such as Virginia. commonwealth court. See COURT. common without stint. See COMMON. commorancy (kom-a-ran-see). 1. Temporary residency. 2. English law. Permanent residency in a certain place. commorant (kom-a-rant). 1. A person who dwells in a place temporarily. 2. English law. A person who resides permanently in a certain place. 316 commorientes commorientes (ka-mor-ee-en-teez). (18c) [fro Latin com morior "to die together"]l. (pl.) Persons who die at the same time, often of the same cause, such as spouses who die in an accident. [Cases: Death 2. Civil law. The rule establishing presumptions of survivorship for purposes ofsuccession regarding such persons. See simultaneous death under DEATH; UNIFORM SIMULTA NEOUS DEATH ACT. commotion. See CIVIL COMMOTION. commune (kom-yoon), n. (17c) A community ofpeople who share property and responsibilities. commune/orum (k;:l-myoo-nee for-;:lm). [Latin "common place ofjustice"] Hist. The seat ofthe principal English courts, esp. those that do not go on circuit. commune placitum (k;:l-myoo-nee plas-<l-t<lm). [Latin "common plea"] Hist. A common plea between persons, as opposed to a plea of the Crown (Le., a criminal action). PI. communia placito. commune vinculum (ka-myoo-nee ving-kyo-Iam). [Latin "common bond "] Hist. A relationship or tie between persons; esp., the bond between lord and tenant, or the relationship between blood relatives. communia (ka-myoo-nee-a). [Latin] Hist. Things owned in common, such as running water, the air, and the sea. communia placita non tenenda in scaccario (k<l-myoo nee-<l plas-<l-td non ta-nen-d<l in sk<l-kair-ee-oh). [Law Latin "common pleas are not held in the Exchequer"] Hist. A writ directed to the Treasurer and Barons of the Exchequer, forbidding them from holding pleas between common persons, Le., pleas in which the Crown was not a party. communia precepta (k;:l-myoo-nee-<l pree-sep-t;:l). [Latin] Hist. Common precepts; common rules. communibus annis (k;:l-myoo-ni-b;:ls an-is). [Latin] Hist. On the average ofyears; on the annual average. "[TJhe money arising from corn rents communibus annis, almost double to the rents in money." 2 William Blackstone, Commentaries on the Laws ofEngland 322 (1766). communication. (14c) 1. The expression or exchange of information by speech, writing, gestures, or conduct; the process of bringing an idea to another's perception. 2. The information so expressed or exchanged. conditionally privileged communication. (1889) A defamatory statement made in good faith by a person with an interest in a subject to someone who also has an interest in the subject, as an employer giving a negative but accurate job review ofa former employee to a potential future employer. -The privilege may be lost upon a shOWing ofmalice or bad faith. [Cases: Libel and Slander ~40.] confidential communication. (18c) A communica tion made within a certain protected relationship and legally protected from compelled disclosure in a legal proceeding. -Among confidential communica tions are those between husband and wife, attorney and client, and priest and penitent. See PRIVILEGE (3). [Cases: Privileged Communications and Confidenti ality 60, 100,403.] ex parte communication. (1804) A communica tion between counsel and the court when opposing counsel is not present. -Such communications are ordinarily prohibited. Federal Civil Procedure G-~1969; Trial privileged communication. (1809) A communication that is protected by law from compelled disclosure in a legal proceeding, or that cannot be used against the person who made it. - include an infor mant's communication to a government agency and statements made in a legislative session by a legisla tor. See PRIVILEGE (3). [Cases: Privileged Commu nications and Confidentialitv 1, 374; States 28(2).] , communication right. Copyright. The power of a copy right owner to authorize or prohibit the transmission of a work to the public by way of interactive on-demand systems such as the Internet. _ This right is included in the WIPO Copyright Treaty and the European Com mission's Directive on the Information Society. [Cases: Copyrights and Intellectual Property ~36.1 communicative evidence. See testimonial evidence under EVIDENCE. communi consensu (b-myoo-nr k;:ln-sen-s[y]oo). [Latin) By common consent. communi dividundo. See actio de communi dividundo under ACTIO. communings (b-myoo-nings), n. Scots law. Contract negotiations. communio bonorum (kd-myoo-nee-oh b;:l-nor-;:lm). [Latin "community of goods"] Civil law. Commonly owned goods, esp. those held in common by a husband and wife. PI. communiones bonorum. communis error (ka-myoo-nis e-ror). [Latin] Scots law. A common error; esp., a long-standing error in practice that the court would uphold even though the practice has no legal basis. -Also termed communis errorfacet jus. communism. (19c) 1.

has no legal basis. -Also termed communis errorfacet jus. communism. (19c) 1. A political doctrine, based on Marxism, advocating the abolition of capitalism by ground-roots revolution; specif., a social and political doctrine advocating the abolition of private ownership in favor of common ownership ofthe means ofproduc tion and the goods produced, each person contribut ing as able and receiving as needed. Cf. CAPiTALISM. 2. Totalitarian government. communis opinio (k<l-myoo-nis ;:l-pin-ee-oh). [Latin "common opinion"] Hist. A generally accepted belief about a point oflaw. -Ifheld unanimously by those learned in the law, this common belief had the force of law in classical Rome. "Communis opinio is evidence of what the law is, not where it is an opinion merely speculative and theoretical, floating in the minds of persons, but where it has been made the ground-work and substratum of practice." 1 317 Alexander M. Burrill, A Law Dictionary and Glossary 330 (2d ed. 1867) (quoting Lord Ellenborough). communis opinio doctorum (ka-myoo-nis a-pin-ee-oh dok-tor-<lml. [Latin "learned common opinion"] Hist. Scholarly agreement on points ofRoman law, collected by the glossators ofJustinian's texts in the later Middle Ages. communis paries (k<l-myoo-nis par-ee-eez). [Latin "common wall"] Civil law. See party wall under WALL. PI. communes parietes. communis patria (ka-myoo-nis pay-tree-a). [Law Latin] Hist. The cQmmon country; a place deemed home to all. "Under the old diligence of apprising, directed against heri table rights, the messenger executing the diligence held his court in the head borough of the shire where the lands lay, but afterwards it became the practice to hold these courts in Edinburgh as communis patria to all Scotland." John Trayner, Trayner's Latin Maxims 86 (4th ed. 1894). communis scriptura (ka-myoo-nis skrip-t[y]oor-akam myoo-nas-skrip-tyuur-a). [Latin "common writing"] Hist. See CHIROGRAPH. communis stipes (b-myoo-nis str-peez). [Latin "common trunk"] Hist. A common ancestor. communitization (ka-myoo-na-ta-zay-shan), n. Oil & gas. The aggregating of small tracts sufficient for the granting of a well permit under applicable well-spacing rules; POOLING. Cf. UNITIZATION. [Cases: Mines and Minerals C=>92.78.] communitize (ka-myoo-na tIZ), vb. commuuity. (14c) 1. A neighborhood, vicinity, or locality. 2. A society or group of people with similar rights or interests. 3. Joint ownership, possession, or participation. commuuityaccount. See ACCOUNT. community control. A criminal sentence whose terms . include intensive and strict supervision ofan offender in the community, as by restricting the offender's movements and activities and conducting electronic surveillance, and providing severe sanctions for viola tions ofany ofthe sentence's terms. [Cases: Sentencing and Punishment 1800, 1811.J community correctional center. See JAIL. community debt. See DEBT. Community Development Financial Institution Fund. A fund in the U.S. Department ofthe Treasury created to expand available credit, investment capital, and financial services in distressed urban and rural com munities. -Abbr. CDFI Fund. community estate. In a community-property state, the total of the assets and debts making up a married couple's property owned in common. Cf. COMMUNITY PROPERTY. [Cases: Husband and Wife C=>249-260, 268.] community grant. See GRANT. community lease. See LEASE. community property Community mark. See Community trademark under TRADEMARK. community-notification law. See MEGAN'S LAW. community obligation. See OBLIGATION. community of interest. (17c) 1. Participation in a joint venture characterized by shared liability and shared opportunity for profit. See JOINT VENTURE. [Cases: Joint Adventures C=> 1.2(7).] 2. A common grievance that must be shared by all class members to maintain the class action. See CLASS ACTION. [Cases: Federal Civil Procedure 165; Parties C::;)35.17.] 3. Labor law. A criterion used by the National Labor Relations Board in deciding whether a group of employees should be allowed to act as a bargaining unit. The Board considers whether the employees have similar duties, wages, hours, benefits, skills, training, supervision, and working conditions. See BARGAINING UNIT. Labor and Employment C=> 1173.] community ofprofits. The right of partners to share in the partnership's profits. Community patent. See PATENT (J). Community Patent Convention. A 1975 treaty that, for patent purposes, treats the European Union as a single state and allows a patent applicant to obtain patent protection in all European Union nations through a Single blanket filing and examination procedure . Ifthe application is approved, the European Patent Office issues a single Community patent. The treaty's full name is the Convention for the European Patent for the Common Market. community policing. (1969) A law-enforcement tech nique in which police officers are assigned to a particu lar neighborhood or area to develop relationships with the residents for the purpose ofenhancing the chances ofdetecting and thwarting criminal activity. community property. (1820) Assets owned in common by husband and wife as a result of its having been acquired during the marriage by means other than an inheritance or a gift to one spouse, each spouse gen erally holding a one-half interest in the property . Only nine states have community-property systems: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. See marital property under PROPERTY; TITLE DIVISION. Cf. COMMUNITY ESTATE; SEPARATE PROPERTY. Husband and Wife C=>249-260.] quasi-community property. Personal property that, having been acquired in a non-community-prop erty state, would have been community property if acquired in a community-property state . Ifa com munity-property state is the forum for a divorce or administration of a decedent's estate, state law may allow the court to treat quasi-community property as ifit were community property when it determines the spouses' interests. [Cases: Husband and Wife 246,249-260.] 318 community-property state community-property state. (1907) A state in which spouses hold property that is acquired during marriage (other than property acquired by inheritance or indi vidual gift) as community property. See COMMU NITY PROPERTY. Cf. COMMON-LAW STATE (2). [Cases: Husband and Wife community service. Socially valuable work performed without pay . Community service is often required as part of a criminal sentence, esp. one that does not include incarceration. lCases: Sentencing and Punish ment 1982.] Commu~ity trademark. See TRADEMARK. Community Trademark Treaty. A 1996 agreement allowing a trademark registrant to file a single appli cation with the European Trademark Office for trade mark protection in all European Union nations instead offiling a separate application in each country . The trademark registrant does not have to be a citizen ofa member nation to file an application. [Cases: Trade marks C--1236.] community trust. An agency organized to administer funds placed in trust for public-health, educational, and other charitable purposes in perpetuity. commutation (kom-ya-tay-sh;m), n. (15c) L An exchange or replacement. 2. Criminal law. The executive's substi tution in a particular case of a less severe punishment for a more severe one that has already been judicially imposed on the defendant. Cf. PARDON; REPRIEVE. [Cases: Pardon and Parole 28.] Commutation may be based on the discovery of pertinent facts that were not known or available when the sentenced was decided, or that arose and were developed afterward. It may also be based on the executive's statutorily or constitutionally granted discretion, regardless of the facts. Under 1-2.113 ofthe US DOr Manual, commu tation is rarely granted but may be considered for old age, illness, disparity, or undue severity ofsentence. 3. Commercial & civil law. The substitution of one form of payment for another. commute, vb. -commu tative, adj. commutation of payments. Workers' compensation. A substitution of lump-sum compensation for periodic payments. Ihe lump sum is equal to the present value ofthe future periodic payments. [Cases: Taxation 2295.] commutation oftaxes. A tax exemption resulting from a taxpayer's paying either a lump sum or a specific sum in lieu of an ad valorem tax. [Cases: Taxation C:::o200.] Commutation of Tithes Act. Hist. An act of Parlia ment that permitted tithes to be levied and collected in the form of cash rents rather than labor and goods in kind. commutation tax. See TAX. commutative contract. See CONTRACT. commutative justice. See JUSTICE (1). commuted value. See VALUE (2). Commw. abbr. COMMONWEALTH. compact (kom-pakt), n. (14c) An agreement or covenant between two or more parties, esp. between govern ments or states. family compact. An agreement to further common interests made between related people or within a group that behaves as a family. _ Historically, some international treaties among nations ruled by monarchs have been called family compacts because ofintermarriage among the royal houses. interstate compact. (1903) A voluntary agreement between states enacted into law in the participating states upon federal congressional approval. Cf. I)lTER STATE AGREEMENT. [Cases: States C:::o6.] Compact Clause. (1925) U.S. Const. art. I, 10, cl. 3, which forbids a state from entering into a contract with another state or a foreign country without congressio nal approval. [Cases: States G=6.] companion hill. See BILL (3). companionship services. Assistance provided to someone who needs help with personal matters such as bathing and dressing . This type of service (in contrast to housecleaning) is exempt from the Federal Labor Standards Act's minimum-wage and overtime requirements. company. (13c) 1. A corporation -Of, less commonly, an association, partnership, or union -that carries on a commercial or industrial enterprise. 2. A corpo~ ration, partnership, association, joint-stock company, trust, fund, or organized group of persons, whether incorporated or not, and (in an official capacity) any receiver, trustee in bankruptcy, or similar official, or liquidating agent, for any of the foregOing. Investment Company Act 2(a)(8) (15 USCA 80a-2(a)(8)). - Abbr. CO.; com. bonding company. A company that insures a party against a loss caused by a third party. controlled company. A company that is under the control of an individual, group, or corporation that owns most ofthe company's voting stock. Cf. subsid iary corporation under CORPORATION. dead-and-buried company. A business that has dis solved, leaving no assets. deposit company. An institution whose business is the safekeeping of securities or other valuables deposited in boxes or safes leased to the depositors. See DEPOSI TARY; DEPOSITORY. development-stage company. Securities. A company that devotes substantially all of its efforts to establish ing a new business in which the principal operations either have not yet begun or have begun but are not generating significant revenue. diversified holding company. A holding company that controls several unrelated companies or businesses. diversified investment company. An investment company that by law must invest 75% of its assets, but may not invest more than 5% of its assets in any 319 one company or hold more than 10% of the voting shares in anyone company. face-amount certificate company. An investment company that is engaged or proposes to engage in the business of issuing face-amount certificates of the installment type, or that has been engaged in this business and has such a certificate outstanding. See investment company. growth company. A company whose earnings have increased at a rapid pace and that usu. difects a high proportion of income back into the business. guaranty company. See surety company. holding company. (1906) A company formed to control other companies, usu. confining its role to owning stock and supervising management. -It does not par ticipate in making day-to-day business decisions in those companies. [Cases: Corporations investment company. A company formed to acquire and manage a portfolio ofdiverse assets by investing money collected from different sources. -The Invest ment Company Act of 1940 defines the term as an issuer of securities that (1) is, holds itself out to be, or proposes to be engaged primarily in the business of investing, reinvesting, or trading in securities; (2) is engaged or proposes to engage in the business of issuing face-amount certificates of the installment type, or has been engaged in this business and has such a certificate outstanding; or (3) is engaged or proposes to engage in the business ofinvest

this business and has such a certificate outstanding; or (3) is engaged or proposes to engage in the business ofinvesting, rein vesting, owning, holding, or trading in securities, and owns or proposes to acquire investment securi ties having a value exceeding 40% ofthe value of the issuer's total assets (exclusive ofgovernment securities and cash items) on an unconsolidated basis. 15 USCA 80a-2(a)(16). Also termed investment trust. See REAL-ESTATE INVESTMENT TRUST; MUTUAL FUND. [Cases: Securities Regulation (::::>211-222.] joint-stock company. (18c) 1. An unincorporated asso ciation of individuals possessing common capital, the capital being contributed by the members and divided into shares, ofwhich each member possesses a number of shares proportionate to the member's investment. [Cases: Joint-Stock Companies and Business Trusts 1-24.] 2. A partnership in which the capital is divided into shares that are transferable without the express consent ofthe partners. Also termed joint stock association; stock association. [Cases: Partner ship (::::>224.] "The joint stock association or company developed early in English company law, the term being used to distinguish companies which operated on a joint account and with a 'joint stock' (in trade) of their members from companies (now obsolete) each member of whom traded on one's separate account with one's own stock in trade.. , . In Americanjurisdictions, the joint stock association is gener ally an unincorporated business enterprise with ownership interests represented by shares of stock." Henry G. Henn & John R. Alexander, Laws of Coypoyations 50, at 109 (3d ed. 1983). company limited company. (1862) A company in which the lia bility of each shareholder is limited to the amount individually invested. - A corporation is the most common example of a limited company. limited-liability company. (1856) A company statu torily authorized in certain states that is character ized by limited liability, management by members or managers, and limitations on ownership transfer. Abbr. L.L.C. Also termed limited-liability corpora tion. [Cases; Limited Liability Companies (::::> 1-11.] management company. Any investment company that is neither a face-amount certificate company nor a unit-investment trust. See investment company;face amount certificate company; unit-investment trust under TRUST. mutual company. A company that is owned by its customers rather than by a separate group of stock holders. _ Many insurance companies are mutual companies, as are many federal savings-and-Ioan associations. See MUTUAL LNSURANCE COMPANY. [Cases: Building and Loan Associations (::::> 1; Cor porations (::::>3; Insurance parent company. See parent corporation under COR PORATION. personal holding company. (1924) A holding company that is subject to special taxes and that usu, has a limited number of shareholders, with most of its revenue originating from passive income such as divi dends, interest, rent, and royalties. [Cases: Internal Revenue (::::> 3850.1-3858, 4120.] railroad company. See railroad corporation under COR PORATION. reporting company. A company that, because it issues publicly traded securities, must comply with the reporting requirements ofthe Securities Exchange Act of 1934. [Cases: Securities Regulation (;:::>35.23.] safe-deposit company. See DEPOSITARY (1), shelfcompany. A company that is formed without a particular purpose and may not actually operate until some purpose for its existence arises, usu. when sold to a buyer. -After being formed, shelf companies are usu. allowed to age before being offered for sale. The benefits of a shelf company to a buyer include time saved by not having to form a company, the appear ance of longevity, and easier access to credit. If the company is incorporated, it is also termed a shelfcor poration. small-business investment company. See SMALL-BUSI NESS INVESTMENT COMPANY. surety company. A company authorized to engage in the business ofentering into guaranty and suretyship contracts and acting as a surety on bonds, esp. bail, fidelity, and judicial bonds. Also termed guaranty company. [Cases: Bail (::::>60; Principal and Surety (::::>52.] title company. (1892) A company that examines real estate titles for any encumbrances, claims, or other 320 company-run dividend-reinvestment plan flaws, and issues title insurance. -Also termed title-guaranty company. See TITLE SEARCH. [Cases: Abstracts ofTitle (;::::>2.] trust company. (1834) A company that acts as a trustee for people and entities and that sometimes also operates as a commercial bank. -Also termed (if incorporated) trust corporation. See TITLE (1), (2). [Cases: Banks and Banking (;::::>310-315.] company-run dividend-reinvestment plan. See DIVI DEND-REINVESTMENT PLAN. company's paper. See commercial paper under PAPER. company. union. See UNION. comparable (kom-par-<:l-b<:ll), n. (19c) (usu. pl.) A piece of property used as a comparison to determine the value ofa similar piece ofproperty. [Cases: Evidence (;::::> 113, 142.] -comparable, adj. comparable accommodation. A standard used for deter mining the maximum allowable rent in rent-regulated housing. In applying this standard, a court reviews the prevailing rent for substantially similar housing units in the same area. comparable-sales approach. See MARKET APPROACH. comparables analysis. See MARKET APPROACH. comparable worth. (1983) l. The analogous value that two or more employees bring to a business through their work. 2. The idea that employees who perform identical work should receive identical pay, regardless of their sex; the doctrine that men and women who perform work ofequal value should receive comparable pay. [Cases: Civil Rights (;::::> 1175; Labor and Employ ment C=-2463.] comparatio literarum (kom-p<:l-ray-shee-oh lit-<:l rair-<:lm). [Latin "comparison of writings"] Hist. The act ofcomparing writings to ascertain authorship . Even under Roman law, handwriting experts (comparatores) sometimes testified about a document's authenticity. comparatist. A comparative-law scholar. comparative advertising. See ADVERTISING. comparative criminology. See CRIMINOLOGY. comparative disparity. (1977) Constitutional law. The percentage ofunderrepresentation ofa particular group among potential jurors on a venire, in comparison with the group's percentage ofthe general population. Comparative disparity is calculated by subtracting a group's percentage of representation on the venire from the group's percentage ofthe population -that is, calculating the group's absolute-disparity represen tation -then dividing that percentage by the group's percentage-representation in the population, and multiplying the result by 100. For example, ifAfrican Americans make up 12% ofa county's population, and 8% of the potential jurors on the venire, the absolute disparity ofAfrican-Americans is 4%. And the com parative disparity is 33%, because 4 divided by 12 is .33, or 33%. Many courts criticize the comparative disparity analysis, and favor an absolute-disparity analysis, because the comparative-disparity analysis is said to exaggerate the deviation. The reason for cal culating the disparity is to analyze a claim that the jury was not impartial because it was not selected from a pool of jurors that fairly represented the makeup of the jurisdiction. See DUREN TEST; FAIR-CROSS-SECTION REQUIREMENT; STATISTICAL-DECISION THEORY. Cf. ABSOLUTE DISPARITY. [Cases: Jury (;::::>33(1.1).] comparative fault. See comparative negligence under NEGLIGENCE. comparative history oflaw. See descriptive comparative law under COMPARATIVE LAW. comparative-impairment test. (1974) Conflict oflaws. A test that asks which oftwo or more forums would have its policies most impaired by not having its law applied in the case. [Cases: Action (;::::> 17.] comparative interpretation. See INTERPRETATION. comparative jurisprudence. See COMPARATIVE LAW. comparative law. The scholarly study ofthe similarities and differences between the legal systems of different jurisdictions, such as between civil-law and common law countries. -Also termed comparative jurispru dence. See INTERNATIONAL LAW. "What is known as comparative jurisprudence -namely, the study of the resemblances and differences between different legal systems -is not a separate branch ofjuris prudence co-ordinate with the analytical, historical, and ethical, but is merely a particular method of that science in all its branches. We compare English law with Roman law either for the purpose of analytical jurisprudence, in order the better to comprehend the conceptions and principles of each of those systems; or for the purpose of historical jurisprudence, in order that we may better understand the course of development of each system; or for the purpose of ethical jurisprudence, in order that we may better judge the practical merits and demerits of each of them. Apart from such purposes the comparative study of law would be merely futile." John Salmond, jurisprudence 7-8 n.(c) (Glanville L. Williams ed., 10th ed. 1947). descriptive comparative law. The inventory of legal systems (past and present) as a whole, as well as of individual rules that these systems establish for several categories of legal relations . Descriptive comparative law is sometimes considered one of three subsets ofcomparative law, the other two being comparative legislation and comparative history of law. See COMPARATIVE LEGISLATION; COMPARATIVE LEGAL HISTORY. comparative legal history. A species of comparative law seeking to establish a universal history of law, so that the succession of social phenomena influencing the evolution ofthe legal world might be better understood. This field is closely allied to ethnological jurispru dence, folklore, legal sociology, and jurisprudence. Also termed comparative history oflaw. Cf. descriptive comparative law under COMPARATIVE LAW; COMPARA TIVE LEGISLATION. comparative legislation. A species of comparative law seeking to define the common link for modern statu tory doctrines, concerned with the development of legal study as a social science and with awakening an 321 international legal consciousness, Cf. descriptive com parative law under COMPARATIVE LAW; COMPARATIVE LEGAL HISTORY. comparative negligence. See NEGLIGE::-ICE, comparative-negligence doctrine. (1904) Torts. The principle that reduces a plaintiff's recovery propor tionally to the plaintiff's degree of fault in causing the damage, rather than barring recovery completely . Most states have statutorily adopted the comparative negligence doctrine, See NEGLIGENCE. Cf. CONTRIBU TORY-NEGLIGENCE DOCTRINE, [Cases: Negligence 549.] comparative nomogenetics. The study of the develop ment of the world's legal ideas and systems. This term, like comparative nomoscopy and comparative nomothetics, was devised by fohn Henry Wigmore. See John Henry Wigmore, A Panorama ofthe World's Legal Systems 1121 (libr. ed. 1936). comparative nomoscopy. The description of the world's legal systems. comparative nomothetics. The analysis ofthe merits of legal systems. comparative rectitude. (1913) Archaic. Family law. The degree to which one spouse is less culpable than the other in damaging the marriage, so that even though both spouses are at fault, the less culpable spouse may successfully petition for a separation or divorce, Comparative rectitude tempers the doctrine of recrimi nation by making a divorce pOSSible even though both parties are at fault. Comparative rectitude is now vir tually obsolete because of the prevalence of no-fault divorce. See RECRIMINATION (1). [Cases: Divorce 53.] comparative-sales approach. See MARKET APPROACH. comparator (bm-par-;l-t;lr or kom-p;l-ray-t;lr). Some thing with which something else is compared <the female plaintiffs alleged illegal wage discrimination and contrasted their pay with that of male compara tors>. comparuit ad diem (bm-pair-oo-wit ad dI-;lm), n. [Latin "he appeared to the day"] Hist. A plea averring that the defendant appeared in court as required and did not forfeit the bail bond. compassing (k;Jm-p;l-sing). Hist. The act of contriving or plotting, esp. of something underhanded, -The Treason Act of 1351 criminalized the act of compass ing the sovereign's death. -Also termed imagining. compel, vb. (14c) 1. To cause or bring about by force, threats, or overwhelming pressure <a lawyer cannot be compelled to testify about a privileged communica tion>, 2. (Of a legislative mandate or judicial precedent) to convince (a court) that there is only one possible resol

. (Of a legislative mandate or judicial precedent) to convince (a court) that there is only one possible resolution ofa legal dispute <the wording ofthe statute compels us to affirm>, compellable, adj. Capable of or subject to being com pelled, esp. to testify <an accused person's spouse is not a compellable witness for the prosecution>. compensatio injuriarum compellativus (bm-pel-a-tI-v;lS). [fro Latin compellare "to accuse"] Hist. An adversary or accuser. compelling need. A need so great that irreparable harm or injustice would result if it is not met. _ Generally, courts decide whether a compelling need is present based on the unique facts of each case, In some juris dictions, however, statutes define "compelling need" or provide gUidelines for determining whether one exists. See, e,g" 5 USCA 552(a)(6)(E)(v) (defining "compel ling need" for an expedited response to a Freedom of Information Act request). compelling-state-interest test. (1966) Constitutional law. A method for determining the constitutional validity of a law, whereby the government's interest in the law and its purpose is balanced against an individual's consti tutional right that is affected by the law . Only if the government's interest is strong enough will the law be upheld. The compelling-state-interest test is used, e.g., in equal-protection analysiS when the disputed law requires strict scrutiny. See STRICT SCRUTINY. [Cases: Constitutional Law (;::J 1053, 3062.) compensable (k;lm-pen-sa-b~I), adj. (17c) Able or entitled to be compensated for <a compensable injury>. Also termed recompensable. compensable death. See DEATH. compensable injury. See INJURY, compensate (kom-p;ln-sayt), vb. 1. To pay (another) for services rendered <the lawyer was fairly compensated for her time and effort>, 2. To make an amendatory payment to; to recompense (for an injury) <the court ordered the defendant to compensate the injured plain tiff>. compensated surety. See SURETY, compensating balance. The amount ofmoney a borrower from a bank is reqUired to keep on deposit as a condi tion for a loan or a line of credit. compensatio (kom-pen-say-shee-oh), n, [Latin "weighing; balancing"] Roman law. A defendant's claim to have the plaintiff's demand reduced by the amount that the plaintiff owes the defendant. See SETOFF (2). compensatio criminis (kompen-say-shee-oh krim-a nis). [Latin) Eccles. law. A defendant's plea in a divorce action, alleging that the complainant is guilty of the same conduct that the defendant is charged with, esp. adultery. See RECRIMINATION (1). "The compensatio criminis is the standard canon law of England in questions of divorce, and it is founded on the principle that a man cannot be permitted to complain of the breach of a contract which he had first Violated; and the same prinCiple, it is to be presumed, prevails in the United States, So, if the injured party, subsequently to the adultery, cohabits with the other, or is otherwise reconciled to the other, after just grounds of belief in the fact, it is, in judgment of law, a remission of the offense, and a bar to the divorce." 4 James Kent, Commentaries on American Law *100-01 (George Comstock ed., 11th ed, 1866). compensatio injuriarum (kom-pen-say-shee-oh in-juur ee-air-am). [Latin "the compensation of wrongs"] Scots law. The setoff in a defamation action. compensation (kom-pan-say-shan), n. (14c) 1. Remu neration and other benefits received in return for services rendered; esp., salary or wages. [Cases: Labor and Employment (;::::j 168.] "Compensation consists of wages and benefits in return for services. It is payment for work. If the work contracted for is not done, there is no obligation to pay. [Compensa tion] includes wages, stock option plans, profit-sharing, commissions, bonuses, golden parachutes, vacation, sick pay, medical benefits, disability, leaves of absence, and expense reimbursement." Kurt H. Decker & H. Thomas Felix II, Drafting and Revising Employment Contracts 3.17, at 68 (1991). 2. Pay~ent of damages, or any other act that a court orders to be done by a person who has caused injury to another. In theory, compensation makes the injured person whole. [Cases: Damages G=::> 15.]3. SETOFF (2). compensatory, (k<lm-pen-sa-tor-ee), compensational (kom-p;m-say-sh<l-n<ll), adj. accrued compensation. (1919) Remuneration that has been earned but not yet paid. adequate compensation. See just compensation. deferred compensation. (1926) 1. Payment for work performed, to be paid in the future or when some future event occurs. [Cases: Labor and Employ ment 177.] 2. An employee's earnings that are taxed when received or distributed rather than when earned, such as contributions to a qualified pension or profit-sharing plan. just compensation. (16c) Under the Fifth Amendment, a payment by the government for property it has taken under eminent domain usu. the property's fair market value, so that the owner is theoretically no worse off after the taking. Also termed adequate compensation; due compensation; land damages. [Cases: Eminent Domain (;=> 122-150.] unemployment compensation. Compensation paid at regular intervals by a state agency to an unemployed person, esp. one who has been laid off. -Also termed unemployment insurance. [Cases: Unemployment Compensation (;=> 1.] unreasonable compensation. (1946) Tax. Compen sation that is not deductible as a business expense because the compensation is out ofproportion to the services actually rendered or because it exceeds statu torily defined limits. IRC (26 USCA) 162. [Cases: Internal Revenue (;:::.,3323] Compensation Clause. The clause ofthe U.S. Constitu tion providing for federal judges to be paid. U.S. Const. art. III, 1, d. 2. [Cases: Judges (;=>22.] compensation period. The time fixed by unemploy ment or workers' -compensation law during which an unemployed or injured worker is entitled to receive compensation. [Cases: Unemployment Compensation (;=>580-585.; Workers' Compensation C:)836-868.] compensatories. See compensatory damages (1) under DAMAGES. compensatory damages. See DAMAGES. compensatory payment. Family law. A postmarital spousal payment made by the richer ex-spouse to the poorer one and treated as an entitlement rather than as a discretionary award . Compensatory payments are set by statute and are based on a formula using the length of the marriage, differences in postdivorce income, role as primary caregiver, and other factors. The purpose is to compensate somewhat for disparate income levels after a failed marriage. Cf. ALIMONY. compensatory time. See COMP TIME. comperendinatio (kom-p,'lr-en-da-nay-shee-oh), n. [Latin "to remand to the next day but one") Roman law. An adjournment ofan action, particularly one of the actiones legis, to hear the parties or their advocates a second time; a second hearing ofthe parties to a case. The judge (judex) would decide the case at the conclu sion ofthe second hearing. See LEGIS ACTIO. competence, n. (17c) 1. A basic or minimal ability to do something; qualification, esp. to testify <competence ofa witness>. [Cases: Witnesses (;=>35.)2. The capacity ofan official body to do something <the court's com petence to enter a valid judgment>. 3. Authenticity <the documents were supported by a business-records affidavit, leaVing their competence as evidence beyond doubt>. [Cases: Criminal Law (;:::444; Evidence (;=> 369.] Cf. COMPETENCY. -competent, adj. competency, n. (16c) 1. The mental ability to understand problems and make decisions. [Cases: Mental Health G=~'3.) 2. A criminal defendant's ability to stand trial, measured by the capacity to understand the proceed ings, to consult meaningfully with counsel, and to assist in the defense. -Also termed competency to stand trial. [Cases: Mental Health (;=>432.] Cf. COM PETENCE. competent, adj. competency hearing. See PATE HEARING. competency proceeding. See PROCEEDING. competency to stand trial. See COMPETENCY. competent contractor. See CONTRACTOR. competent court. See court ofcompetent jurisdiction under COURT. competent evidence. See EVIDENCE. competent jurisdiction. See rURISDICTION (2). competent witness. See WITNESS. competition. (16c) The struggle for commercial advan tage; the effort or action of two or more commer cial interests to obtain the same business from third parties. fair competition. (17c) Open, equitable, and just com petition between business competitors. horizontal competition. (1930) Competition between a seller and its competitors . The Sherman Antitrust Act prohibits unreasonable restraints on horizontal competition, such as price-fixing agreements between competitors. -Also termed primary-line competi tion. 323 complaint perfect competition. A completely efficient market situ ation characterized by numerous buyers and sellers, a homogeneous product, perfect information for all parties, and complete freedom to move in and out of the market. Perfect competition rarely if ever exists, but antitrust scholars often use the theory as a standard for measuring market performance. primary-litle competition. See horizontal competi tion. vertical competition. (1954) Competition between participants at different levels of distribution, such as manufacturer and distributor. -Also termed sec ondary-line competition. competitive advantage. The potential benefit from information, ideas, or devices that, if kept secret by a business, might be economically exploited to improve the business's market share or to increase its income. competitive advertising. See ADVERTISING. competitive bid. See BID (2). competitive civil-service examination. A test designed to evaluate a person's qualifications for a civil-service position. 'This type of examination may be open to all those seeking civil-service employment, or it may be restricted to those civil servants seeking a promo tion. See CIVIL SERVICE. [Cases: Officers and Public Employees competitive injury. A wrongful economic loss caused by a commercial rival, such as the loss ofsales due to unfair competition; a disadvantage in a plaintiff's ability to compete with a defendant, caused by the defendant's unfair competition . Most courts require the plaintiff to show a competitive injury as an element ofa misap propriation action, or to have standing to prosecute a false-advertising action under 15 USCA 1125(a)(l) (B). Also termed competitive harm. [Cases: Antitrust and Trade Regulation (;:::::; 138.] ~ompetitor dick fraud. See FRAUD. compilation (kom-pd-Iay-sh;:m), n. (I5c) 1. Copyright. A collection ofliterary works arranged in an original way; esp., a work formed by collecting and assembling preexisting materials or data that are selected, coor dinated, or arranged in such a way that the resulting product constitutes an original work of authorship. An author who creates a compilation owns the copy right of the compilation but not of the component parts. See 17 USCA 101. Cf. collective work, deriva tive work under WORK (2). [Cases: Copyrights and Intel lectual Property 12(3).] 2. A collection of statutes, updated and arranged to facilitate their use. -Also termed compiled statutes. [Cases: Statutes ~~144.] 3. A financial statement that does not have an accoun tant's assurance ofconformity with generally accepted accounting principles . In preparing a compilation, an accountant does not gather evidence or verify the accuracy of the information proVided by the client; rather, the accountant reviews the compiled reports to ensure that they are in the appropriate form and are free of obvious errors. compile, vb. compiled statutes. 1. See COMPILATION (2). 2. See STAT UTE. complainant (bm-playn-dnt). (l5c) 1. The party who brings a legal complaint against another; esp., the plain tiff in a court ofequity or, more modernly, a civil suit. "A suit in equity, under the procedure of the English Court of Chancery, which was generally adopted in the American States prior to the code, is instituted by the plaintiff filing a bill of complaint. The plaintiff is usually called the com plainant, in the Federal courts the complainant or plain tiff indifferently. The bill is in substance a petition to the chancellor, or judge of the court of equity, setting forth at large the grounds of the suit, and praying the process of the court, its subpoena, to bring the defendant into court and compel him to answer the plaintiff's bill, and, also, for such relief by decree or interlocutory remedy, by way of

the plaintiff's bill, and, also, for such relief by decree or interlocutory remedy, by way of injunction. etc., as the plaintiff supposes himself entitled to." Edwin E. Bryant, The Law ofPleading Under the Codes ofCivil Procedure 55 (2d ed. 1899). 2. A person who, under oath, signs a statement (called a "complaint") establishing reasonable grounds to believe that some named person has committed a crime. Also termed affiant. [Cases: Criminal Law (,':::>210.] complainantless crime. See victimless crime under CRIME. complaint. (14c) 1. The initial pleading that starts a civil action and states the basis for the court's jurisdiction, the basis for the plaintiff's claim, and the demand for relief. In some states, this pleading is called a petition. [Cases: Federal Civil Procedure (;:::::;67l; Pleading C=' 38.5.] 2. Criminal law. A formal charge accusing a person of an offense. Fed. R. Crim, P. 3. Cf. INDICT MENT; INFORMATION, [Cases; Indictment and Infor mation (;:::::;54.] amended complaitlt. (1822) A complaint that modifies and replaces the original complaint by adding relevant matters that occurred before or at the time the action began. Fed. R. Civ. P. 15(d). In some circumstances, a party must obtain the court's permission to amend its complaint. Fed. R. Civ. Pro. 15(a). Also termed substituted complaint. Cf. supplemental complaint. [Cases: Federal Civil Procedure (;:::::;839; PleadingG--~ 233, complaint for modification. See motion to modify under MOTION. coutlter-complaint. A complaint filed by a defendant against the plaintiff, alleging that the plaintiff has committed a breach and is liable to the defendant for damages. [Cases: Federal Civil Procedure 775-784; Pleading 138; Set-Off and Counter claim fresh complaint. See FRESH COMPLAINT. preliminary complaint. (1833) A complaint issued by a court to obtain jurisdiction over a criminal suspect for a hearing on probable cause or on whether to bind the suspect over for trial. [Cases: Criminal Law 208.] substituted complaint. See amended complaint. supplemental complaint. (1821) An additional com plaint that either corrects a defect in the original 324 complementarity complaint or adds relevant matters that occurred after the action began. _ Generally, a party must obtain the court's permission to file a supplemental complaint. Fed. R. Civ. Pro. 15(d). Cf. amended complaint. [Cases: Federal Civil Procedure G=>864; Pleading (';::::;)279.] third-party complaint. (1938) A complaint filed by the defendant against a third party, alleging that the third party may be liable for some or all of the damages that the plaintiff is trying to recover from the defendant. Fed. R. Civ. P. 14. [Cases: Federal Civil Procedure<~=) 281; Parties ~49;Pleading ~149.] well-pleaded complaint. (1954) An original or initial pleading that sufficiently sets forth a claim for relief by including the grounds for the court's jurisdiction, the basis for the relief claimed, and a demand for judgment so that a defendant may draft an answer that is responsive to the issues presented. -In federal court, a well-pleaded complaint must raise a control ling issue of federal law, or else the court will not have federal-question jurisdiction over the lawsuit. [Cases: Federal Civil Procedure <::~673; Federal Courts 241; Pleading complementarity, n. 1. The state or quality ofbeing com plementary. 2. International law. See COMPLEMENTAR ITY PRINCIPLE. complementarity principle. International law. The doctrine that a country with control of a person accused of violating international criminal law has the jurisdiction to charge and try a person. -Because the jurisdiction ofthe International Criminal Court is complementary to the criminal jurisdiction of coun tries, that tribunal can assert jurisdiction over the accused person only if the country is unable or unwill ing to undertake a genuine investigation and prosecu tion. Sometimes shortened to complementarity. complementary goods. Trademarks. Products that are typically used together, such as pancake syrup and pancake mix, or motion-picture projectors and film. -Trademark law may prevent the use ofa similar mark on complementary goods because consumers may be confused into thinking the goods come from a common source. The patent-misuse doctrine may provide a defense in an infringement suit ifthe plaintiff has used its patent rights to gain market control over unpatented complementary goods. -Also termed complementary products. See AUNT JEMIMA DOCTRINE; PATENT-MISUSE DOCTRINE. [Cases: Trademarks ~noo.] complementary products. See COMPLEMENTARY GOODS. complete conception ofinvention. See CONCEPTION OF INVENTION. completed-contract accounting method. See ACCOUNT ING METHOD. completed gift. See GIFT. complete diversity. See DIVERSITY OF CITIZENSHIP. completed-operations policy. See INSURANCE POLICY. complete in itself, adj. (I8c) (Of a legislative act) fully covering an entire subject. complete integration. See INTEGRATION (2). complete interdiction. Seefull interdiction under INTER DICTION (3). complete jurisdiction. See JURISDICTION. completely integrated contract. See INTEGRATED CONTRACT. completeness doctrine. See RULE OF OPTIONAL COM PLETENESS. complete-operation rule. Insurance. The principle that goods are covered against damage at any time during the shipping process, including the loading and unload ing of the goods. -Under some circumstances, the rule has been extended to cover personal injuries that occur during the shipping process. See WAREHOUSE-TO WAREHOUSE COVER. Cf. COMING-TO-REST DOCTRINE. [Cases: Insurance ~2137(3), 2681.] complete ownership. See perfect ownership under OWN ERSHIP. complete-preemption doctrine. (1987) The rule that a federal statute's preemptive force may be so extraordi nary and all-encompassing that it converts an ordinary state-cornman-law complaint into one stating a federal claim for purposes ofthe well-pleaded-complaint rule. See well-pleaded complaint under COMPLAINT. [Cases: Federal Courts ~241.] complete property. See PROPERTY. complete voluntary trust. See executed trust under TRUST. completion bond. See PERFORMANCE BOND. complex litigation. See LITIGATION. complex trust. See TRUST. compliance andit. See AUDIT. complicated larceny. See mixed larceny under LARCENY. complice (kom-pHs). Archaic. An accomplice or acces sory to a crime or immoral behavior. complicity (k<Jm-pIis-a-tee), n. (17c) Association or par ticipation in a criminal act; the act or state of being an accomplice. -Under the Model Penal Code, a person can be an accomplice as a result ofeither that person's own conduct or the conduct ofanother (such as an innocent agent) for which that person is legally accountable. Model Penal Code 2.06. See ACCOM PLICE; innocent agent under AGENT. [Cases: Criminal Law -complicitous (kam-plis-<J-las), adj. composite mark. See composite trademark under TRADE MARK. composite state. See STATE. composite trademark. See TRADEMARK. composite work. See WORK (2). composition, n. (14c) 1. An agreement between a debtor and two or more creditors for the adjustment 325 comprising or discharge of an obligation for some lesser amount; an agreement among the debtor and two or more credi tors that the debtor will pay the creditors less than their full claims in full satisfaction of their claims. _ The preexisting-duty rule is not a defense to this type of agreement because consideration arises from the agree ment by each creditor with each other to take less than full payment. Through the performance ofthis agree ment, the debtor is discharged in full for the debts of the participating creditors. -Also termed composition with creditors; creditors' composition; attermoiement. [Cases: Bankruptcy (;:::c3662.100-3662.115; Debtor and Creditor 10.] 2. The compensation paid as part of such an agreement. 3. Rist. A payment of money or chattels as satisfaction for an injury. -In Anglo-Saxon and other early societies, a composition with the injured party was recognized as a way to deter acts of revenge by the injured party. compose, vb. "[TJhe first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the AngloSaxon proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out.... As the SOCial interest in peace and order -the general security in its lowest terms -comes to be secured more effectively by regulation and ultimate putting down of feud as a remedy, payment of composition becomes a duty rather than a privilege .... The next step is to measure the composition not in terms ofthe vengeance to be bought off but in terms of the injury. A final step is to put it in terms of reparation." Roscoe Pound, An Introduc tion to the Philosophy of Law 74 (rev. ed. 1954). composition deed. See DEED. composition of matter. Patents. One of the five types of patentable statutory subject matter, consisting of combinations of natural elements whether resulting from chemical union or from mechanical mixture, and whether the substances are gases, fluids, powders, or solids. -This classification includes chemical com pounds such as drugs and fuels, physical products such as plastics and particleboard, and new life forms made by genetic engineering. Its subject matter is always the substance itself, rather than the form or shape. -Often shortened to composition. [Cases: Patents (;:::c 14.] "[AJ compOSition of matter describes what most people imagine to be the goal of the typical laboratory inventor, since it is usually a new chemical invention, although it can be any composition of materials, not limited solely to chemicals." Arthur R. Miller & Michael H. Davis. Intellectual Property in a Nutshell 21 (2d ed. 1990). composition with creditors. See COMPOSITIOK (1). compos mentis (kom-p<ls men-tis), adj. [Latin "master of one's mind"] (17c) Of sound mind; having use of and control over one's own mental faculties. Cf. NON COMPOS MENTIS. [Cases: Mental Health (;:::c3.1.] compossessio (kom-p<l-zes[h]-ee-oh). [Latin] Civil law. Possession of a thing in common. compos sui (kom-p;)s s[y]OO-I), adj. [Latin "master of one's self"] (Of a person) haVing control over one's own limbs, or having the power ofbodily motion. compound (kom-or bm-pownd), vb. (14c) 1. To put together, combine, or construct. 2. To compute (interest) on the principal and the accrued interest. 3. To settle (a matter, esp. a debt) by a money payment, in lieu of other liability; to adjust by agreement. 4. To agree for consideration not to prosecute (a crime). _ Compounding a felony in this way is itself a felony. 5. Loosely, to aggravate; to make (a crime, etc.) more serious by further bad conduct. compound duty. See DUTY (4). compounder (kom-or bm-pown-d~r). (l6c) 1. One who settles a dispute; the maker of a composition. -Also termed amicable compounder. See COMPOSITION (1). 2. One who knows ofa crime by another and agrees, for a promised or received reward, not to prosecute. compounding a crime. (l7c) The offense of either agreeing not to prosecute a crime that one knows has been committed or agreeing to hamper the prosecu tion. Also termed compounding a felony; (archai cally) theftbote. See STIFLING OF A PROSECUTION. [Cases: Compounding Offenses C-:J 1.] "If a prosecuting attorney should accept money from another to induce the officer to prevent the finding of an indictment against that person this would be compound ing a crime if the officer knew the other was gUilty of an offense, but would be bribery whether he had such knowl edge or not." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 539 (3d ed. 1982). compounding a felony. See COMPOUNDING ACRIME. compound interest. See INTEREST (3). compound journal entry. See ENTRY (2). compound larceny. 1. See mixed larceny under LARCENY. 2. See aggravated larceny under LARCENY. compound offense. See OI'FENSE (1). compound policy. See blanket policy under INSURANCE POLICY. comprehensive general-liability insurance. See INSUR ANCE. comprehensive general-liability policy. See INSURANCE POL

ability insurance. See INSUR ANCE. comprehensive general-liability policy. See INSURANCE POLICY. comprehensive insurance. See INSURANCE. comprehensive nonliteral similarity. See SIMILARITY. comprehensive zoning plan. (1925) A general plan to control and direct the use and development of a large piece of property. See ZONIKG. [Cases: Zoning and Planning ~30.] comprint (kom-print). Hist. Copyright. The surreptitious and supposedly illegal printing of another bookseller's copy of a work. -Despite the word's appearance as a legal term in dictionaries since 1706, no such offense ever existed. The term, which is properly a verb meaning "to share in printing (a book)," was first given this erro neous definition by John Kersey when he produced a new edition ofEdward Phillips's New World ofEnglish Words. It has occasionally been copied by legallexicog rap hers ever since. comprising, adj. Patents. (In the transition between the preamble and the body ofa patent claim) including; having. -This term does not limit the claim to the 326 compromis specified elements, so a later patent applicant's product or process cannot avoid infringement by merely adding another claim element. See closed-ended claim under PATENT CLAIM. compromis (kom-pr<l-mee). [FrenchJ Int'llaw. 1. An agreement between two or more countries to submit an existing dispute to the jurisdiction of an arbitrator, an arbitral tribunal, or an international court. See com promissory arbitration under ARBITRATION. ad hoc compromis (ad hok kom-pr<l-mee). An agree ment in which countries submit a particular dispute that has arisen between them to an ad hoc or insti tutionalized arbitral tribunal or to an international court. Also termed compromis proper; special agreement. general compromis. An agreement in which countries submit all or a definite class of disputes that may arise between them to an arbitral institution, a court, or an ad hoc arbitral tribunal by concluding a general arbi tration treaty or by including an arbitration clause in a treaty. Also termed abstract compromis; antici pated compromis. 2. In international-law moot-court competitions, the record upon which the arguments are based. compromise, n. (ISc) 1. An agreement between two or more persons to settle matters in dispute between them; an agreement for the settlement of a real or supposed claim in which each party surrenders something in concession to the other. Also termed compromise and settlement; (erroneously) compromise settlement. [Cases: Compromise and Settlement 1.J 2. A debtor's partial payment coupled with the creditor's promise not to claim the rest of the amount due or claimed. Cf. ACCORD; ACCORD AND SATISFACTION. compromise, vb. compromise and settlement. See COMPROMISE (1). compromise verdict. See VERDICT. compromis proper. See ad hoc compromis under COM PROMIS. compromissarius (kom-pr<l-mi-sair-ee-<ls). [Latin] Roman law. See ARBITRATOR. compromissory arbitration. See ARBITRATION. compromissum (kom-pra-mis-am), n. [Latin "mutual agreement"J Roman law. An agreement to submit a controversy to arbitration. compte arrete (kawnt a-ray-tay). [French "settled account"] An account stated in writing, and acknowl edged to be correct on its face by the party against whom it is stated. compter (kown-t<Jr), n. Hist. A debtor's prison. comp time. Time that an employee is allowed to take off from work instead of being paid for overtime already worked. -Also termed compensatory time. comptroller (bn-troh-l<lr). (ISc) An officer ofa business or a private, state, or municipal corporation who is charged with duties usu. relating to fiscal affairs, including auditing and exam ini ng accounts and report ing the financial status periodically. Also spelled controller. [Cases: Corporations (::::;:>303; Municipal Corporations Comptroller General of the United States. The officer in the legislative branch of the federal government who heads the General Accountability Office . The Comptroller General is appointed by the President with the advice and consent of the Senate. See GENERAL ACCOUNTABILITY OFFICE. [Cases: United States (::::;:> 40.] Comptroller ofthe Currency. See OFFICE OF THE COMP TROLLER OF THE CURRENCY. compulsion, n. (ISc) 1. The act of compelling; the state ofbeing compelled. "Compulsion can take other forms than physical force; but in whatever form it appears the courts have been indisposed to admit that it can be a defence for any crime committed through yielding to it and the law of the matter is both meagre and vague. It can best be considered under the heads of obedience to orders, martial coercion, duress per minas, and necessity." J.W. Cecil Turner, Kenny's Outlines ofCriminal Law 54 06th ed. 1952). 2. An uncontrollable inclination to do something. 3. Objective necessity; duress. compel, vb. compulsory (k<lm-p<ll-s<l-ree), adj. (16c) Compelled; mandated by legal process or by statute <compulsory counterclaim>. compUlsory, n. Eccles. law. An order that compels the attendance of a witness. compulsory appearance. See APPEARANCE. compulsory arbitration. See ARBITRATION. compulsory-attendance law. A statute requiring minors ofa specified age to attend school . Compulsory-atten dance laws do not apply to married persons. Also termed compulsory-school-attendance law. See AMISH EXCEPTION. [Cases: Schools compulsory condition. See CONDITION (2). compulsory counterclaim. See COUNTERCLAIM. compulsory-counterclaim rule. The rule requiring a defending party to present every counterclaim arising out of the same transaction or occurrence that is the basis of the plaintiffs claim. Fed. R. Civ. P. 13(a). Most courts hold that if a party does not timely bring a compulsory counterclaim, the party is estopped from asserting the claim. Federal Civil Procedure (::::;:>775; Judgment Set-Off and Counter claim (;::::'60.J compulsory disclosure. See DISCLOSURE (2). compulsory insurance. See INSURANCE. compulsory joinder. See JOINDER. compulsory labor. See FORCED LABOR. compulsory license. See I.ICENSE. compulsory nonsuit. See NONSUIT (2). compulsory pilot. See PILOT. compulsory pilotage. See PILOTAGE. 327 compulsory pooling. See POOLING. compulsory process. See PROCESS. Compulsory Process Clause. (1957) The clause of the Sixth Amendment to the U.S. Constitution giving criminal defendants the subpoena power for obtain ing witnesses in their favor. [Cases: Witnesses compulsory purchase. Rare. 1. See EMINENT DOMAIN. 2. See EXPROPRIATION (1). compulsory retirement. See RETIREMENT. compulsory sale. See SALE. compulsory-school-attendance law. See COMPULSORY ATTENDANCE LAW. compulsory surrender. 1. See EMINENT DOMAIN. 2. See EXPROPRIATION (1). compulsory unitization. See UNITIZATION. compurgation (kom-pdr-gay-sh,m), n. (17c) [Latin con "together" +purgare "to clear or purge"] Hist. A trial by which a defendant could have supporters (called com purgators), frequently 11 in number, testify that they believed the defendant was telling the truth. -Also termed wager oflaw; trial by oath. compurgatory, adj. "If a defendant on oath and in a set form ofwords will deny the charge against him, and if he can get a certain number of other persons (compurgators) to back his denial by their oaths, he will win his case. If he cannot get the required number, or they do not swear in proper form, 'the oath bursts,' and he will lose, Though oaths were used in the Roman law of procedure, this institution of compurgation was not known to it, It was, however, common to the laws of many of the barbarian tribes who overran the Roman empire. Because it was so common and so widespread the church adopted it.... The case of King v. Williams in 1824 was the last instance of its use. It was finally abolished in 1833." 1 William Holdsworth, A History of English Law 305-08 (7th ed. 1956). compurgator (kom-pdr-gay-t<)r). (l6c) Hist. A person who appeared in court and made an oath in support of a civil or criminal defendant. -Also termed oath helper. See COMPURGATlON. computer crime. See CRIME. computer-information transaction. Copyright. An agreement whose primary purpose is to create, modify, transfer, or license computer information or rights in computer information. [Cases: Copyrights and Intel lectual Property C=:c 107.] computer matching. The comparing ofcomputer records in two separate systems to determine whether the same record exists in both systems. The government, for example, uses computer matching to find persons who are both employed and receiving welfare payments and to find instances in which both divorced parents are claiming the same child on their income-tax returns. See COMPUTER MATCHING AND PRIVACY PROTECTION ACT OF 1988. Computer Matching and Privacy Protection Act of 1988. An act that allows governmental agencies, with certain limitations, to compare computerized records to establish or verify eligibility for benefits or to recoup concealment payments on benefits. 5 USCA 552a. See COMPUTER MATCHING. Computer Programs Directive. See DIRECTIVE ON THE LEGAL PROTECTION OF COMPUTER PROGRAMS. Computer Software Protection Act of 1980. Copyright. An amendment to the Copyright Act of 1976, defining "computer program" as a literary work for copyright purposes and qualifying the exclusive rights of copy righted-software owners. 17 USCA 117. Computer Software Protection Act of1984. Copyright. An amendment to the Copyright Act of 1976, enacted to protect copyrighted computer programs against illegal copying. 17 USCA 109. Computer Software Rental Amendments Act. Copy right. A 1990 statute prohibiting computer-program purchasers from leaSing, renting, or lending the software for commercial gain. 17 USCA 801-805. [Cases: Copyrights and Intellectual Property 67.3.] computus (kom-py<)-t<)s). [Latin computo "to count up; to reckon") Hist. A writ to compel a guardian, bailiff, receiver, or accountant to render an accounting. Also spelled compotus. Comstock Act. See COMSTOCK LAW. comstockery (kom-stok-dr-ee). (often cap.) Censorship or attempted censorship ofart or literature that is sup posedly immoral or obscene. Comstock law (kom-stok). (1878) An 1873 federal statute that prohibited mailing "obscene, lewd, or las civious" books or pictures, as well as "any article or thing deSigned for the prevention of conception or procuring of abortions." Because ofthe intolerance that led to this statute, the law gave rise to an English word roughly equivalent to prudery -namely, com stockery. -Also termed Comstock Act. [Cases: Postal Service 031.1.] con. abbr. 1. Confidence <can game>. 2. Convict <ex con>. 3. Contra <pros and cons>. 4. (cap.) Constitu tional <Con. law>. con, n. See CONFIDENCE GAME. conatus (kd-nay-t<)s). [Latin] Hist. An attempt, esp. to commit a crime. concealed debtor. See DEBTOR. concealed weapon. See WEAPON. concealment, n. (14c) 1. The act of refraining from dis closure; esp., an act by which one prevents or hinders the discovery of something; a cover-up. 2. The act of removing from sight or notice; hiding. 3. Insurance. lhe insured's intentional Withholding from the insurer material facts that increase the insurer's risk and that in good faith ought to be disclosed. Cf. NONDISCLOSURE. [Cases: Insurance C=:c2961.J -conceal, vb. "Concealment is an affirmative act intended or known to be likely to keep another from learning of a fact of which he would otherwise have learned. Such affirmative action is always equivalent to a misrepresentation and has any effect 328 concealment rule that a misrepresentation would have, .. ," Restatement (Second) of Contracts 160 cmt. a (1979), active concealment. (1865) The concealment by words or acts of something that one has a duty to reveaL [Cases: Fraud 16.J fraudulent concealment. (1801) The affirmative sup pression or hiding, with the intent to deceive or defraud, of a material fact or circumstance that one is legally (or, sometimes, morally) bound to reveaL Also termed hidden fraud. [Cases: Fraud 16.] passive concealment. (1882) The act of

ed hidden fraud. [Cases: Fraud 16.] passive concealment. (1882) The act of maintaining silence when one has a duty to speak. [Cases; Fraud 16.l concealment rule. (1950) The principle that a defendant's conduct that hinders or prevents a plaintiff from dis covering the existence of a claim tolls the statute of limitations until the plaintiff discovers or should have discovered the claim. -Also termed fraudulent-con cealment rule. [Cases: Limitation of Actions C=>104,j concedo (bn-see-doh). [Latin] Hist. I grant. _ This was formerly a term of conveyance. concentration account. A Single centralized bank account into which funds deposited at or collected at out-of-area locations are periodically transferred. conception of invention. (1859) Patents. The formation in the inventor's mind of a definite and permanent idea ofa complete invention that is thereafter applied in practice. -Courts usu. consider conception when determining priority ofinvention. [Cases: Patents 90(1).] complete conception ofinvention. Patents. The point at which an inventor knows every feature of the process or device to be patented, such that a person with ordinary skill in the art could reproduce it without extensive research or experimentation. -Often shortened to complete conception. [Cases: Patents C=>90(I).J conceptum (bn-sep-t<lm). [Latin "seized"] Civillaw. A theft in which the stolen item was searched for and found in someone's possession and in the presence of witnesses. See furtum conceptum under FURTUM. concerted action. (ISc) An action that has been planned, arranged, and agreed on by parties acting together to further some scheme or cause, so that all involved are liable for the actions of one another. -Also termed concert ofaction. [Cases; Conspiracy C=>2,24(1).] concerted activity. Labor law. Action by employees con cerning wages or working conditions . Concerted activity is protected by the National Labor Relations Act and cannot be used as a basis for disciplining or discharging an employee. [Cases: Labor and Employ ment C=> 1340.] "Typical protected concerted activity involves union orga nizing, the discussion of unionization among employees, or the attempt by one employee to soliCit union support from another employee. But concerted activity need not involve a union, Activities by groups of employees unaffili ated with a union to improve their lot at their work place are deemed protected concerted activities," Douglas L. leslie, Labor Law in a Nutshell 84 (3d ed. 1992). concerted refusal to deal. Antitrust. An agreement between two or more persons or firms to not do business with a third party. -The parties to the agree ment mayor may not be competitors. Concerted refusals to deal may violate 1ofthe Sherman Act and are analyzed under either the per se rule or the rule of reason, depending on the nature ofthe agreement. See BOYCOTT; PER SE RULE; RULE OF REASON. concert ofaction. See CONCERTED ACTION. concert-af-action rule. See WHARTON'S RULE. concessi (bn-ses-I). [Latin] Hist. I have granted. - Concessi creates a covenant in a lease for years; it does not warrant title. Concessi often appeared in the phrase demisi, concessi, et ad firmam tradidi ("demised, granted, and let to farm"). Cf. DEDI. "Concessi (a word much used in Conveyances). In Law it creates a Covenant, as Dedi does a Warranty," Thomas Blount, NomoLexicon: A Law-Dictionary (1670). concessimus (bn-ses-<l-m<ls). [Latin] Hist. We have granted. -Concessimus is a term of conveyance that creates a joint covenant on the part of the grantors. concessio (bn-sesh-ee-oh). [Latin] Hist. A grant. A term of conveyance used to convey incorporeal property. PI. concessiones. "Grants, concessiones; the regular method by the common law of transferring the property of incorporeal heredita ments, or, such things whereof no livery can be had, For which reason all corporeal hereditaments, as lands and houses, are said to lie in livery; and the others, as advow sons, commons, rents, reversions, etc.. to lie in grant. .. , These therefore pass merely by the delivery of the deed." 2 William Blackstone, Commentaries on the Laws ofEng/and 317 (1766). concession, n. (l5c) 1. A government grant for specific privileges. 2. The voluntary yielding to a demand for the sake of a settlement. 3. A rebate or abatement. 4. Int'llaw. A contract in which a country transfers some rights to a foreign enterprise which then engages in an activity (such as mining) contingent on state approval and subject to the terms of the contract. [Cases: Treaties C=>8.] concede, vb. -concessive, adj. concession bargaining. Labor law. A type of collective bargaining in which the parties negotiate the employ ees' giving back preViously gained improvements in wages, benefits, or working conditions in exchange for some form of job security, such as protection against layoffs. Also termed employee givebacks; union give backs. See COLLECTIVE BARGAINING. concessit solvere (k<ln-ses-it sol-vCl-ree). [Latin "he agreed to pay"] Hist. A form ofdebt action on a simple contract. The plaintiff alleged that the defendant had granted and agreed to pay to the plaintiff the sum sued for, but had not done so. TIle defendant responded with a plea of nunquam indebitatus ("never indebted"). See indebitatus assumpsit under ASSUMPSIT; NUNQUAM INDEBITATUS; common count under COUNT. concessor (bn-ses-ar). Hist. A grantor. Cf. CONCESSUS. 329 concessum (kan-seS-;lm), p.pl. [fro Latin concedere "to grant"] Hist. Granted. _ Judges used this term to signify their assent to a point made in argument; for example, a court might state that a particular proposi tion was concessum per totam curiam ("granted by the whole court"). concessus (k;ln-ses-;ls). Hist. A grantee. Cf. CONCES SOR. conciliation, n. (1803) 1. A settlement of a dispute in an agreeable manner. 2. A process in which a neutral person meets with the parties to a dispute and explores how the dispute might be resolved; esp., a relatively unstructured method of dispute resolution in which a third party facilitates communication between parties in an attempt to help them settle their differ ences. -Some jurisdictions, such as California, have Family Conciliation Courts to help resolve problems within the family. Also termed (in sense 2) facilita tion; conciliation procedure. Cf. MEDIATION; ARBITRA TION. conciliate, vb. -conciliative, conciliatory, adj. -conciliator, n. conciliation court. See small-claims court under COURT. conciliation procedure. See CONCILIATION (2). concilium (kan-sil-ee-am). [Latin "council"]!. Hist. The sitting ofa court to hear argument in a case; a motion requesting a day to present an argument. 2. CONCILIUM PLEBIS. concilium plebis (bn-sil-ee-;lm plee-bis). [Latin "assembly ofthe people"] Roman law. An assembly of the plebs gathered together to enact legislation. Often shortened to concilium. See PLEBISCITUM. Cf. comitia tributa under COMITIA. "Legislation was carried on to some extent by the Comitia Tributa and in an increasing degree by the assembly of the plebs alone, concilium plebis, which, in historical times, was also based on the tributal organisation. This assembly, presided over by a tribune of the plebs, was active from early times and there was early legislation on constitu tional questions, enacted by that body and approved by the Senate, which was regarded as binding on the whole community. Its enactments, plebiscita, were often called, as binding the whole community, leges. .." W.W. Buckland, A Text-Book of Roman Law from Augustus to justinian 4 (Peter Stein ed., 3d ed. 1963). 'The pressure of plebeian agitation had led to the creation of tribunes of the plebs (494 B.C.) for the protection of individual citizens from oppreSSion, with the right to hold meetings of an assembly called the Concilium Plebis, which eventually became identical with the Comitia Tributa, except that it comprised only the plebeian members of the Roman people, without the patricians. The resolutions of this assembly (plebiscita) at first bound the plebeians only, but by an obscure development culminating in the passing of the Lex Hortensia of 287 B.C., they came to be binding as laws on the whole people, patricians and plebeians alike." William A. Hunter, Introduction to Roman Law 16 (F.H. Lawson ed., 9th ed. 1934). concilium regis (k;:Jn-sU-ee-;:Jm ree-jis). [Latin "assembly ofthe king"] Hist. A tribunal that, during the reigns of Edward I and Edward II, heard cases ofextraordinary difficulty. concord conclude, vb. (16c) l. To ratify or formalize (a treaty, convention, or contract) <it can be difficult to amend a contract that the parties have already concluded>. 2. To bind; estop <the admissions concluded the party as a matter oflaw>. 3. Scots law. To sign (a contract, letter, etc.) for the sale of real property. _ This term most commonly appears in the phrase conclude missives. conclusion, n. (l4c) 1. The final part ofa speech or writing (such as a jury argument or a pleading). 2. A judgment arrived at by reasoning; an inferential statement. 3. The clOSing, settling, or final arranging ofa treaty, contract, deal, etc. See OPINION (2).4. Archaic. An act by which one estops oneself from doing anything inconsistent with the act. 5. See OPINION (3). "Conclusion is, when a man by his own act upon record hath charged himself with a duty or other thing .... So if the sheriff, upon a capias to him directed, returns that he hath taken the body, and yet hath not the body in court at the day of the return, he shall be amerced ...." Termes de la Ley 102-03 (lst Am. ed. 1812). conclusional, adj. See CONCLUSORY. conclusionary, adj. See CONCLUSORY. conclusion offact. (ISc) A factual deduction drawn from observed or proven facts; an evidentiary inference. Cf. FINDING OF FACT. conclusion oflaw. (17c) An inference on a question of law, made as a result of a factual showing, no further evidence being required; a legal inference. Cf. FINDING OF FACT; LEGAL CONCLUSION. conclusion to the country. Archaic. The closing part of a pleading that requests the trial of an issue by a jury. Cf. GOING TO THE COUNTRY. conclusive, adj. 07c) Authoritative; decisive; convinc ing <her conclusive argument ended the debate>. Cf. CONCLUSORY. conclusive evidence. See EVIDENCE. conclusive presumption. See PRESUMPTION. conclusive proof. See conclusive evidence (1) under EVIDENCE. conclusory (bn-kloo-za-ree or -s;l-ree), adj. (1923) Expressing a factual inference without stating the underlying facts on which the inference is based <because the plaintiff's allegations lacked any support ing evidence, they were merely conclusory>. -Also termed conclusional; conclusionary. Cf. CONCLUSIVE. concomitant (k;ln-kom-a-tant), adj. (17c) Accompany ing; incidental <concomitant actions>. -concomi tant, n. concomitant evidence. See EVIDENCE. concord (kon-kord or kong-), n. (14c) 1. An amicable arrangement between parties, esp. between peoples or nations; a compact or treaty. 2. Archaic. An agreement to compromise and settle an action in trespass. "Concord is an Agreement made between two or more, upon a Trespass committed; and is divided into Concord executory, and Concord executed . .. one binds not, as being imperfect, but the other is absolute, and ties the Party." GilesJacob, A New Law-Dictionary (8th ed. 1762). 330 concordat 3. Archaic. An in-court agreement in which a person who acquired land by force acknowledges that the land in question belongs to the complainant. See DEFORCE. "Next comes the concord. or agreement itself. after leave obtained from the court; which is usually an acknowledg ment from the deforciants (or those who keep the other out of possession) that the lands in question are the right of the complainant." 2 William Blackstone. Commentaries on the Laws of England 350 (1766). 4. Rist. The settlement of a dispute. final concord. A written agreement between the parties to an action by which they settle the action in court, with the court's permission. Also termed finalis concordia;final peace. concordat (kon-or k;m-kor-dat). 1. An agreement between a government and a church, esp. the Roman Catholic Church. [Cases: Religious Societies

1. An agreement between a government and a church, esp. the Roman Catholic Church. [Cases: Religious Societies C=29.] "The qual ification of a treaty as a concordat depends only upon its object and purpose, not upon the name or outward form chosen by the parties. Although the term originally was also used for treaties between States. it has increas ingly become restricted to only those treaties concluded with the Holy See." Heribert Franz Kock, "Concordats," in 1 Encyclopedia of Public International Law 164 (1992). 2. Rist. Eccles. law. An agreement between ecclesiasti cal persons concerning a benefice, such as a resignation or promotion. See BENEFICE. 3. An agreement between secular persons or entities. concordatory (k;m-kor-d<l-tor-ee), adj. Of or relating to a concordat, esp. one between church and state in France. Concordia discordantium canonum (kon-kor-dee-<l dis kor-dan-shee-am k<l-nohn-<lm). [Latin "the harmony of the discordant canons"] Rist. A collection of eccle siastical authorities compiled by Gratian, an Italian monk, ca. 1140. Gratian analyzed questions oflaw by drawing conclusions from side-by-side compari sons of a variety of texts. Later canonist scholarship usu. proceeded from Gratian's work. Also termed Decretum Gratiani; Decretum. "Another body ofjurisprudence was coming into being. From humble beginnings the canon law had grown into a mighty system. Already it asserted its right to stand beside or above the civil law. The civil law might be the law of earth, ius soli; here was the law of heaven, ius poli. ... Many men had been endeavouring to state that law, but the fame of earlier labourers was eclipsed by that of Gratian. A monk of Bologna, that city which was the centre of the new secular jurisprudence, he published ... a book which he called Concordia discordantium canonum, but which was soon to become for all mankind simply the Decretum Cratiani, or yet more simply the Decretum. It is a great law-book. The spirit which animated its author was not that of a theologian. not that of an ecclesiastical ruler, but that of a lawyer .... The Decretum soon became an authorita tive text-book and the canonist seldom went behind it.... The canonist had for it rather that reverence which English lawyers have paid to Coke upon Littleton ...." 1 Frederick Pollock & Frederic W. Maitland, The History ofEnglish Law Before the Time ofEdward 1112-13 (2d ed. 1898). concourse (kon-kors orkong-). Scots law. 1. The simulta neous existence oftwo actions based on the same facts, esp. a civil action and a criminal action; the concur rence ofa public prosecutor in a private prosecution. 2. The concurrence ofthe public prosecutor to a criminal prosecution by a private person. "A private party may prosecute for the punishment of an offence perpetrated against himself, and for which the public prosecutor may refuse to prosecute at the public expense; but the concourse of the public prosecutor IS nec essary, and it cannot be refused; or if refused, the case may proceed at the instance of the private party. Concourse is distinguished from Instance. In the former case the public prosecutor merely concurs or consents, whilst in the latter case he is also a principal party prosecuting for the public interest." Hugh Barclay, A Digest of the Law of Scotland 162 (3d ed. 1865). 3. A conflict among creditors or claimants. See CON CURSUS (1). concubinage (kon-kyoo-ba-nij), n. (14c) 1. The relation ship of a man and woman who cohabit without the benefit ofmarriage. [Cases: Marriage 22,40(4).] 2. The state of being a concubine. 3. Hist. A plea in a dower action made by a defendant who asserts that the plaintiff is the defendant's concubine rather than wife. "Concubinage, in common Acceptation is the Keeping of a Whore or Concubine: But in a legal Sense, it is used as an Exception against her that sueth for Dower, alledging thereby that she was not a Wife lawfully married to the Party, in whose Lands she seeks to be endowed, but his Concubine." Giles Jacob, A New LawDictionar-y(8th ed. 1762). concubinatus (kon-kyoo-bi-nay-tas), n. [Latin "con cubinage"] Roman law. A permanent, monogamous union of a man and a woman who are not legally married. Concubinatus was not prohibited by law, but carried fewer benefits than a legal marriage. Cf. JUSTAE NUPTIAE. "[C]oncubinage (concubinatus) ... was something to which we have no precise analogue in modern law, for. so far from being prohibited by the law. it was regulated thereby. being treated as a lawful connexion. It is almost a sort of unequal marriage (and is practically so described by some of the jurists) existing between persons of different station the man of superior rank. the woman ofa rank so much inferior that it is not to be presumed that his union with her was intended to be a marriage." James 8ryce, "Marriage and Divorce under Roman and English Law," in 3 Select Essays in Anglo-American Legal History 806-07 (1909). concubine (kong-kY<l-bm). 1. Archaic. A woman who cohabits with a man to whom she is not married . A concubine is often considered a wife without title. A concubine's status arises from the permanent cohab itation of a man and a woman as husband and wife although without the benefit ofmarriage. Cf. common law wife under WIFE; COURTESAN. [Cases: Marriage 54(1).]2. Rist. Eccles. law. A secondary or inferior wife, usu. in a polygamous marriage, who lacks the full rights and privileges of the first wife . Although a concubine was expected to serve all the functions of a legitimate wife, she had no authority in the family or household, and was denied certain legal protections. For instance, her husband could easily disown she had no dower rights, and her children could not inherit from their father ifhe had children by his first wife. A concubine was also barred from certain spiritual comforts, such as churching after the birth of a child. 331 concubitor (bn-kyoo-bi-tohr), n. One who keeps a con cubine. concur (ko:ln-kar), vb. (15c) 1. To agree; to consent. 2. In a judicial opinion, to agree with the judgment in the case (usu. as expressed in the opinion ofanother judge), or the opinion ofanother judge, but often for different reasons or through a different line ofreasoning. 3. (Of a house in a bicameral legislature) to accept an amend ment passed by the other house. "When a bill has been amended in the second house and passed with the amendment, it is returned by that house to the house of its origin with a message stating the facts and requesting the house where the bill originated to concur in the amendment," National Conference of State Legisla tures, Mason's Manual of Legislative Procedure 766, at 553 (2000). 4. Civil law. To join with other claimants in presenting a demand against an insolvent estate. concurator (kon-or bn-kyuur-o:l-to:lr). Civil law. A joint guardian or co-curator. See CURATOR. concurrence. (15c) 1. Agreement; assent. 2. A vote cast by a judge in favor of the judgment reached, often on grounds differing from those expressed in the opinion or opinions explaining the judgment. 3. A separate written opinion explaining such a vote. -Also termed (in sense 3) concurring opinion. [Cases: Courts C=108.] 4. Acceptance by one house in a bicameral legislature ofan amendment passed by the other house. concurrency, n. 1. Archaic. The quality or fact ofbeing concurrent in jurisdiction; joint right or authority. 2. Criminal procedure. An identical duration for two or more criminal sentences assessed against the same defendant. concurrent, adj. (l4c) 1. Operating at the same time; covering the same matters <concurrent interests>. 2. Having authority on the same matters <concurrent jurisdiction>. [Cases: Courts 489,510; Federal Courts <::::=> 1131.] concurrent cause. See CAUSE (1). concurrent condition. See CO!'lDITIO!'l (2). concurrent consideration. See CONSIDERATION (1). concurrent covenant. See COVE!'lANT (1). concurrent estate. See ESTATE (1). concurrent finding. See FINDING OF FACT. concurrent interest. See concurrent estate under ESTATE (1 ). concurrent jurisdiction. See JURISDICTION. concurrent lease. See LEASE. concurrent lien. See LIEN. concurrent negligence. See NEGLIGENCE. concurrent policy. See INSURANCE POLICY. concurrent power. See POWER (3). concurrent registration. Trademarks. The approved recording of identical or similar marks by multiple owners ifeach mark was commercially used before the condedit owners applied for registration and the risk ofconsumer confusion is slight. The U.S. Patent and Trademark Office may impose restrictions on each mark's use to prevent consumer confusion. [Cases: Trademarks 1247,1288.] concurrent remedy. See REMEDY. concurrent representation. See REPRESE!'lTATIO!'l (2). concurrent resolution. See RESOLUTION (1). concurrent-sentence doctrine. (1969) The principle that an appellate court affirming a conviction and sentence need not hear a challenge to a conviction on another count if the conviction on the other count carries a sentence that is equal to or less than the affirmed con viction. [Cases: Criminal Law C':::;) 1177.3(l).] concurrent sentences. See SENTENCE. concurrent tortfeasors. See TORTFEASOR. concurrent writ. See WRIT. concurring opinion. See CONCURRENCE (3). concurso (kon-or ko:ln-kar-soh), n. [Latin lit. "to run hither and thither"] Civil law. An action in which a creditor seeks to enforce a claim against an insolvent debtor. concursus (kon-or k"n-kar-so:ls). [Latin "a running together"] 1. Civil & Scots law. A proceeding in which two or more creditors claim, usu. adversely to each other, an interest in a fund or estate so that they can sort out and adjudicate all the claims on the fund. See CONCOURSE (3). 2. Civil law. INTERPLEADER. 3. Eccles. law. An examination to determine a person's fitness for parochial office. concursus debit; et crediti (bn-kar-so:ls deb-i-tI et cred i-U). [Law Latin] Scots law. A running together ofdebt and credit. .1he phrase appears in reference to require ments for supporting a plea ofcompensation. "Concursus debiti et crediti .... This is necessary to found a plea of compensation, for the parties must be debtor and creditor, each in his own right and at the same time. Thus, if A sue B for payment of a debt due by him, B may plead in compensation a debt due to him by A, and here there is the necessary concurrence. But, if the firm of which A is a partner suing B for a debt due by him to them, be met by the plea of compensation by B, on the ground of a private debt due by A, the plea will not be sustained, for there is no concursus; a company being regarded by the law as a separate person." John Trayner, Trayner's Larin Maxims 88-89 (4th ed. 1894). concursus in delicto (kon-or bn-br-s;Js in d"-lik-toh). [Latin] Cooperation in crime. concussio (ko:ln-bsh-ee-oh), n. [Latin] Roman law. The offense ofextorting money or gifts by threat ofviolence. In modern civil-Jaw contexts, the term is often angli cized to concussion. -concuss, vb. concussionary. Archaic. A person who extorts from others under guise of authority; one who practices concussion. condedit (ko:ln-dee-dit or -ded-it). [Latin "he made (a will)"] Eccles. law. A defensive plea filed by a party in response to an ecclesiastical- court libel (Le., complaint) 332 condemn questioning the veracity ofa will or the competency of the testator. -Also spelled condidit. condemn, vb. (14c) 1. To judicially pronounce (someone) guilty. 2. To determine and declare (property) to be assigned to public use. See EMINENT DOMAIN. 3. To adjudge (a building) as being unfit for habitation. 4. To adjudge (food or drink) as being unfit for human consumption. 5. Maritime law. To declare (a vessel) to be forfeited to the government, to be a prize, or to be unfit for service. condemnation (kon-dem-nay-shan), n. (14c) 1. The act ofjudicially pronouncing someone guilty; conviction. 2. The determination and declaration that certain property (esp. land) is assigned to public use, subject to reasonable compensation; the exercise of eminent domain by a governmental entity. See EMINENT DOMAIN. excess condemnation. (1921) A taking ofland in excess

entity. See EMINENT DOMAIN. excess condemnation. (1921) A taking ofland in excess ofthe boundaries ofthe public project as designed by the condemnor. [Cases: Eminent Domain (;:::058.] inverse condemnation. (1932) An action brought by a property owner for compensation from a governmen tal entity that has taken the owner's property without bringing formal condemnation proceedings. Also termed constructive condemnation; reverse condem nation. [Cases: Eminent Domain quick condemnation. (1918) The immediate taking of possession of private property for public use, whereby the estimated compensation is depOSited in court or paid to the condemnee until the actual amount of compensation can be established. -Also termed quick-take. [Cases: Eminent Domain 188.) 3. An official pronouncement that a building is unfit for habitation; the act of making such a pronounce ment. 4. The official pronouncement that a thing (such as food or drink) is unfit for use or consumption; the act of making such a pronouncement. [Cases: Health (;:::0392.]5. Maritime law. The declaration that a vessel is forfeited to the government, is a prize, or is unfit for service. condemnation blight. 1. The reduction in value that the property targeted for condemnation suffers in antici pation of the taking. 2. The physical deterioration of property targeted for condemnation in anticipation of the taking. [Cases: Eminent Domain (;:::0 124.] condemnation money. (18c) 1. Damages that a losing party in a lawsuit is condemned to pay. 2. Compensa tion paid by an expropriator ofland to the landowner for taking the property. condemnatory (kan-dem-n;}-tor-ee), adj. (16c) 1. Con demning; expressing condemnation or censure. 2. Of or relating to the use ofeminent domain or expropria tion. condemnee (kon-dem-nee). (1890) One whose property is expropriated for public use or taken by a public works project. condemnor (kon-dem-nor or bn-dem-nar). (1890) A person or entity that expropriates property for public use. Also spelled condemner (kan-dem-nar). condensate. See DISTILLATE (1). condescendence (kon-di-sen-d;mts), n. Scots law. A statement of facts in a civil pleading, set out in consec utively numbered paragraphs, that the claimant relies on to justify the claim. condictio (k;m-dik-shee-oh), n. [fro Latin condicere "to demand back"] Roman & civil law. A personal action in the nature of demanding something back; an action ofdebt. -In the sense here used, debt must be under stood broadly to cover not only contractual but also quasi-contractual or tort claims. Condictio is usu. founded on an obligation to give or do a certain thing or service. -Also termed condiction; action ofdebt. Pl. condictiones (kan-dik-shee-oh-neez). -condictitious, condictious adj. "Condiction was a form of legal procedure ... first applied to the recovery of a loan of a definite sum of money, and afterwards applied to a loan of other things ('fungibles') where the return of the loan was required in quantity and quality, but not the identical things; in fact, where the borrower undertook to repay not thiS, but so much of the article and quality received. When condiction was applied to such things, it was said to be called triticaria ('relating to wheat') from one of the most important subjects, but this action (condictio triticaria) was afterwards extended so as to include all cases where things certain, other than coined money, were redemanded. In practice the term triticaria was not used, or Justinian has cut it out." 2 Henry John Roby, Roman Private Law 76 (1902). "The principal actio stricti juris was the condictio, a general term with many applications. It might be brought for a certain sum of money (condictio certae pecuniae), or for some other certain thing (condictio triticaria), or to assert an illiquid claim (condictio incerti). The various forms of condictio were also distinguished according to the cause which gave rise to them, as condictio furtiva, condictio indebiti, and others ...." R.W. Lee, The Elements of Roman Law 435 (4th ed. 1956). condictio causa data, causa non secuta (k,m-dik shee-oh kaw-za day-ta, kaw-za non is-kyoo-t~). [Latin "claim for recovery, consideration having been given but consideration not having followed"] Roman & civil law. An action for recovery ofmoney paid when the consideration for the payment has not been fur nished. The classic case in Scotland concerned an advance payment for ship's engines: war broke out, the engines were requisitioned but never supplied, and the payment was held to be recoverable. PI. con dictiones causa data, causa non secuta. condictio cert; (bn-dik-shee-oh S3r-tr). [Latin "claim for recovery of a certain sum or thing"] An action based on a promise to do a thing, where the promise is certain. condictio ex causa furtiva (bn-dik-shee-oh eks kaw-za f;}r-tJ-va). See condictia rei furtivae. condictio ex lege (bn-dik-shee-oh eks lee-jee). [Latin "claim for recovery under a statute"] An action arising where a statute creates an obligation but provides no remedy. condictio furtiva (kcm-dik-shee-oh fdr-tI-vd). See con dictio reifurtivae. condictio incerti (kdn-dik-shee-oh in-Sdr-tI). [Latin "claim for recovery of an uncertain amount"] An action to recover an uncertain amount. condictio indebiti (kan-dik-shee-oh in-deb-a-tr). [Latin "claim for recovery of something not due"] An action to prevent the unjust enrichment ofa defendant who had received money or property from the plaintiff by mistake. -Also termed actio condictio indebiti (though strictly speaking this is a solecism). condictio ob rem dati, re non secuta (kan-dik-shee-oh ahb rem day-tI, ree non si-kyoo-t.:l). [Latin "personal claim based on a transfer made for a purpose that has failed"] Roman law. A condiction for something handed over for a purpose that has failed, as for the settlement ofa lawsuit when in fact the lawsuit has nevertheless continued. condictio ob turpem vel injustam causam (kan-dik shee-oh ahb tdr-p.:lm vel in-jds-t.:lm kaw-z.:lm). [Latin "personal claim based on an immoral or illegal cause"] Roman law. A personal claim by an innocent party to recover money or property paid for an immoral or illegal purpose. -Sometimes shortened to condictio ob turpem causam. "The condictio ob turpem vel iniustCim CCiusam lay where the payment or conveyance had been made for an immoral or illegal purpose (e.g. to induce the recipient not to commit a crime, or to return what he had borrowed and was wrongfully refusing to return). But the plaintiff must not be equally tainted by the 'turpitude,' as he would be, for example, if the payment had been made to induce the recipient to commit a crime." Barry Nicholas, An Introduc tion to Roman Law 230 (1962). condictio rei furtivae (k<'ln-dik-shee-oh ree-I f.:lr-tI vee). [Latin "claim for recovery ofa stolen thing"] An action to recover a stolen thing or its value ifthe thing could not be returned. - A condictio rei furtivae could be brought by an owner or pledgee against the thief or the thief's heirs. -Also termed condictio furtiva; condictio ex causa furtiva. condictio sine causa (bn-dik-shee-oh sl-nee kaw-zd). [Latin "claim for recovery of money or a thing given without consideration"] An action for the recovery ofproperty transferred without consideration and in contemplation of a specific event that did not occur, such as a dowry made in view of a marriage that does not take place. condictio triticaria (bn-dik-shee-oh trr-ti-kair-ee-.:l). [Latin "claim for recovery of wheat"] An action for the recovery of a specified quantity of a named com modity. condidit. See CONDEDIT. condign justice. See JUSTICE (1). conditio (kan-dish-ee-oh). [Latin] A condition. conditio sine qua non. See SINE QUA NON. conditio si sine liberis decesserit (k.:ln-dish-ee-oh 81 sl-nee lib-dr-is di-ses-dr-it). [Latin "the condition ifhe should have died childless"] Roman law. An express or implied clause in a will providing that ifthe heir or legatee dies childless, the property is to go to another person, such as the testator's own descendants. condition, n. (14c) 1. A future and uncertain event on which the existence or extent of an obligation or lia bility depends; an uncertain act or event that triggers or negates a duty to render a promised performance. -For example, ifJones promises to pay Smith $500 for repairing a car, Smith's failure to repair the car (an implied or constructive condition) relieves Jones of the promise to pay. [Cases: Contracts C=)218-227.] "'Condition' is used in this Restatement to denote an event which qualifies a duty under a contract. It is recognized that 'condition' is used with a wide variety of other meanings in legal discourse. Sometimes it is used to denote an event that limits or qualifies a transfer of property. In the law of trusts, for example, it is used to denote an event such as the death of the settlor that qualifies his disposition of property in trust. Sometimes it is used to refer to a term in an agreement that makes an event a condition, or more broadly to refer to any term in an agreement (e.g., 'standard conditions of sale'). For the sake of precision, 'condition' is not used here in these other senses." Restate ment (Second) of Contracts 224. cmt. a (1981). "Strictly, a condition is a fact or event on the occurrence of which some legal right or duty comes into existence; a party may promise that this fact is so, or that the event will take place, but it is equally possible that no party to the contract promises this. An insurance company promises to pay 10,000 to an insured person if his house is destroyed by fire; the destruction of the house by fire is a condition of the insurer's promise to pay, but neither party promises to burn the house." P.S. Atiyah, An Introduction to the Law of Contract 146 (3d ed. 1981). "Promises and the duties they generate can be either unconditional (,I promise to pay you $100,000') or condi tional ('I promise to pay you $100,000 if your house burns down'). Lawyers use condition in several senses. Sometimes they use it to refer to the term in the agreement that makes the promise conditional. ... However, lawyers also use condition to refer to an operative fact rather than to a term. According to the Restatement Second a condition is 'an event, not certain to occur, which must occur, unless occur rence is excused, before performance under a contract becomes due.' This use of the word has the support of leading writers." E. Allan Farnsworth, Contracts 8.2, at 519-20 (3d ed. 1999). 2. A stipulation or prerequisite in a contract, will, or other instrument, constituting the essence of the instrument. _ If a court construes a contractual term to be a condition, then its untruth or breach will entitle the party to whom it is made to be discharged from all liabilities under the contract. [Cases: Contracts 2l8-227; Wills C=>639-668.] affirmative condition. See positive condition. casual condition. Civil law. A condition that depends on chance; one that is not within the power of either party to an agreement. collateral condition. A condition that requires the per formance of an act haVing no relation to an agree ment's main purpose. compulsory condition. (1876) A condition expressly requiring that a thing be done, such as a tenant's paying rent on a certain day. 334 condition concurrent condition. (1840) A condition that must occur or be performed at the same time as another condition, the performance by each party separately operating as a condition precedent; a condition that is mutually dependent on another, arising when the parties to a contract agree to exchange performances simultaneously. -Also termed condition concurrent. [Cases: Contracts "Conditions concunent are acts that the parties to a contract are under duties of performing concurrently, the act of each party being separately operative as a condition precedent. The act is not concurrent with the legal relation affected, but only with the act of the other party." William R. Anson, Principles ofthe Law ofContract 412-13 (Arthur L Corbin ed., 3d Am. ed. 1919). condition implied by law. See constructive condition. condition implied in law. See constructive condition. condition precedent (pr<l-seed-;mt also pres-a-dant). (1818) An act or event, other than a lapse oftime, that must exist or occur before a duty to perform some thing promised arises . Ifthe condition does not occur and is not excused, the promised performance need not be rendered. The most common condition contemplated by this phrase is the immediate or

not excused, the promised performance need not be rendered. The most common condition contemplated by this phrase is the immediate or unconditional duty of performance by a promisor. [Cases: Contracts C=:c221.] "Before one gets too confused by the precedent and sub sequent classifications, it might be helpful to know that in contract law there is no substantive difference between the two.... However, in the area of pleading and procedure significance may be placed upon the difference between a condition precedent and subsequent in terms of who has the burden of pleadi ng and proof, the party seeking to enforce the promise usually being required to plead and prove a condition precedent and the party seeking to avoid liability for breach of promise sometimes being required to plead and prove the occurrence of the condi tion subsequent that would terminate his duty." Claude Rohwer & Gordon D. Schaber, Contracts in a Nutshell 313 (4th ed. 1997). condition subsequent. (1818) A condition that, if it occurs, will bring something else to an end; an event the existence of which, by agreement of the parties, discharges a duty of performance that has arisen. [Cases: Contracts C=>226.] "If ... the deed or will uses such words as 'but if,' 'on condition that,' 'provided, however,' or 'if, however,' it will generally be assumed that a condition subsequent was intended." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 50 (2d ed. 1984). constructive condition. A condition contained in an essential contractual term that, though omitted by the parties from their agreement, a court has supplied as being reasonable in the circumstances; a condition imposed by law to do justice. The cooperation of the parties to a contract, for example, is a construc tive condition. Also termed implied-in-law condi tion; condition implied by law; condition implied in law. Cf. implied-in-fact condition. [Cases: Contracts ~220.] "[C]onstructive conditions are imposed by law to do justice.... The dividing line between an express con dition ... and constructive conditions is often quite indistinct. Yet, the distinction is often of crucial impor' tance. The general rule governing an express condition is that it must be strictly performed. The general rule as to constructive conditions is that substantial compliance is sufficient." John D. Calamari &Joseph M. Perillo, The Law ofContracts 11.8, at 402 (4th ed. 1998). copulative condition (kop-Y<l-l<l-tiv or -lay-tiv). A con dition requiring the performance of more than one act. Cf. disjunctive condition; single condition. dependent condition. A mutual covenant that goes to the consideration on both sides ofa contract disjunctive condition. A condition requiring the per formance ofone of several acts. Cf. copulative condi tion; single condition. dissolving condition. See resolutory condition. express condition. (16c) 1. A condition that is the mani fested intention ofthe parties. [Cases: Contracts 219.] "[E]xpress conditions ... are conditions created through the agreement of the parties. This is so whether the inten tion to have the duty subject to a condition be manifested in words, or through any other conduct or type of utter ance." John Edward Murray Jr., Murray on Contracts 143, at 290 (2d ed. 1974). precondition. A stipulated act or event that must occur before either party to a contract will be bound by the contract; a prerequisite. [Cases: Contracts C=: 221.] 2. A condition that is explicitly stated in an instru ment; esp., a contractual condition that the parties have reduced to writing. [Cases: Contracts (;:::::>218.] implied condition. (17c) A condition that is not expressly mentioned, but is imputed by law from the nature of the transaction or the conduct of the parties to have been tacitly understood between them as a part of the agreement. See constructive condi tion; implied-in-fact condition. [Cases: Contracts 220.] implied-iniact condition. A contractual condition that the parties have implicitly agreed to by their conduct or by the nature ofthe transaction. Cf. constructive condition. [Cases: Contracts ~220.] implied-in-law condition. See constructive condition. inherent condition. A condition that is an intrinsic part of an agreement; a condition that is not newly imposed but is already present in an agreement. lawful condition. A condition that can be fulfilled without violating the law. mixed condition. Civil law. A condition that depends either on the will ofone party and the will of a third person, or on the will of one party and the happening ofa causal event. negative condition. (17c) A condition forbidding a party from doing a certain thing, such as prohibiting a tenant from subletting leased property; a promise not to do something, usu. as part of a larger agree ment. See negative easement under EASEMENT. Also termed restrictive condition. 335 positive condition. A condition that requires some act, such as paying rent. Also termed affirmative con dition. potestative condition (poh-tes-td-tiV). Civil law. A condition that will be fulfilled only if the obligated party chooses to do so. _ Louisiana no longer uses this term, instead providing that this type of condi tion will render the obligation null. La. Civ. Code art. 1770. Cf. suspensive condition; resolutory condition. [Cases: Contracts (;:::;, 10.] preexisting condition. Insurance. A physical or mental condition evident during the period before the effec tive date of a medical-insurance policy. _ Typically, coverage for later treatment for such a condition is excluded if symptoms of the condition were present during the period before the policy was effective. [Cases: Insurance promissory condition. A condition that is also a promise. "The distinction between a condition which is also a promise, and a condition which is not the subject of a promise, is often one of great difficulty and importance, especially where the term is implied and not expressed, and it is unfortunate that legal usage has sanctioned the word 'condition' for two such different concepts. It would at least be desirable if lawyers could be persuaded to refer to conditions which are the subject of a promise as 'prom issory conditions', a usage which it is proposed to adopt here." P.S. Atiyah, An Introduction to the Law of Contract 147 (3d ed. 1981). resolutory condition (rd-zol-y;Hor-ee). Civil law. A condition that upon fulfillment terminates an already enforceable obligation and entitles the parties to be restored to their original positions. Also termed resolutive condition; dissolving condition. Cf. potestat ive condition. restrictive condition. See negative condition. single condition. A condition requiring the perfor mance of a specified thing. Cf. copulative condition; disjunctive condition. suspensive condition. Civil law. A condition that makes an obligation mandatory only if a specified but uncer tain event occurs. Cf. potestative condition. [Cases: Contracts testamentary condition. A condition that must be sat isfied before a made in a will becomes effective. [Cases: Wills "r'~V.U- triggering condition. A circumstance that must exist before a legal doctrine applies; esp., in criminal law, a circumstance that must exist before an actor will be entitled to a justification defense. unlawful condition. A condition that cannot be ful filled without violating the law. 3. Loosely, a term, provision, or clause in a contract. [Cases: Sales 85(1); Vendor and Purchaser 'This term condition is generally used to describe any fact, subsequent to the formation of a contract, which operates to make the duty of a promisor immediately active and compelling. Such a fact may be described as such in a term of the contract or it may not. In either event, the term of conditional fee agreement the contract should not itself be called the condition . ... It is not uncommon, popularly, to speak of a condition of the contract as synonymous with term or provision of the contract. This should be avoided." William R. Anson, Principles of the Law ofContract 226 n.l (Arthur L. Corbin ed., 3d Am. ed. 1919). 'The word 'condition' is used in the law of property as well as in the law of contract and it is sometimes used in a very loose sense as synonymous with 'term,' 'provision,' or 'clause.' In such a sense it performs no useful service." Id. at 409. 4. A qualification attached to the conveyance of property providing that if a particular event does or does not take place, the estate will be created, enlarged, defeated, or transferred. 5. A state of being; an essential quality or status. -condition, vb. artificial condition. A physical characteristic of real property, brought about by a person's affirmative act instead ofby natural forces. dangerous condition. (1850) 1. A property defect creating a substantial risk of injury when the property is used in a reasonably foreseeable manner. _ A dan gerous condition may result in waiver of sovereign immunity. [Cases: Automobiles Municipal Corporations (;:::;,847; Negligence 1086.] 2. A property risk that children, because oftheir immatu rity, cannot appreciate or avoid. Cf. attractive nuisance under NUISANCE. [Cases: Negligence (;:::;, 1016, 1067.] conditional, adj. Subject to or dependent on a condition <a conditional sale>. conditional acceptance. See ACCEPTANCE (4). conditional adjournment. See ADJOURNMENT. conditional admissibility. See ADMISSIBILITY. conditional assault. See ASSAULT, conditional assignment. See ASSIGNMENT (2). conditional bequest. See BEQUEST. conditional contraband. See CONTRABAND. conditional contract. See CONTRACT. conditional conveyance. See CONVEYANCE. conditional covenant. See COVENANT (1). conditional creditor. See CREDITOR. conditional delivery. See DELIVERY. conditional devise. See DEVISE. conditional divorce. See conversion divorce under DIVORCE. conditional duty. See DUTY (1). conditional estate. See estate on condition under ESTATE (1). conditional fee. 1. Seefee simple conditional under FEE SIMPLE. 2. See CONTINGENT FEE. conditional fee agreement. English law. A contract between a lawyer and a client that provides for the lawyer to receive a fee only if the client wins the case. Unlike American contingent-fee arrangements, the lawyer does not receive a percentage of the damages awarded but instead charges the client a base fee plus a success which is usu. calculated as a percentage of up to 100% ofthe base fee. See success fee under HE (1). conditional guaranty. See GUARANTY. conditional indorsement. See INDORSEMENT. conditional judgment. See JUDGMENT. conditional legacy. See LEGACY. conditional limitation. See LIMITATION. conditionally privileged communication. See COMMU NICATION. condition'al obligation. See OBLIGATION. conditional pardon. See PARDON. conditional payment. See PAYMENT. conditional plea. See PLEA (1). conditional presumption. See rebuttable presumption under PRESUMPTION. conditional privilege. See qualified privilege under PRIV ILEGE (1). conditional promise. See PROMISE. conditional proof. See PROOF. conditional purpose. (16c) 1. An intention to do some thing, conditions permitting. 2. Criminal law. A possible defense against a crime ifthe conditions make committing the crime impossible (e.g., "I will steal the money if it's there," and the money is not there). conditional release. See RELEASE. conditional revocation. See DEPENDENT RELATIVE REVOCATION. conditional right. See RIGHT. conditional sale. See SALE. conditional sales contract. See retail installment contract under CONTRACT. conditional sentence. See SENTENCE. conditional use. See USE (1). conditional-use permit. See SPECIAL-USE PERMIT. conditional will. See WILL conditional zoning. See ZONING. condition concurrent. See concurrent condition under CONDITION (2). condition implied by law. See constructive condition under CONDITION (2). condition implied in law. See constructive condition under CONDITION (2). conditioning the market. See GUN-JUMPING. condition ofemployment. (1875) A qualification or cir cumstance required for obtaining or keeping a job. condition precedent. See CONDITION (2). conditions of sale. (16c) The terms under which an auction will be conducted . The conditions of sale are usu. placed in the auction room for public viewing before the sale. [Cases: Auctions and Auctioneers 7.] condition subsequent. See CONDITION (2). condominia (kon-d~-min-ee-~). Civil law. Coowner ships or limited ownerships . Condominia are con sidered part of the dominium ofthe property, and thus are more than mere rights in the property (Le., jure in re aliena); examples of condominia include emphy teusis, superficies, pignus, hypotheca, usufructus, usus, and habitatio. condominium (kon-d;:)-min-ee-;:)m). (1962) 1. Owner ship in common with others. 2. A Single real-estate unit in a multi-unit development in which a person has both separate ownership ofa unit and a common interest, along with the development's other owners, in the common areas. Cf. COOPERATIVE (2). PI. (for sense 2) condominiums. [Cases: Condominium "The condominium concept is not new, despite its rela tively recent introduction in the United States. Owner ship of individual units in buildings can be traced back to ancient Babyl

its rela tively recent introduction in the United States. Owner ship of individual units in buildings can be traced back to ancient Babylon; it was quite common in ancient Rome and in medieval Europe. The earliest condominium statute is Article 664 of the Code Napoleon of 1804, a very brief provision which was later substantially expanded. Condo minium statutes were adopted in most nations in Europe, and in Central and South America, before any were adopted in the United States." Roger A, Cunningham et al.. The Law of Property 2.2, at 34 n.26 (2d ed. 1993). 3. Joint sovereignty by two or more nations. 4. A politi cally dependent territory under such sovereignty. PI. condominia (senses 3 & 4). condonation (kon-dd-nay-shdn), n. (17c) 1. A victim's express or (esp.) implied forgiveness of an offense, esp. by treating the offender as ifthere had been no offense. Condonation is not usu. a valid defense to a crime. 2. One spouse's express or implied forgiveness of a marital offense by resuming marital life and sexual intimacy. For example, one spouse might impliedly forgive the other spouse's infidelity by continuing to live with him or her. Ifadultery is charged as a ground for divorce and condonation is proved, the forgiving spouse is barred from proofofthat offense. Cf. COLLUSION (2); CONNIV~ ANCE (2); RECRIMINATION (1); RECONCILIATION. [Cases: Divorce C:::>47.J condone (bn-dohn), vb. To voluntarily pardon or overlook (esp. an act ofadultery). -condonable (bn dohn-~-b;:)l), adj. conducere aliquidfaciendum (bn-d[y]oo-s;}-ree al-i kwid fay-shee-en-dam). [Latin] Roman law. To bind oneself to perform work for pay. Cf. LOCARE ALIQUID FACIENDUM. conducere aliquid utendum (kan-d[y]oo-sa-ree al-i-kwid yoo-ten-dam). [Latin] Roman law. To pay for the use of an object; to hire. Cf. LOCARE ALIQUID UTENDUM. conduct, n. (1Sc) Personal behavior, whether by action or inaction; the manner in which a person behaves . Conduct does not include the actor's natural death or a death that results from behavior consciously engaged in but not reasonably expected to have this result. conduct, vb. 337 "The word 'conduct' ... covers both acts and omissions.... In cases in which a man is able to show that his conduct, whether in the form of action or of inaction, was invol untary, he must not be held liable for any harmful result produced by it ...." j.W. Cecil Turner, Kenny's Outlines of Criminal Law 13 n.2, 24 (16th ed. 1952). active conduct. Behavior that involves a person doing something by exerting will on the external world. Cf. passive conduct. assertive conduct. (1968) Evidence. Nonverbal behavior that is intended to be a statement. such as pointing one's finger to identify a suspect in a police lineup. _ Assertive conduct is a statement under the hearsay rule, and' thus it is not admissible unless a hearsay exception applies. Fed. R. Evid. 801(a)(2). Also termed implied assertion. [Cases: Criminal Law 419(2.10); Evidence (~314(I).1 contumacious conduct (kon-t[y]oo-may-shds). A willful disobedience of a court order. See CONTU MACY. [Cases: Contempt (''::::.20.] disorderly conduct. (I7c) Behavior that tends to disturb the public peace, offend public morals, or undermine public safety. See BREACH OF THE PEACE. [Cases: Dis orderly Conduct ('..r~ 103, 105.] "At common law there was no offense known as disorderly conduct, although the offense of breaching the peace made many public disturbances criminal. In addition, this offense could be based on behavior that might cause another to respond in a violent manner even though the party gUilty of the breach of the peace acted quietly or secretly, as when a person challenged someone to a duel. The enactment of statutes making disorderly conduct punishable went beyond the commonlaw notion of a breach of the peace by including behavior that merely tended to disturb the safety, health, or morals of others or that was intended only to annoy another. Further definitions were added later." Francis Barry McCarthy, "Vagrancy and Disorderly Conduct," in 4 Encyclopedia ofCrime and Justice 1589, 1589 (Sanford H. Kadish ed., 1983). disruptive conduct. (1959) Disorderly conduct in the context of a governmental proceeding. See CONTEMPT. [Cases: Disorderly Conduct ~116.] nonassertive conduct. (1965) Evidence. Nonverbal behavior that is not intended to be a statement, such as fainting while being questioned as a suspect by a police officer. _ Nonassertive conduct is not a state ment under the hearsay rule, and thus it is admissible. Fed. R. Evid. 801. [Cases: Criminal LawC=A19(2.l0); Evidence ~314(1).J outrageous conduct. (I8c) Conduct so extreme that it exceeds all reasonable bounds ofhuman See EMOTIONAl. DISTRESS. [Cases: Damages passive conduct. Behavior that does not involve exerting will on the external world. Cf. active conduct. tortious conduct. An act or omission that subjects the actor to liability under the principles of tort law. unduly dangerous conduct. See unreasonably danger ous conduct. unprofessional conduct. (1836) Behavior that is immoral, unethical, or dishonorable, esp. when judged by the standards of the actor's profession. confarreatio unreasonably dangerous conduct. Conduct that involves undue risk under the circumstances. Sometimes shortened to dangerous conduct. Also termed unduly dangerous conduct. wrongful conduct. (1807) An act taken in violation ofa legal duty; an act that unjustly infringes on another's rights. -Also termed wrongful act. [Cases: Torts <> 107,218.] conductio (kan-d;}k-shee-oh), n. [Latin "a hiring"] Roman law. The hiring or leaSing of services or property. PI. conductiones (bn-ddk-shee-oh-neez). See locatio con ductio under LOCATIO. conduct money. See witness fee under FEE (1). conductor (kdn-d;}k-tdr or -tor), n. [Latin one who hires"] Roman law. 1. A lessee or a person who hires the services ofanother; a hirer. 2. A person hired to make a specific work; a contractor. - A contractor, esp. for the provision ofpublic services, was also called manceps or redemptor. See MANCEPS; LOCATOR (1). conductor operarum (bn-d;}k-tdr [or -tor] OP-d rair-dm). [Latin "a hirer oflabor"] Roman law. A person who hires another's labor, esp. manual labor, at a stated price; an employer. conductus (kdn-d<lk-tds), n. [fro Latin conducere "to hire"] Roman law. A person or thing hired by a conductor. conduit taxation. See pass-through taxation under TAXATION. confarreatio (kdn-far-ee-ay-shee-oh), n. [Latin] Roman law. A religiOUS ceremony used to wed members ofthe Patrician class in ancient Rome. -By this ceremony, the wife was brought into the husband's family and placed under the husband's protection (manus). See MANUS (1). Cf. COEMPTIO; USUS (3). PI. confarreationes (kdn far-ee-ay-shee-oh-neez). "Anciently, there were three modes in which marriage might be contracted according to Roman usage, one involv ing a religious solemnity, the other two the observance of certain secular formalities. By the religious marriage of Confarreation; by the higher form of civil marriage, which was called Coemption; and by the lower form, which was termed Usus, the Husband acquired a number of rights over the person and property of his wife, which were on the whole in excess of such as are conferred on him in any system of modern jurisprudence. But in what capacity did he acquire them? Not as Husband, but as Father. By the Confarreation, Coemption, and Usus, the woman passed in manum viri, that is, in law she became the Daughter of her husband. She was included in his Patria Potestas .... These three ancient forms of marriage fell, however, gradually into disuse, so that, at the most splendid period of Roman greatness, they had almost entirely given place to a fashion of wedlock -old apparently, but not hitherto considered reputable -which was founded on a modification of the lower form of civil marriage." Henry S. Maine, Ancient Law 149 (10th ed. 1884). "Confarreatio was a religious ceremony performed in the house of the bridegroom, to which the bride had been conveyed in the state, in the presence of at least ten wit nesses and the Pontifex Maximus, or one of the higher priests. A set form ofwords (carmen verba concepta) was repeated, and a sacred cake made of Far {faryeus panis} whence the term Confarreatio -was either tasted by or broken over the parties who sat during the performance of various rites, side by side, on a wooden seat made of an ox-yoke covered with the skin of the sheep which had previously been offered in sacrifice." William Ramsay, A Manual of Roman Antiquities 295 (Rodolfo Lanciani ed., 15thed.1894). confectio (k;m-fek-shee-oh), n. [Latin "a completing"] Hist. The act of making or executing a written instru ment. PI. confectiones (k;:m-fek-shee-oh-neez). confederacy, n. (14c) 1. A league of states or countries that have joined for mutual support or joint action; an alliance. 2. An association oftwo or more persons, usu. for unlawful purposes; CONSPIRACY. [Cases: Conspir acy(;:=>1.1,2,23.1,24.] 3. The fact or condition ofbeing allied or'associated. confederacy clause. Archaic. A clause in a complaint charging that the defendant or defendants have combined with others (who may yet be named as defen dants) to defraud or deprive the plaintiff of personal rights. confederate, n. An ally; esp., a coconspirator or accom plice. [Cases: Conspiracy (;:=>39; Criminal Law 59.] confederation. (15c) 1. A league or union of states or nations, each of which retains its sovereignty but also delegates some rights and powers to a central authority. The United States, for example, was first organized under the Articles of Confederation. Cf. FEDERATION. "A confederation is a union, more or less complete, oftwo or more states which before were independent. It ai ms to secure a common good, external, as mutual protection against powerful neighbors, or internal, as commerce and community ofjustice by means of common institutions." Theodore D. Woolsey, Introduction to the Study ofInterna tional Law 108, at 173 (5th ed. 1878), confederation ofstates. A confederation involving a central government that exists and exercises certain powers but does not control all the external relations of the member states . For international purposes there exists not one but a number ofstates. Cf. federal state under STATE, 2. An alliance; esp., in a negative sense, a conspiracy. conferee (kon-fdr-ee). See MANAGER (2). conference. 1. CONVENTION (3). 2. A meeting between the two houses of a bicameral legislature. See confer ence committee under COMMITTEE. [Cases: States C:::> 32; Statutes "It is proper for either house to request a conference with the other on any matter of difference or dispute between them, When a conference is requested, the subject of the conference should always be stated, One house may request a conference to inquire or protest concerning an offense or default on the part of a member or officer of the other house. When there is a question concerning procedure, or when an unparliamentary message has been sent. instead of replying directly, a conference shOUld be requested. When there are questions as to procedure between the two houses, the proper procedure is to discuss the matter by a conference committee; also, where one house desires to formally present a question to the other, the question should be submitted through a conference committee." National Conference of State Legislatures, Mason's Manual of Legislative Procedure 764, at 551 (2000). conference committee. See COMMITTEE. Conference ofChieOnstices. An organization consist ing of the highest judicial officers of all the states in the United States, the District of Columbia, the Com monwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and the territories of American Samoa, Guam, and the Virgin Islands . Established in 1949, the organization seeks to improve the administration ofjustice in various ways, as by sup porting adequate judicial funding, promoting the inde pendence and effectiveness of state judicial systems, and advancing professionalism and lawyer competence. Since 1983, the organization has operated as a nonprofit corporation. -Abbr. cq. confess, vb. To admit (an allegation) as

a nonprofit corporation. -Abbr. cq. confess, vb. To admit (an allegation) as true; to make a confession. confessor, n. confessed judgment. See CONFESSION OF JUDGMENT. confessing error. A plea admitting to an assignment of error. See ASSIGNMENT OF ERROR. confessio in judicio (k.::ln-fesh-ee-oh in joo-dish-ee-oh). [Latin "confession in court"] Hist. An in-court confes sion. confession, n. (14c) A criminal suspect's oral or written acknowledgment ofguilt, often including details about the crime. Cf. ADMISSION; STATEMENT (3). [Cases: Criminal Law (;:=>516.] "A confession is an acknowledgment in express words, by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it." 3 John H. Wigmore, Evidence in Trials at Common Law 821, at 308 Uames H. Chadbourn ed., 4th rev, ed, 1970). 'The distinction between admissions in criminal cases and confessions by the accused is the distinction in effect between admissions of fact from which the gUilt of the accused may be inferred by the jury and the express admission of guilt itself." William p, Richardson, The Law ofEvidence 394, at 268 (3d ed, 1928). coerced-compliant confession. A confession by a suspect who knows that he or she is innocent but is overcome by fatigue, the questioner's tactics, or a desire for some potential benefit. Also termed coerced-compliant false confeSSion. coerced confession. (1937) A confession that is obtained by threats or force. [Cases: Criminal Law 522.] direct confession. (17c) A statement in which an accused person acknowledges haVing committed the crime. extrajudicial confession. (1813) A confession made out ofcourt, and not as a part of a judicial examination or investigation . Such a confession must be cor roborated by some other proof of the corpus delicti, or else it is insufficient to warrant a conviction. Cf. judicial confession. implied confession. A confession in which the person does not plead guilty but invokes the mercy of the court and asks for a light sentence. indirect confession. A confession that is inferred from the defendant's conduct. interlocking confessions. (1973) Confessions by two or more suspects whose statements are substantially the same and consistent concerning the elements of the crime. [Cases: Criminal Law~528.] involuntary confession. (1830) A confession induced by the police or other law-enforcement authorities who make promises to, coerce, or deceive the suspect. [Cases: Criminal LawC='519-526.] judicial confession. (16c) A plea ofguilty or some other direct manifestation ofguilt in court or in a judicial proceeding. C. extrajudicial confession. naked confession. (I8c) A confession unsupported by any evidence that a crime has been committed, and therefore usu. highly suspect. [Cases: Criminal Law oral confession. A confession that is not made in writing. Oral confessions are admissible, though as a practical matter police interrogators prefer to take written or recorded confessions since juries typically view these as being more reliable. persuaded confession. A false confession by a suspect who has no knowledge ofa crime but adopts a belief in his or her guilt. plenary confession (plee-n;}-ree or plen-;}). (1907) A complete confession; one that is believed to be con clusive against the person who made it. relative confession. Hist. A confession ofgUilt coupled with an accusation against another person as a par ticipant in the crime . If the accusation against the other person was proved, the accusing defendant was pardoned. Ifnot, the defendant was convicted on the confession. See State v. Willis, 41 A. 820, 825 (Conn. 1898). See APPROVER (1). threshold confession. (1962) A spontaneous confession made promptly after arrest and without interroga tion by the police. The issue whether the defen dant's statement is a threshold confession usu. arises when the defendant challenges the admissibility of the confession on grounds that he or she suffered an impermissibly long delay before being brought before a magistrate. Courts generally admit this type of confession into evidence if the confession was given before the delay occurred. [Cases: Criminal Law C=' 519(3).] voluntary confession. A confession given freely, without any benefit or punishment promised, threatened, or expected. [Cases: Criminal Law C='517.1(1), 519(1).] confession and avoidance. (17c) A plea in which a defen dant admits allegations but pleads additional facts that deprive the admitted facts of an adverse legal effect. For example, a plea ofcontributory negligence (before the advent of comparative negligence) was a confes sion and avoidance. -Also termed avoidance; plea in confession and avoidance; plea ofconfession and avoid ance. Cf. affirmative defense under DEFENSE (1). [Cases: Federal Civil Procedure Pleading C::~130.] confession ofjudgment. (18c) 1. A person's agreeing to the entry ofjudgment upon the occurrence or non occurrence of an event, such as making a payment. [Cases: Federal Civil Procedure (,'-:::2396; Judgment C='29.] 2. A .judgment taken against a debtor by the creditor, based on the debtor's written consent. [Cases: Federal Civil Procedure C='2396: Judgment C='29-70.] 3. The paper on which the person so agrees, before it is entered. -Also termed confessed judgment; cognovit judgment; statement ofconfession; warrant ofconfession; judgment by confession. See COGNOVIT. Cf. WARRANT OF ATTORNEY. confidence. (14c) 1. Assured expectation; firm trust; faith <the partner has confidence in the associate's work>. 2. Reliance on another's discretion; a relation of trust <she took her coworker into her confidence>. 3. A com munication made in trust and not intended for public disclosure; sped., a communication protected by the attorney-client or similar privilege <the confidences between lawyer and client>. Under the ABA Code of Professional Responsibility, a lawyer cannot reveal a client's confidence unless the client consents after full disclosure. DR 4-101. Cf. SECRET (2). [Cases: Privileged Communications and ConfidentialityC=' 16, 156.J confide, vb. confidence game. (1856) A means of obtaining money or property whereby a person intentionally misrepre sents facts to gain the victim's trust so that the victim will transfer money or property to the person. Also termed con game; con. Cf. BUNCO. [Cases: False Pre tenses 16.] confidence man. One who defrauds a victim by first gaining the victim's confidence and then, through trickery, obtaining money or property; a swindler . The equivalent term confidence woman is exception ally rare, even though women are often involved in confidence games. Often shortened to con man. See CONFIDENCE GAME. Cf. BUNCO-STEERER. confidential, adj. 1. (Of information) meant to be kept secret <confidential settlement terms>. 2. (Of a rela tionship) characterized by trust and a willingness to confide in the other <a confidential relationship between attorney and client>. confidential adoption. See closed adoption under ADOPTION. confidential communication. See COMMUNICATION. confidentiality, n. (1834) 1. Secrecy; the state of having the dissemination ofcertain information restricted. 2. 1he relation between lawyer and client or guardian and ward, or between spouses, with regard to the trust that is placed in the one by the other. [Cases: Privileged Communications and Confidentiality 80, 156; Records confidentiality agreement. Trade secrets. A promise not to disclose trade secrets or other proprietary informa tion learned in the course of the parties' relationship. Confidentiality agreements are often required as a 340 confidentiality clause condition of employment. Also termed nondisclo sure agreement. confidentiality clause. See CLAL'SE. confidentiality statute. A law that seals adoption records and prevents an adopted chi ld from learning the identity ofhis or her biological parent and prevents the biologi cal parent from learning the identity of the adoptive parents. -Also termed sealed-record statute. confidential marriage. See MARRIAGE (1). confidential relationship. See RELATIONSHIP. confidential source. A person who provides information to a law-enforcement agency or to a journalist on the express or implied guarantee of anonymity. -Confi dentiality is protected both under the Federal Freedom oflnformation Act (for disclosures to law enforcement) and under the First Amendment (for disclosures to journalists). [Cases: Privileged Communications and Confidentiality (;:::>374,404; Records (;:::>60] confinee. A person held in confinement. confinement, n. (l6c) The act of imprisoning or restraining someone; the state of being imprisoned or restrained <solitary confinement>. See SOLITARY CON FINEMENT. -confine, vb. confirm, vb. 1. To give formal approval to <confirm the bankruptcy plan>. [Cases: Bankruptcy (;:::>3566.1, 3683.1, 37l5(1).] 2. To verify or corroborate <confirm that the order was signed>. 3. To make firm or certain <the judgment confirmed the plaintiff's right to pos session>. confirmatio (kon-far-may-shee-oh). [Latin "confirma tion"] Hist. A confirmation of a voidable estate. See CONFIRMATION (3). confirmatio crescens (kon- far-may-shee-oh kres-enz). [Latin "growing confirmation"] A confirmation that enlarges an estate. confirmatio diminuens (kon-far-may-shee-oh di-min yoo-enz). [Latin "diminishing confirmation"] A con firmation that decreases the services that a tenant must perform. confirmatio perficiens (kon-far-may-shee-oh par-fish ee-enz). [Latin "perfecting confirmation"] A confir mation that ratifies a wrongful and defeasible title, or makes a conditional estate absolute. confirmatio ad omissa vel male appretiata (kon-far may-shee-oh ad oh-mis-a vel mal-ee a-pree-shee-ay-ta). [Law Latin] Scots law. Confirmation (by an executor) of subjects omitted or wrongly valued in a previously provided inventory. Confirmatio Chartarum (kon-far-may-shee-oh kahr tair-Jm). [Latin "confirmation of the charters") Hist. A declaration first made by Henry III in ] 225 confirming the guarantees of Magna Carta and the Charter ofthe Forest. _ It was not enrolled until 1297, when, during the reign ofEdward I, it was enacted, thus introducing these charters into the common law. -Also spelled Confirmatio Cartarum. "For lawyers, the really important date is neither 1215 nor 1225, when Henry's Charter took its final form, but 1297, when Edward I, in his Inspeximus, confirmed the Charter of 1225 and the Forest Charter, which was issued at the same time (Confirmatio Chartarum). The important element in the Confirmatio is the statement that the Charter might be pleaded in every royal court, either to support a claim or a defense. The Charter becomes in this way part of the law the Common Law which, in 1297, was already a definite concept although it was not yet quite the equivalent of the law of England. Until then, the political aspects of the Charter had been much the more important." Max Radin, Handbook ofAngloAmerican Legal History 156 (1936). confirmation, n. (14c) 1. The act of giving formal approval <Senate confirmation hearings>. [Cases: United States 2. The act of verifying or cor roborating; a statement that verifies or corroborates <the journalist sought confirmation of the district attorney's remarks>. 3. The act of ratifying a voidable estate; a type ofconveyance in which a voidable estate is made certain or a particular estate is increased <deed of confirmation>. lCases: Deeds (;:::>51.] 4. Civil law. A declaration that corrects a null provision of an obli gation in order to make the provision enforceable. 5. Commercial law. A bank's agreement to honor a letter of credit issued by another bank. [Cases: Banks and Banking 0=> 191.] Cf. RATIFICATION. -confirmatory (kan-f~r-md-tor-ee), adj. silent confirmation. A bank's confirmation ofa letter ofcredit based on the request of the letter's benefi ciary rather than the issuing bank. [Cases: Banks and Banking (;:::> 191.] confirmation of sale. A court's approval -usu. in the form of a docket entry or order -of the terms of a court-ordered sale. [Cases: Judicial Sales 0=>31.) confirmation slip. The form verifying a purchase or sale of a security, usu. mailed by the broker to the investor. -Also termed transaction slip; sold note. confirmat

u. mailed by the broker to the investor. -Also termed transaction slip; sold note. confirmatio perficiens. See CONFIRMATIO. confirmavi (kon-far-may-vI). [Latin] Hist. I have con firmed . The emphatic word in a deed of confirmation. See CONFlRMATION (3). confirmed letter ofcredit. See LETTER OF CREDIT. confirmee (kon-far-mee). Hist. The grantee ofa deed of confirmation. See CONFIRMATION (3). confirmor (kan-far-mdf or -mor). Hist. The grantor ofa deed ofconfirmation. See CONFlRMATION (3). confiscable (kan-fis-kJ-bal or kon-fd-ska-bal), adj. (Of property) liable to confiscation; subject to forfeiture <confiscable contraband>. [Cases: Controlled Sub stances 0=> 164; Forfeitures 0=>3.) confiscare (kon-fi-skair-ee), vb. [Latin con "together" +fiscus "treasury"] Hist. To seize (property) for the government. confiscate (kon-fa-skayt), vb. 1. To appropriate (property) as forfeited to the government. 2. To seize (property) by authority oflaw. confiscation (kon-fi-skay-shdn), n. (16c) 1. Seizure of property for the public treasury. 2. Seizure ofproperty 341 by actual or supposed authority. -confiscatory (k;m fis-b-tor-ee), adj. -confiscator (kon-f<:l-skay-t<:lr), n. confiscatory rate. See RATE. confitens reus (kon-f<:l-tenz ree-<:ls). [Latin "confessing accused"] Hist. An accused person who admits com mitting the offense. conflict. See CONFLICT OF LAWS. conflict diamond. A diamond that originated in an area controlled by forces or factions opposed to a legitimate, internationally recognized government, and is used to fund military action against that government . Congress .enacted the Clean Diamond Trade Act in 2003 to stop trade in conflict diamonds. 19 USCA 3901 et seq. -Also termed blood diamond. conflicting evidence. See EVIDENCE. conflicting presumption. See PRESUMPTION. conflict ofauthority. (1822) 1. A disagreement between two or more courts, often courts ofcoordinate jurisdic tion, on a point oflaw. 2. A disagreement between two or more treatise authors or other scholars, esp. in an area in which scholarly authority is paramount, such as public or private international law. conflict ofinterest. (1843) 1. A real or seeming incompat ibility between one's private interests and one's public or fiduciary duties. 2. A real or seeming incompatibility between the interests of two of a lawyer's clients, such that the lawyer is disqualified from representing both clients ifthe dual representation adversely affects either client or if the clients do not consent. See Model Rules of Prof'! Conduct 1.7(a). [Cases: Attorney and Client C=>20, 113.] thrust-upon conflict. A conflict of interest that arises during an attorney's representation oftwo clients but did not exist and was not reasonably foreseeable when each client's representation began, and arises through no fault of the attorney's . Some states may require that the conflict be of a type that clients may waive under the rules of professional responsibility. This situation may create an exception to the hot-potato rule. See HOT-POTATO RULE. conflict oflaws. (1827) 1. A difference between the laws ofdifferent states or countries in a case in which a trans action or occurrence central to the case has a connec tion to two or more jurisdictions. -Often shortened to conflict. Cf. CHOICE OF LAW. [Cases: Action C=> 17.] conflict ofpersonal laws. 1. A difference of laws between a jurisdiction's general laws and the laws of a racial or religious group, such as a conflict between federal law and American Indian tribal law. 2. A dif ference between personal laws. See PERSONAL LAW. false conflict oflaws. l. A situation resembling but not embodying an actual conflict because the potentially applicable laws do not differ, because the laws' under lying policies have the same objective, or because one ofthe laws is not meant to apply to the case before the court. 2. The situation in which, although a case has a territorial connection to two or more states whose conformity hearing laws conflict with one another, there is no real conflict because one state has a dominant interest in having its law chosen to govern the case -hence there is no real conflict. 3. The situation in which the laws ofall states that are relevant to the facts in dispute either are the same or would produce the same decision in the case. -Often shortened to false conflict. 2. The body ofjurisprudence that undertakes to recon cile such differences or to decide what law is to govern in these situations; the principles of choice of law. Often shortened (in sense 2) to conflicts. -Also termed (in international contexts) private international law; international private law. "The phrase [conflict of laws], although inadequate, because it does not cover questions as to jurisdiction, or as to the execution of foreign judgments, is better than any other." Thomas E. Holland, The Elements ofJurisprudence 421 (13th ed. 1924). conflict out, vb. (1981) To disqualify (a lawyer or judge) on the basis ofa conflict ofinterest <the judge was con flicted out of the case by his earlier representation of one of the litigants>. [Cases: Attorney and Client 20-21.20; Judges C=>41-49.] conflict preemption. See obstacle preemption under PRE EMPTION. conflicts. See CONFLICT OF LAW (2). conformed copy. See COPY. conforming, adj. (1956) Being in accordance with con tractual obligations <conforming goods> <conform ing conduct>. UCC 2-102(a)(8). [Cases: Sales C=> 153, 166(1).] conforming use. See USE (1). Conformity Act. Hist. An 1872 federal statute provid ing that the practice and procedure in federal district courts (other than in equity and admiralty matters) must conform to the practice and procedure used by the state courts for like cases . The Federal Rules of Civil Procedure (effective in 1938) superseded the Con formity Act. "[Elven where there was conformity, it was to be 'as near as may be,' and this was understood by the Court to make the Conformity Act 'to some extent only directory and advisory' and to permit the federal judge to disregard a state practice that would, in his view, 'unwisely encumber the administration of the law, or tend to defeat the ends of justice.' With all these exceptions to conformity, and with the judge left somewhat at large to decide when he would conform, it is hardly surprising that the result was, in the view of a distinguished commentator, 'a mixture of conflict ing decisions, which have served to cloud the whole subject in hideous confusion and shifting certainty.''' Charles Alan Wright, The Law ofFederal Courts 61, at 425-26 (5th ed. 1994) (quoting Indianapolis & St. Louis Ry. Co. v. Horst, 93 U.s. 291, 300-01 (1876)). conformity hearing. (1970) l. A court-ordered hearing to determine whether the judgment or decree prepared by the prevailing party conforms to the decision ofthe court. 2. A hearing before a federal agency or depart ment to determine whether a state-submitted plan complies with the requirements of federal law . This 342 Confrontation Clause type of hearing is common in cases involving social services. Confrontation Clause. (1913) The Sixth Amendment provision generally guaranteeing a criminal defen dant's right to confront an accusing witness face-to face and to cross-examine that witness . This right may be overridden if the witness is esp. vulnerable. as with a child who is an alleged victim of sexual abuse. Even then, the defendant's attorney must have an opportunity to examine the witness while the defen dant observes by means of closed-circuit television or the like. See Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157 (1990). [Cases: Criminal Law confusio (bn-fyoo-zhee-oh), n. [fro Latin confundere "to pour together"]!. Roman law. An inseparable mixture of liquid property belonging to different owners. Cf. COMMIXTIO. 2. Roman law. The extinction ofa right or duty that occurs when the roles ofcreditor and debtor become united in one person. 3. Scots law. A doctrine whereby a lesser right is absorbed into a greater right and is thus extinguished . For example, if a debtor acquired the rights of a creditor, the debt would become meaningless. "When the rights of both creditor and debtor come to be vested in the one person, in the same legal capacity, as by succession, gift or purchase, the obligation is extinguished, unless the creditor has an interest to maintain the obliga tion in being or the intention appears that confusio was not to operate. Obligations are not necessarily extinguished confusione where there is a legal relationship, indepen dent of the pecuniary interests thereof, capable of revival by a subsequent separation of interests, as in the case of superior and vassal, and dominant and servient tenements in relation to servitude." 2 David M. Walker, Principles of Scottish Private Law: Law ofObligations 170 (1988). confusio bonorum (bn-fyoo-zhee-oh bd-nor-dm). See CONFUSION OF GOODS. confusion. 1. CONFUSION OF GOODS. 2. MERGER (9). "Confusion is the intermingling of two or more pieces of personal property so that the property rights in each can no longer be distinguished. Thereafter, no specific iden tification or separation of the formerly separate chattel is possible. Such an intermingling occurs most often with fungible goods like gas, oil, grain, mineral ore, or unmarked timber." Barlow Burke, Personal Property in a Nutshel/379 (2d ed. 1993). 3. Trademarks. A consumer's mistaken belief about the origin of goods or services. See LIKELIHOOD-OF-CON FUSION TEST. [Cases: Trademarks 1084.] direct confusion. See forward confusion. forward confusion. Confusion occurring when con sumers are likely to believe mistakenly that the infringing company's products are from the same source as the trademark owner's . In forward-con fusion cases, the infringing company is usu. smaller than the owner. Thus, consumers may believe the infringer to be an affiliate of the owner. -Also termed direct confusion. [Cases: Trademarks C=> 1084.] reverse confusion. Confusion occurring when consum ers are likely to believe mistakenly usu. through Widespread advertising and promotion by the infringing company -that the trademark owner's products are actually those ofthe infringer . Reverse confusion often injures the owner's reputation and goodwill. In an action for reverse confusion, the trademark owner is typically the smaller company. [Cases: Trademarks C=> 1089.] confusion ofboundaries. The branch of equity that deals with the settlement of disputed or uncertain real-prop erty boundaries. [Cases: Boundaries C-j 26.] confusion of debts. See MERGER (9). confusion of goods. (18c) The mixture of things of the same nature but belonging to different owners so that the identification of the things is no longer possible . If this occurs by common consent ofthe owners, they are owners in common, but ifthe mixture is done willfully by one person alone, that person loses all right in the property unless (1) the goods can be distinguished and separated among owners, or (2) the mixing person's goods are equal in value to the goods with which they were intermingled. ConfUSion ofgoods combines the civil-law concepts of confusio (a mixture ofliquids) and commixtio (a mixture of dry items). -Also termed intermixture ofgoods; confUSiO bonorum. [Cases: Con fusion ofGoods Cr"::> 1-5.] confusion ofrights. See MERGER (9). confusion oftitles. Civil law. The merger oftwo titles to the same land in the same person. Cf. MERGER (9). con game. See CONFIDENCE GAME. congeable (kon-jee-a-bal), adj. [fro French conge "permis sion"] Hist. Lawful; permissible. conge d'accorder (kawn-zhay da-kor-day). [Law French] Hist. Leave to accord . Courts used this phrase in ficti tious land-title lawsuits to grant the defendant permis sion to agree with the plaintiffs allegations. See FINE (1). conge d'emparler (kawn-zhay dawm-pahr-Iay). [French] Hist. Leave to imparl. This phrase was formerly used by a defendant to request leave of court for additional time to file a responsive pleading. See IMPARLANCE. congeries (kon-jeer-eez or kon-jd-reez). (17c) A collec tion or aggregation <a congeries ofrights>. conglomerate (k;m-glom-<'lr-it), n. (1967) A corporation that owns unrelated enterprises in a wide variety of industries. -Also termed conglomerate corporation. [Cases: Corporations conglomerate (kdn glom-d-ray

Also termed conglomerate corporation. [Cases: Corporations conglomerate (kdn glom-d-rayt), vb. conglomerate (kdn-glom-dr-it), adj. conglomerate merger. See MERGER. congress, n. (l6c) 1. A formal meeting of delegates or representatives; CONVENTION (4). 2. (cap.) The legisla tive body of the federal government, created under u.s. Const. art. I, 1 and consisting of the Senate and the House of Representatives. [Cases: United States 7.] congressional, adj. Congressional Budget Office. An office in the legisla tive branch of the federal government responsible for 343 conjuration forecasting economic trends, making cost estimates, conducting special studies in budget-related areas, and issuing annual reports that discuss federal spending and revenue levels and the allocation of funds . Itwas established by the Congressional Budget and Impound ment Control Act of 1974. Abbr. CBO congressional committee. See COMMITTEE. congressional district. See DISTRICT. Congressional Globe. A privately issued record of the proceedings in Congress . The Globe was the sole record ofcongressional speeches and statements from 1833 until ,the publicly printed Congressional Record appeared in 1873. It contains the congressional debates ofthe 23d through the 42d Congress, congressional immunity. See IMMUNITY (1). congressional intent. See LEGISLATIVE INTENT. congressional power. See POWER (3). Congressional Record. 'The official record of the daily proceedings in the U.S. Senate and House of Repre sentatives. Members ofCongress are allowed to edit their speeches before printing, and they may insert material never actually spoken by obtaining permis sion from their respective houses to revise or extend their remarks. congressional-reference case. See CASE. Congressional Research Service. A nonpartisan agency in the Library of Congress that researches and analyzes legislative issues for congreSSional committees and individual members of Congress. Congress created the agency in 1914 as the Legislative Reference Service. It was renamed in 1970. Abbr. CRS. congressional survey. See government survey under SURVEY. Congress ofAuthors and Artists. Copyright. A 19th century convention of writers, artists, librarians, and others promoting universal copyright protection . The Congress, which met in 1858, 1861, and 1877, passed resolutions that helped lay the groundwork for the Berne Convention. See BERNE CONVENTION. conjectio (bn-jek-shee-oh), vb. [Latin "an inference"] Hist. A conclusion drawn from evidence; a fact inferred from the evidence presented. PI. conjectiones (kdn-jek shee-oh-neez). conjectio causae (kdn-jek-shee-oh kaw-zee). [Latin "putting together ofa cause"] Roman law. A summary presentation of a case before the court by the parties or their advocates. conjectural choice, rule of. (1956) The principle that no basis for recovery is presented when all theories ofcau sation rest only on conjecture. See CONJECTURE. [Cases: NegligenceG=:1694,1713.] conjectura pietatis (kdn-jek-cha-ra pI-a-tay-tis). [Latin] Hist. A conclusion arising from a natural duty. conjecture (kan-jek-char), n. (14c) A guess; suppo sition; surmise. [Cases: Criminal Law G=:486(2); Evidence C:=:'555.4(2).] conjecture (kdn-jek-char), vb. -conjectural (kdn-jek-char-al), adj. conjoint (bn-joynt), n. A person connected with another in a joint interest, obligation, or undertaking, such as a cotenant or spouse. conjoint, adj. conjoint robbery. See ROBBERY. conjoint will. See joint will under WILL. conjudex (kon-joo-deks). [fro Latin con "together" + judex"judge"] Hist. An associate judge. conjugal (kon-ja-gal), ad). (16c) Of or relating to the married state, often with an implied emphaSis on sexual relations between spouses <the prisoner was allowed a private bed for conjugal visits>. (Cases: Divorce 37(20); Husband and Wife conjugal rights. (18c) The rights and privileges arising from the marriage relationship, including the mutual rights of companionship, support, and sexual relations . Loss of conjugal rights amounts to loss of consor tium. See CONSORTIUM. [Cases: Divorce C:=:'37(20); Husband and Wife C~;;;3(0.5).] conjugal union. See MARRIAGE (1). conjugal visit. An opportunity for physical contact granted to a prisoner and the prisoner's spouse, usu. in the form of an overnight stay at the prison. -Some jurisdictions allow conjugal visits between unmarried partners. [Cases: Prisons (;:::-.:> 143.] conjugium (bn-joo-jee-.:nn), n. Latin con "together" + jugum "yoke"] Roman law. condition of being married. conjunct (k;m-j.mgkt or kon-jangkt), adj. Civil law. (Of persons) so closely related to a person (such as an insol vent) as to be disqualified from acting as a judge or witness in a case involving that person. conjuncta (k<"ln-jangk-ta). [Latin] Civil law. Things (usu. words or phrases) that are joined together. Cf. DISJUNCTA. conjunctim (bn-j;mgk-tim), adv. [Latin] Roman law. Conjointly. Heirs instituted conjunctim, for example, became coheirs with equal shares. Cf. DISJUNCTIM. conjunctim et divisim (kan-jangk-timet d;:J-vl-zim or -sim). [Latin] Hist. TOintly and severally. conjunctio animorum (bn-jangk-shee-oh an-a mor-am). [Latin] Scots law. The mutual consent of parties to a marriage. conjunctive denial. See DENIAL. conjunctive obligation. See OBLIGATION. conjuratio (kon-juu-ray-shee-oh). [Latin] CONJURA TION. conjuration (kon-j<"l-ray-sh;m). Hist. 1. A plot or compact made by persons who swear to each other to do some thing that will result in public harm. 2. 'The offense of attempting a conference with evil spirits to discover some secret or effect some purpose; witchcraft; sorcery. 344 conjurator "Coniuration (coniuratio) is the very French word drawne from the latine, which as it is compounded of (con & iuro) so it signifieth a compact or plot, made by men combin ing themselves together by oath or promise, to do some publique harme. But in our common lawe, it is especially used for such as have personali conference with the devil! or evill spirit, to know any secret, or to effect any purpose. And the difference that I have observed (how truly let those judge that be beter skilled in these maters) betweene coniuration and witchcraft, is because the one seemeth, by prayers and invocation of Gods powerfull names, to compell the devill, to say or doe what he commandeth him: the other dealeth rather by a friendly and voluntarie confer ence or agreement betweene him or her and the devill or familiar, to have her or his desires and turnes served in lieu of blood, or other gift offered unto him, especially of his or her soule." John Cowell, The Interpreter (1607). conjurator (kon-ja-ray-tar). Hist. A person who swears an oath with others; a coconspirator. con man. See CONFIDENCE MAN. connecting factor. (1950) Conflict oflaws. A factual or legal circumstance that helps determine the choice of law by linking an action or individual with a state or jurisdiction. -An example ofa connecting factor is a party's domicile within a state. See POINT OF ATTACH MENT. Action c'-::> 17.] connecting-up doctrine. (1986) The rule allowing evidence to be conditionally admitted if the offering party promises to show relevance by addUcing other evidence. [Cases: Criminal Law ~672;Federal Civil Procedure ~2014; Trial ~5L] connexity (kOJ-nek-sa-tee). Connectedness; the quality of being connected. -In some states, connexity expresses the relationship that must exist between a foreign party (such as a corporation) and the state for a plaintiff to maintain personal jurisdiction over the party; gener ally, the claim must arise from a transaction connected with the activities of the party in the state. connivance (kOJ-nI-VClnts), n. (l6c) 1. 'The act of indulg ing or ignoring another's wrongdoing, esp. when action should be taken to prevent it. 2. Family law. As a defense to divorce, one spouse's corrupt consent, express or implied, to have the other commit adultery or some other act ofsexual misconduct. -Consent is an essen tial element of connivance. 'The complaining spouse must have consented to the act complained of. [Cases: Divorce Cf. COLLUSION (2); CONDONATION (2); RECRIMINATION. connive (b-nIv), vb. connive (kOJ-nIv), vb. 1. To knowingly overlook another's wrongdoing. 2. Loosely, to conspire. connubium. See CONUBIUM. conqueror, n. [fro Law French conquerir "to acquire"] Hist. 1. One who acquires territory by force during war with the intention of exercising sovereignty. See CONQUEST (1). 2. The first person who acquired land by purchase; one who first brought an estate into a family. See CONQUEST (2): PURCHASE (2). conqueror, vb. [Latin] To complain. -Conqueror served as a declaratory statement in petitions, often by intro ducing the complaint: Conqueror quod . ... ("I complain that ...."). conquest. 1. Int'llaw. An act offorce by which, during a war, a belligerent occupies territory within an enemy country with the intention ofextending its sovereignty over that territory. -That intention is usu. explained in a proclamation or some other legal act. 2. Hist. The acquisition ofland by any method other than descent, esp. by purchase. 3. Hist. The land so acquired. Cf. PURCHASE (2). "What we call purchase, perquisitio, the feudists called conquest, conquaestus, or conquisitio: both denoting any means of acquiring an estate out of the common course of inheritance. And this is still the proper phrase in the law of Scotland: as it was, among the Norman jurists, who stiled the first purchasor (that is, he who first brought the estate into the family which at present owns it) the conqueror or conquereur. Which seems to be all that was meant by the appellation which was given to William the Norman, when his manner of ascending the throne of England was, in his own and his successors' charters, and by the historians of the times, entitled conquaestus, and himself conquaestor or conquisitor; signifying, that he was the first of his family who acquired the crown of England, and from whom therefore all future claims by descent must be derived: though now, from our disuse of the feodal sense of the word, together with the reflection on his forcible method of acquisition, we are apt to annex the idea of victorvto this name of conquest or conquisition; a title which, however just with regard to the crown, the conqueror never pre tended with regard to the realm of England; nor, in fact, ever had." 2 William Blackstone, Commentaries on the Laws ofEngland 242-43 (1766). conquet. See ACQUET (1). conquisitio (kOJn-or kang-kwi-zish-ee-oh). [Latin "search") See CONQUEST (2). Also termed con qui sition. conquisitor (bn-or kClng-kwiz-OJ-t<ir). [Latin "one who searches"] See CONQUEROR (1). consanguine brother. See BROTHER. consanguineo. See COSINAGE. consanguine sister. See SISTER. consanguineus (kon-sang-gwin-ee-OJs), n. [Latin "related by blood"] Hist. A person related to another by blood; a consanguineous relative. consanguineus frater (kon-sang-gwin-ee-OJs fray-t<ir). [Latin "blood brother"] Hist. A half-brother by the same father. consanguineus uterinus (kon-sang-gwin-ee-OJs yoo-t<i rI-nas). [Latin "blood relative by the uterus"] Hist. A half-sibling by the same mother. consanguinitas (kon-sang-gwin-a-tas), n. [Latin "rela tionship by blood"] Roman law. The relationship between siblings who have the same father. consanguinity (kon-sang-gwin-OJ-tee), n. (I4c) The rela tionship ofpersons ofthe same blood or origin. See pro hibited degree under DEGREE. Cf. AFFINITY; AFFINITAS AFFINITATIS. [Cases: Incest ~5;Marriage C-:::-lO.J consanguineous, adj. "In the mode of computing the degrees of consanguinity, the civil law ... begins with the int

consanguineous, adj. "In the mode of computing the degrees of consanguinity, the civil law ... begins with the intestate, and descends from that ancestor to the next heir, reckoning for each person, as well in the ascending as descending lines. According to this rule of computation, the father of the intestate stands in the first degree, his brother in the second, and his brother's children in the third. Or, the grandfather stands in the second degree. the uncle in the third. the cousins in the fourth, and so on in a series of genealogical order. In the canon law. which is also the rule of the common law, in tracing title by descent. the common ancestor is the terminus a quo. The several degrees of kinship are deduced from him. By this method. the brother of A is related to him in the first degree instead of being in the second ... for he is but one degree removed from the common ancestor. The uncle is related to A in the second degree, for though the uncle be but one degree from the common ancestor, yet A is removed two degrees from the grandfather. who is the common ancestor." 4 James Kent, Commentaries on American Law *412 -13 (George Comstock ed., 11thed. 1866). collateral consanguinity. (l6c) The relationship between persons who have the same ancestor but do not descend or ascend from one another (for example, uncle and nephew, cousins, etc.). lineal consanguinity. The relationship between persons who are directly descended or ascended from one another (for example, mother and daughter, great grandfather and grandson, etc.). conscience. (Bc) 1. The moral sense of right or wrong; esp., a moral sense applied to one's own judgment and actions. 2. In law, the moral rule that requires justice and honest dealings between people. conscience clause. A legislative provision that allows a person to claim an exemption from compliance, usu. on religious-freedom grounds. [Cases: Constitutional Law (;:::;, 1290.] conscience of the court. (l7c) 1. The court's equitable power to decide issues based on notions of fairness and justice. See EQUITY (4). 2. A standard applied by the court in deciding whether a party or a jury has acted within acceptable limits. -Thus, in some cases, a jury's award of damages is upset because it is said to "shock the conscience ofthe court." See SHOCK THE CONSCIENCE. conscientia illaesa (kon-s[h]ee-en-shee-;) i-Jee-s;) or -za). [Latin] Hist. An unviolated conscience; good faith. conscientia rei alienae (kon-s[h]ee-en-shee-d ree-I ay lee-ee-nee or al-ee-). [Law Latin] Scots law. The knowl edge that property held by one person actually belongs to another. conscientious objector. A person who for moral or reli gious reasons is opposed to participating in any war, and who may be excused from military conscription but remains subject to serving in civil work for the nation's health, safety, or interest. See 50 USCA 456. Cf. PACIFIST. [Cases: Armed Services (;:::;,20.6(3).] conscionable (kon-sha-nd-bdl), adj. (16c) Conforming with good conscience; just and reasonable <a conscio nable bargain>. Cf. UNCONSCIONABLE. -consciona bleness, conscionability, n. conscious avoidance. See deliberate indifference under INDIFFERENCE. conscious-avoidance instruction. See willful-blindness instruction under TURY INSTRUCTION. conscious indifference. See INDIFFERENCE. consciously parallel. Antitrust. Of, relating to, or char acterizing the conduct of a party who has knowledge of a competitor's action (such as raising prices) and who makes an independent decision to take the same action. -In some cases this is viewed as evidence of a conspiracy. conscious parallelism. Antitrust. An act of two or more businesses in a concentrated market intention ally engaging in monopolistic conduct. Also termed tacit collusion; oligopolistic price coordination. conscious-presence test. A method for judging whether a testator is in the presence ofa witness to a will, whereby if the testator can sense the presence ofthe witness even if the witness cannot be seen the witness is present. Restatement (Third) of Property: Wills and Other Donative Transfers 3.1. -Also termed con scious presence. See PRESENCE-OF-THE-TESTATOR RULE. conscius fraudis (kon-s[hlee-ds fraw-dis). [Latin] See PARTICEPS FRAUDIS. conscription. See DRAFT (2). consecratio capitis (kon-s;}-kray-shee-oh kap-i-tis). [Latin "consecrating the body"] Roman law. The act of declaring a wrongdoer an outlaw who could be killed on Sight; the punishing ofcriminal behavior by relegating an offender to the gods, i.e., leaving the person outside divine and human protection. See SACER; OUTLAWRY. consecutive sentences. See SENTENCE. consecutive tortfeasors. See TORTFEASOR. consensual (kJn-sen-shoo-Jl), adj. 1. Having, express ing, or occurring with full consent <consensual rela tions>. 2, Created or existing by mutual consent without formalities such as a written document or ceremony <consensual marriage>. Also termed consentaneous; consentient. consensual contract. See CONTRACT. consensual crime. See victimless crime under CRIME. consensual marriage. See MARRIAGE (1). consensual search. See consent search under SEARCH. consensus. A general agreement; collective opinion. See general consent under CONSENT (2). "The regular method for the chair to use is to ask the members, 'Is it the consensus of this meeting that .. . is agreed to?' or, 'Is it the will of the assembly that .. . is agreed to?' or, 'Is there an objection?' Consensus has been used successfully throughout the years by Quakers. Indians, New England town meetings, and others as a decisionmaking procedure. It permits compromise. In small groups where less formality is required, it is a simple method for making deCisions. "General consent is an equivalent to consensus, when done without objection. OtherWise, a formal vote must be taken." Floyd M. Riddick & Miriam H. Butcher, Riddick's Rufes of Procedure 56 (1985). consensus ad idem (bn-sen-s;}s ad I-dem). [Latin] An agreement of parties to the same thing; a meeting of minds. Also termed consensus in idem; consensus in idem, placitum et conventio. "Agreement between the parties or consensus in idem is the basis of contractual obligation ...." 2 David M. Walker, Principles of Scottish Private Law 11 (4th ed. 1988). consent, n. (14c) 1. Agreement, approval, or permission as to some act or purpose, esp. given voluntarily by a competent person; legally effective assent. Consent is an affirmative defense to assault, battery, and related torts, as well as such torts as defamation, invasion of privacy, conversion, and trespass. Consent may be a defense to a crime if the victim has the capacity to consent 'and if the consent negates an element of the crime or thwarts the harm that the law seeks to prevent. See Model Penal Code 2.11. "The consent [to a contract] is none the less 'genuine' and 'real,' even though it be induced by fraud, mistake, or duress. Consent may be induced by a mistaken hope of gain or a mistaken estimate of value or by the lie of a third person, and yet there is a contract and we do not doubt the 'reality of the consent.' Fraud, mistake, and duress are merely collateral operative facts that co-exist with the expressions of consent and have a very important effect upon the resulting legal relations." William R. Anson, Prin ciples of the Law ofContract199 n.l (Arthur L. Corbin ed., 3d Am. ed. 1919). blank consent. See BLANK CONSENT. express consent. (16c) Consent that is clearly and unmistakably stated. implied consent. (17c) 1. Consent inferred from one's conduct rather than from one's direct expres sion. Also termed implied permission. 2. Consent imputed as a result of circumstances that arise, as when a surgeon removing a gall bladder discovers and removes colon cancer. informed consent. (1938) 1. A person's agreement to allow something to happen, made with full knowl edge of the risks involved and the alternatives . For the legal profession, informed consent is defined in .'vlodel Rule of Professional Conduct l.O(e). 2. A patient's knowing choice about a medical treatment or procedure, made after a physician or other healthcare provider discloses whatever information a reasonably prudent provider in the medical community would give to a patient regarding the risks involved in the proposed treatment or procedure. -Also termed knOWing consent. Health C~)906.1 knowing consent. See informed consent. parental consent. Consent given on a minor's behalfby at least one parent, or a legal guardian, or by another person properly authorized to act for the minor, for the minor to engage in or submit to a specified activity. voluntary consent. Consent that is given freely and that has not been coerced. 2. Parliamentary law. ADOPTION (5). consent, vb. consensual, adj. general consent. 1. Adoption without objection, regard less ofwhether every voter affirmatively approves. 2. See unanimous consent (1). unanimous consent. 1. Adoption with every voter's approval. 2. See general consent (1). The terms "general consent" and "unanimous consent" have distinct but interchangeable meanings. Some parlia mentary manuals treat them as synonymous; others distinguish them; and still others distinguish them, but in exactly the opposite way. "Motions that appear to have no opposition because they are relatively unimportant, uncontroversial, or because approval is obViOUS, permit the chair to say, 'The motion, without objection, is adopted' (or agreed to), without putting the motion to a formal vote. General consent implies that no one cared enough to oppose the motion or propOSition. Unanimous consent implies that everyone was in agreement. If there is even one objection, the request is denied and the question must be put to a vote for adoption." Floyd M. Riddick & Miriam H. Butcher, Rid dick's Rules ofProcedure 97 (1985). '''Unanimous consent' does not necessarily imply that every member is in favor of the proposed action; it may only mean that the opposition, feeling that it is useless to oppose or discuss the matter, simply acquiesces." Henry M. Robert, Robert's Rules of Order Newly Revised 4, at 52 (10th ed. 2001). consent agenda. See consent calendar under CALENDAR (4). consentaneous, adj. See CONSENSUAL. consent calendar. 1. Family law. A schedule of informal hearings involving a child, usu. arranged when it appears that the child's best interests will be served if the case is heard informally . The child and all inter ested parties must first consent before the case goes on the consent calendar. [Cases: Infants C:::c203.] 2. For the parliamentary sense relating to a delibera tive assembly's business, see consent calendar under CALENDAR (4). consent clause. See AUTHORIZATION CLAUSE. consent decree. See DECREE. consent dividend. See DIVIDEND. consentient, adj. See CONSENSUAL. consent judgment. See agreed judgment under JUDGMENT. consent jurisdiction. See JURISDICTION. consent order. See consent decree under DECREE. consent search. See SEARCH. consent to be sued. (1872) Agreement in advance to be sued in a particular forum. See COGNOVIT CLAUSE. [Cases: Corporations C:=:'662; States 191; United States C:=:' 125.] consent to notice. (1996) A provision stating that notice required by a document may be given beforehand or to a designated person. consequential contempt. See CONTEMPT. consequential damages. See DAMAGES. consequential economic loss. See ECONOMIC LOSS. consequential injury. See consequential loss under LOSS. consequentialism. Ethics. An ethical theory that judges the rightness or wrongness of actions according to their consequences . One of the best-known types of con sequentialism is utilitarianism. See UTILITARIANISM. Cf. VIRTUE ETHICS. consequential loss. See LOSS. conservation. Environmental law. The supervision, management, and maintenance of natural resources; the protection, improvement, and use of natural resources in a way that ensures the highest social as well as economic benefits. [Cases: Environmental Law conservation easement. See EASEMENT. conservation restriction. See conservation easement under EASEMENT. conservation servitude. See conservation easement under EASEMENT. conservator (kan-sar-va-tar orkon-sar-vay-t;>r), n. (15c) A guardian, protector, or preserver. Conservator is the modern equivalent of the common-law guardian. Judicial appointment and supervision are still required, but a conservator has far more flexible authority than a guardian, including the same investment powers that a trustee enjoys. The Uniform Probate Code uses the term conservator, and Article 5 is representative of modern conservatorship laws. [Cases: Guardian and Ward 10.] conservatorship, n. managing conservator. (1974) 1. A

and Ward 10.] conservatorship, n. managing conservator. (1974) 1. A person appointed by a court to manage the estate or affairs of someone who is legally incapable of doing so; GUARDIAN (1). [Cases: Guardian and Ward ~10.] 2. In the child custody laws of some states, the parent who has primary custody of a child, with the right to establish the child's primary domicile. See CUSTODY. [Cases: Child Custody~28.) possessory conservator. (1974) See noncustodial parent under PARENT. conservator ofthe peace. See PEACE OFFICER. conserve, vb. 1. To take care of; to care for. 2. To protect from change, destruction, or depletion. 3. To reduce or minimize the use of. consideration, n. (l6c) 1. Something (such as an act, a forbearance, or a return promise) bargained for and received by a promisor from a promisee; that which motivates a person to do something, esp. to engage in a legal act . Consideration, or a substitute such as promissory estoppel, is necessary for an agreement to be enforceable. See Restatement (Second) ofContracts 81 (1979). [Cases: Contracts ~49.) "A 'consideration' has been explained to be 'any act of the plaintiff from which the defendant, or a stranger, derives a benefit or advantage, or any labour, detriment, or inconve nience sustained by the plaintiff, however small the detri ment or inconvenience may be, if such act is performed, or inconvenience suffered by the plaintiff with the assent, express or implied, of the defendant, or, in the language of pleading, at the special instance and request of the defen dant.'' Thomas E. Holland, The Elements ofJurisprudence 286 (13th ed. 1924). "A conSideration in its widest sense is the reason, motive, or inducement, by which a man is moved to bind himself by an agreement. It is not for nothing that he consents to impose an obligation upon himself, or to abandon or transfer a right. It is in consideration of such and such a fact that he agrees to bear new burdens or to forgo the benefits which the law already allows him." John Salmond, Jurispru dence 3S9 (Glanville L. Williams ed., 10th ed. 1947). 'The word 'consideration' has been around for a long time, so it is tempting to think we have had a theory of consid eration for a long time. In fact until the nineteenth century the word never acquired any particular meaning or stood for any theory." Grant Gilmore, The Death of Contract 18 (1974). "In the late fifteenth and early sixteenth centuries the word 'consideration' was very familiar to lawyers, and although it had not yet acquired a special legal meaning (and indeed was not to do so during the period under discussion) it had already begun to develop legal associations. Most commonly it was used in statutes .... In the statutes of Henry VI it became quite common for the draftsman, after he had rehearsed the circumstances to introduce the enacting part with a clause in the following (or similar) form: 'The King, considering the premisses, of the Assent and Request aforesaid, hath ordained and established ... .' In the course of time the matters which were conSidered, and to which consideration was given, came themselves to be called 'the considerations.' [By the late 15th century] the considerations were the matters conSidered; they were the factors which Parliament or the King was supposed to have had in mind in legislating, and which moved or motivated the enactment. Loosely the word could be treated as syn onymous with 'cause,' and both in statutes and elsewhere causes and considerations were often mentioned in the same breath. But 'cause' does not mean exactly the same thing as 'consideration'; it lacks the suggestion of what was in the mind, what was considered, what motivated:' AW.B. Simpson, Legal Theory and Legal History 332 (1987). adequate consideration. (17c) Consideration that is fair and reasonable under the circumstances of the agreement. Cf. sufficient consideration. Con tracts ~53,54.] "It is helpful to observe precision in use of vocabulary when analyzing consideration issues. Distinguish carefully between 'adequate' consideration and 'sufficient' consider ation. 'Adequacy' refers to whether there was a fair involving an exchange of equal values. 'Sufficiency' to whether the consideration is legally sufficient to enforce a promise, and this requires only that there be some legal detriment incurred as a bargained exchange for the other party's promise." Claude Rohwer & Gordon D. Schaber, Contracts in a Nutshell 83 (4th ed. 1997). "Although courts have not lost the habit of speaking of an 'adequate,' a 'sufficient,' or a 'valuable' consideration, the bargain test as epitomized in the Restatement imposes no such additional requirement." E. Allan Farnsworth, Con tracts 2.11, at 69-70 (3d ed. 1999). and other good and valuable consideration. See other consideration. concurrent consideration. Consideration arising at the same time as other consideration, or where the promises are simultaneous. [Cases: Contracts 56.) continuing consideration. An act or performance extending over time. due consideration. See sufficient consideration. executed consideration. A consideration that has been wholly given; past consideration as opposed to present or future consideration. [Cases: Contracts (:::::o7S.] executory consideration (eg-zek-p-tor-ee). A consid eration that is to be given only after formation of the contract; present or future consideration as opposed to past consideration. express consideration. Consideration that is specifi cally stated in an instrument. fair consideration. (1Sc) 1. Consideration that is roughly equal in value to the thing being exchanged; consideration given for property or for an obligation in either of the following circumstances: (1) when given in good faith as an exchange for the property or obligation, or (2) when the property or obligation is received in good faith to secure a present advance or prior debt in an amount not disproportionately small as compared with the value of the property or obligation obtained. -Also termed fair and valuable consideration. 2. Consideration that is honest, reason able, and free from suspicion, but not strictly adequate or full. future consideration. (1979) 1. Consideration to be given in the future; esp., consideration that is due after the other party's performance. 2. Consideration that is a series of performances, some of which will occur after the other party's performance. 3. Consid eration the specifics ofwhich have not been agreed on between the parties. Cf. past consideration. good and valuable consideration. See valuable con sideration. good consideration. (1Sc) 1. Consideration based on natural love or affection or on moral duty <good consideration, being based purely on affection, does not amount to valuable consideration> . Such con sideration is usu. not valid for the enforcement of a contract. -Also termed meritorious consideration; moral consideration. [Cases: Contracts (:::::076,77.] "A good consideration is that of blood, or the natural love and affection which a person has to his children, or any of his relatives .... A good consideration is not of itself sufficient to support a promise, any more than the moral obligation which arises from a man's passing his word; neither will the two together make a binding contract; thus a promise by a father to make a gift to his child will not be enforced against him. The consideration of natural love and affection is indeed good for so little in law, that it is not easy to see why it should be called a good consider ation ...." Joshua Williams, Principles of the Law ofPersonal Property 95-96 (11th ed. 1881). "Stated simply, good or meritorious consideration is nothing more than motive or moral obligation." 3 Richard A. Lord, Williston on Contracts 7:16, at 325-26 (4th ed. 1992). 2. Loosely, valuable consideration; consideration that is adequate to support the bargained-for exchange between the parties <his agreement to pay the offering price was good consideration for the sale>. [Cases: Contracts (:::::049.] gratuitous consideration (gr;J-t[y]oo-i-t;Js). (1SS0) Consideration that, not being founded on any det riment to the party who gives it, will not support a contract; a performance for which a party was already obligated. grossly inadequate consideration. Consideration whose value is so much less than the fair value ofthe object acquired that it may not support finding that the transaction is a valid exchange . Depending on the surrounding circumstances, the transaction may actually be fraud, a gift, or something else other than a sale and purchase. [Cases: Contracts (:::::o53.J illegal consideration. (ISc) Consideration that is contrary to the law or public policy, or prejudicial to the public interest . Such consideration does not support a contract. [Cases: Contracts 103.] immoral consideration. A consideration that so offends societal norms as to be invalid . A contract supported by immoral consideration is usu. voidable or unenforceable. -Also termed turpis causa. [Cases: Contracts (:::::0 112.] implied consideration. (ISc) Consideration that is inferred by law from the parties' actions. impossible consideration. Consideration stemming from a promise or performance that cannot be ful filled. [Cases: Contracts (:::::oSO.] inadequate consideration. (1Sc) Consideration that is not fair or reasonable under the circumstances of the agreement. Cf. adequate consideration. [Cases: Contracts (:::::053,54.] invented consideration. (1977) Fictional consider ation created by a court to prevent the invalidation ofa contract that lacks consideration. legal consideration. See VALUABLE CONSIDERATION. legally sufficient consideration. See sufficient consid eration. meritorious consideration. See good consideration. moral consideration. See good consideration. nominal consideration. (ISc) Consideration that is so insignificant as to bear no relationship to the value of what is being exchanged (e.g., $10 for a piece of real estate) . Such consideration can be valid, since courts do not ordinarily examine the adequacy of consideration (although they do often inquire into such issues as fraud and duress). -Also termed pep percorn. [Cases: Contracts (:::::053,54.] "Offers made in consideration of one dollar paid or promised are often irrevocable .... The irrevocability of an offer may be worth much or little to the offeree, and the courts do not ordinarily inquire into the adequacy of the consideration bargained for. Hence a comparatively small payment may furnish consideration for the irrevoca bility of an offer proposing a transaction involving much larger sums. But gross disproportion between the payment and the value of the option commonly indicates that the payment was not in fact bargained for but was a mere formality or pretense. In such a case there is no consid eration .... Nevertheless, such a nominal consideration is regularly held sufficient to support a short-time option proposing an exchange on fair terms. The fact that the option is an appropriate preliminary step in the conclusion of a socially useful transaction provides a sufficient sub stantive basis for enforcement, and a signed writing taking a form appropriate to a bargain satisfies the deSiderata of form. In the absence of statute, however, the bargaining form is essential: a payment of one dollar by each party to the other is so obviously not a bargaining transaction that it does not provide even the form of an exchange." Restate ment (Second) of Contracts 87 cmt. b (1979). other consideration. (18c) Additional things of value to be provided under the terms ofa contract, usu. unspecified in the contract, deed, or bill of sale, because they are too numerous to conveniently list, or to avoid public knowledge of the total amount of consideration. -Also termed other good and valuable consideration. past consideration. (I8c) An act done or a promise given by a promisee before making a promise sought to be enforced. Past consideration is not consid eration for the new promise because it has not been given in exchange for this promise (although excep tions exist for new promises to pay debts barred by limitations or debts discharged in bankruptcy). See PREEXISTING-DUTY RULE. Cf. future consideration. [Cases: Contracts (;::::c79.] "A past consideration is, in effect, no consideration at all; that is to say, it confers no benefit on the promisor, and involves no detriment to the promisee in respect of his promise. It is some act or forbearance in time past bywhich a man has benefited without thereby incurring any legal liability." William R. Anson, Principles ofthe Law ofContract 149 (Arthur L. Corbin ed., 3d Am. ed. 1919). '''Past Consideration.' The quotation marks suggest that there is something wrong with this phrase. Past consid eration, or something given, done, or suffered in the past which purportedly supports a subsequent promise, is no consideration. If a benefit has been conferred upon the promisor or if the promisee has suffered a detriment in the past and there is a subsequent promise to pay therefor, there is no bargain for such past value. Therefore, it cannot constitute consideration." John Edward Murray Jr., Cases and Materials on Contracts 427 (2d ed. 1976). sufficient consideration. (l7c) Enough consideration as a matter oflaw to support a contract. -Also termed due consideration; legally sufficient consideration. Cf. adequate consideration. [Cases: Contracts (;::::;>54.] valuable consideration. (17c) Consideration that is valid under the law; consideration that either confers a pecuniarily measurable benefit on one party or imposes a pecuniarily measurable detriment on the

confers a pecuniarily measurable benefit on one party or imposes a pecuniarily measurable detriment on the other. Also termed good and valuable consider ation; legal consideration. [Cases: Contracts (;::::c49.] "By a valuable consideration is meant something of value given or promised by one party in exchange for the promise of the other. ... The thing thus given by way of consideration must be of some value. That is to say, it must be material to the interests of one or the other or both of the parties. It must either involve some gain or benefit to the promisor by way of recompense for the burden of his promise, or it must involve some loss or disadvantage to the promisee for which the benefit of the promise is a recompense." John Salmond, jurisprudence 360 (Glanville L. Williams ed., 10th ed. 1947). 2. Parliamentary law. The process by which a delibera tive assembly disposes ofa motion; DELIBERATION . Consideration begins with a member making a motion and the chair stating the question on the motion; it ends with the chair putting the question on the motion (or on a subsidiary motion that disposes of the first motion). It also includes debate and may also include (among other things) amendment and referral to a committee. consideration byparagraph. See consideration seria tim. consideration seriatim. Consideration serially, whereby a deliberative assembly considers a long or complex motion in a series ofreadily divisible parts before on the entire motion. Also termed consideration by paragraph (in which case a "para graph" means not a literary paragraph but any readily divisible part of a motion, which may include more than one literary paragraph); serial consideration. "When a proposition, motion or resolution has many parts (paragraphs, sections, or clauses), or many articles (as a set of bylaws which is up for revision or amendment), it is best and most prudent that no vote be taken on each separate part. Instead, a single vote covering all its parts should be taken after each of them has been duly conSidered, amended, and perfected. Seriatim (Lat.) literally means 'serially,' and when applied to several or more parts of a parliamentary proposal or question it means consideration paragraph by paragraph or part by part. "Hence, under the doctrine of consideration by paragraph, or seriatim, each part is discussed and may be amended and perfected to suit; then, without putting it to a vote for final adoption, the next part or paragraph is Similarly open to discussion and amendment, but is not voted on for final adoption yet; and, in like manner, each additional part is perfected in turn until all the parts of a proposal have been considered." George Demeter, Demeter's Manual of Parliamentary Law and Procedure 146 (1969). informal consideration. Consideration without limit on how often a member may speak to the same question. Informal consideration is substantially equivalent to consideration in committee ofthe whole or quasi committee ofthe whole, without the fiction ofthe assembly resolving itself into a committee. See committee ofthe whole under COMMITTEE. serial consideration. See consideration seriatim. 3. Hist. A court's judgment. Also termed (in Roman law) consideratio. consideration, failure of. See FAILURE OF CONSIDER ATIO::-l'. consideration, want of. See WANT OF CONSIDERATION. consideratum estper curiam (k;)n-sid-<}-ray- t<}m est p<}r kyoor-ee-<}m). [Latin] Hist. It is considered by the court. This was the formal language preceding the judgment of a common-law court. Sometimes shortened to consideratum est. Cf. IDEO CONSIDERATUM EST. "A judgment is the decision or sentence of the law, given by a court ofjustice, as the result of proceedings instituted therein for the redress of an injury. The language of the judgment is not, therefore, that 'it is decreed,' or 'resolved,' by the court, but that 'it is considered by the court,' consid eratum est per curiam, that the plaintiff recover his debt, 350 consign etc. In the early writers, considerare, consideratio always means the judgment of a court." 1 John Bouvier, Bouvier's Law Dictionary 619 (8th ed. 1914). consign (k;m-sm), vb. (16c) 1. To transfer to another's custody or charge. 2. To give (goods) to a carrier for delivery to a designated recipient. 3. To give (merchan dise or the like) to another to sell, usu. with the under standing that the seller will pay the owner for the goods from the proceeds. [Cases: Factors consignation (kon-sig-nay-sh;m), n. 1. A debtor's delivery ofmoney to an authorized third party after the creditor refuses to accept the payment. -Unlike a tender, a valid consignation discharges the debtor. Cf. TENDER (1). 2. CONSIGNMENT (1). consignator (k~n-sig-mHor), n. A person authorized to accept delivery of money from a debtor ifa creditor refuses to accept it. See CONSIGNATION. consignee (kon-sl-nee or k~n-). (18c) One to whom goods are conSigned. Cf. CONSIGNOR. consignment (bn-sIn-mant). (17c) I. The act of con signing goods for custody or sale. Also termed (archaically) consignation. [Cases: Factors 2. A quantity of goods delivered by this act, esp. in a Single shipment. 3. Under the UCC, a transaction in which a person delivers goods to a merchant for the purpose of sale, and (1) the merchant deals in goods of that kind under a name other than the name of the person making delivery, is not an auctioneer, and is not gener ally known by its creditor to be substantially engaged in selling others' goods, (2) with respect to each delivery, the aggregate value of the goods is $1,000 or more at the time of delivery, (3) the goods are not consumer goods immediately before delivery, and (4) the trans action does not create a security interest that secures an obligation. UCC 9-102(a)(20). 4. See bailment for sale under BAILMENT. consignment sale. See SALE. consignor (k~n-SI-n<lr or kon-sI-nor). (I8c) One who dis patches goods to another on consignment. Cf. CON SIGNEE. consiliarius (k;)n-sil-ee-air-ee-~s), n. [fro Latin cons ilium "adVice"]!. Roman law. A person who advises a magis trate; one who sits with the judge and assists in deciding cases. See CONCILIUM (1). 2. Hist. A counselor learned in law. See APOCRISARIUS. consimili casu. See CASU CONSIMILI. consistorial court. See CONSISTORY COURT. consistorium (kon-sis-tor-ee-am), n. [Latin] Roman law. In the later Empire, the emperor's privy council that functioned both as a general council of state and as a supreme court oflaw. consistory court (k~n-sis-tar-ee). Eccles. law. ]n England, a diocesan court exercising jurisdiction over the clergy and church property, such as a and other ecclesiastical matters. _ Consistory courts are preSided over by the bishop's chancellor or the chancellor's commissary. Also termed consistorial court. Cf. BISHOP'S COURT. consobrini (kon-s~-brI-m), n. pl. [Latin] Roman law. First cousins; children ofbrothers and sisters, or, more precisely, of two sisters. consol (kon-sol or bn-sol). See annuity bond under BOND (3). Consolato del Mare (kawn-soh-Iah-toh del mah-ray). [Italian "consolate of the sea"] Hist. Maritime law. An influential collection of European maritime customs, referred to by commercial judges (consuls) in ports of the kingdom of Aragon and other Mediterra nean maritime towns. _ The Consolato del Mare was compiled in the 14th century and soon became one of the leading maritime codes of Europe. It is widely believed to be a Spanish work, but some historians suggest its origin is actually Italian. -Also written Consolat de Mar. consolidate, vb. 1. To combine or unify into one mass or body. 2. Civil procedure. To combine, through court order, two or more actions involving the same parties or issues into a single action ending in a Single judgment or, sometimes, in separate judgments. [Cases: Action (;::::>54-59; Federal Civil Procedure (;::::>8.] 3. Corpo rations. To unite (two or more corporations or other organizations) to create one new corporation or other organization. [Cases: Corporations (;::::::>581.] consolidated appeal. See APPEAL. consolidated bond. See BOND (3). consolidated financial statement. See FINANCIAL STATE MENT. consolidated laws. See CODE (1). consolidated mortgage. See MORTGAGE. Consolidated Omnibus Budget Reconciliation Act of 1985. A federal statute requiring employers that offer group health coverage to their employees to continue to do so for a prescribed period (usu. 18 to 36 months) after employment has terminated so that the former employee can continue to benefit from group-health rates until becoming a member of another health insurance plan. -The statute temporarily continues group-health coverage for a person no longer entitled to receive it, such as a terminated employee or an overage dependent. "Qualifying events" justifying the con tinuation ofgroup-health-insurance benefits include divorce, legal separation, or the death of a spouse. So COBRA often provides critical transitional coverage until a separated, divorced, or surviving spouse and children can arrange for new health insurance. The period oftransitional coverage is up to 36 months, and an applicant spouse ofthe employee must make written application to the employer within 60 days ofthe sepa ration or divorce. -Abbr. COBRA. [Cases: Labor and Employment G~AOl.J "In the absence of any type of statutory vesting provision (which would render benefits nonforfeitable), terminated employees were generally left without health care coverage while they were looking for another job. While some state 351 insurance laws provide for limited continuation coverage or individual conversion options, these alternatives were not available in all states. .. Thus, COBRA was designed to fill this void, by providing a statutorily mandated mecha nism for enabling terminated employees (and their eligible family members) to continue to have access to group health coverage at group rates until they can get another job or otherwise arrange for replacement coverage." I.M. Golub et ai., COBRA Handbook 1.1, at 1-2 (1994). consolidated return, See TAX RETURN. consolidated school district. See SCHOOL DISTRICT. consolidated security. See SECURITY. consolidated sentence. See general sentence under SENTENCE.' consolidating statute. See STATUTE. consolidation, n. (15c) 1. The act or process of uniting; the state ofbeing united. 2. Legislation. '{he combina tion into a Single statutory measure ofvarious legisla tive provisions that have previously been scattered in different statutes. 3. Civil procedure. The court-ordered unification oftwo or more actions, involving the same parties and issues, into a Single action resulting in a Single judgment or, sometimes, in separate judgments. Fed. R. Civ. P. 42(a). Also termed consolidation of actions. Cf. JOINDER; SEVERANCE (2). [Cases: Action (;=54-59; Federal Civil Procedure (;::;:::>S.] procedural consolidation. See JOINT ADMINISTRA TION. substantive consolidation. Bankruptcy. The merger of two or more bankruptcy cases, usu. pending against the same debtor or related debtors, into one estate for purposes of distributing the assets, usu. resulting in the two estates sharing assets and liabilities, and in the extingUishment of duplicate claims and claims between the debtors. [Cases: Bankruptcy C:::>20S4.] 4. Corporations. The unification of two or more cor porations or other organizations by dissolving the existing ones and creating a Single new corporation or organization. Also termed (with respect to corpo rations) consolidation ofcorporations. Cf. MERGER (8). [Cases: Corporations C:::>5SLJ 5. Corporations. Archaic. A union ofthe stock, property, or franchises of two or more companies whereby the conduct of their affairs is permanently -or for a long period put under one management, whether the agreement between them is bv lease, sale, or other form of contract, and whether the effect is the dissolution of one, both, or neither of the companies. -consolidate, vb. consolidatory (bn-sol-;J-day-t;Jr-ee), adj. consolidation loan. See LOAN. consolidation ofactions. See CONSOLIDATION (3). consolidation of corporations. See CONSOLIDATION (4). consolidation of mortgages. Hist. '{he equitable right ofa mortgagee who holds multiple mortgages on real property owned by the same person to refuse to release one mortgage unless all the mortgages are redeemed. [Cases: Mortgages C=>309(1).] conspiracy consonant statement. See STATEMENT. consortium (bn-sor-shee-;Jm). (1836) 1. The benefits that one person, esp. a spouse, is entitled to receive from another, including companionship, cooperation, affection, aid, financial support, and (between spouses) sexual relations <a claim for loss of consortium>. See LOSS OF CONSORTIUM

and (between spouses) sexual relations <a claim for loss of consortium>. See LOSS OF CONSORTIUM; CONJUGAL RIGHTS. filial consortium (fil-ee-;Jl). A child's society, affection, and companionship given to a parent. [Cases: Parent and Child parental consortium. A parent's society, affection, and companionship given to a child. [Cases: Parent and Child C=>7.5.] spousal consortium. A spouse's society, affection, and companionship given to the other spouse. [Cases: Husband and Wife C=>209(3, 4).] 2. Hist. The services of a wife or daughter, the loss of which gives rise to a cause of action. - A husband could, for example, bring an action against a person who had injured his wife, "whereby he lost the help or compan ionship (of his wife)" (per quod consortium amisit). 3. A group of companies that join or associate in an enter prise <several high-tech businesses formed a consor tium to create a new supercomputer>. 4. Roman law. A community of undivided goods existing among coheirs after the death ofthe head of their family (paterfamil ias). PI. consortiums, consortia. consortium vitae (k,m-sor-shee-;Jm VI-tee). [Law Latin] Hist. Cohabitation; the agreement between two parties to live together. consortship (kon-sort-ship). Maritime law. An agree ment by which salvors agree to work together to salvage wrecks, the recovery being apportioned among the salvors. -Consortships reduce interference among competing salvors and help prevent collisions at sea between operators attempting to salvage the same wreck. conspicuous, adj. (1534) (Of a term or clause) clearly visible or obvious. -Whether a printed clause is con spicuous as a matter oflaw usu. depends on the size and style ofthe typeface. Under the UCC, a term or clause is conspiCUOUS if it is written in a way that a reasonable person against whom it is to operate ought to notice it. UCC 1-201(10). See FINE PRINT. [Cases: Sales C=>267.] conspicuous place. (lSc) For purposes of posting notices, a location that is reasonably likely to be seen. conspiracy, n. (14c) An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement's objective, and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose. 18 USCA 371. _ Conspiracy is a separate offense from the crime that is the object ofthe conspiracy. A conspiracy ends when the unlawful act has been committed or (in some states) when the agreement has been abandoned. A conspiracy does not automatically end ifthe conspiracy's object is 352 conspirator defeated. See Model Penal Code 5.03(7); United States v. Jiminez Recio, 537 U.S. 270, 123 S.Ct. 819 (2003). Also termed criminal conspiracy. Cf. ATTEMPT (2); SOLICITATION (2). [Cases: Conspiracy ~1.1,23.1.] conspiratorial, adj. "Conspiracie (conspiratio) though both in Latine and French it be used for an agreement of men, to doe any thing either good or bad: yet in our lawyers bookes, it is alway taken in the evill part." John Cowell, The Interpreter (1607). "[Conspiracy is an] elastic, sprawling and pervasive offense, ... so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleonlike, takes on a special coloration from each of the many independent offenses on which it may be overlaid. It is always 'predominantly mental in composition' because it consists primarily of a meeting of minds and an intent." Krulewitch v. United States, 336 U.S. 440, 445-48, 69 S.Ct. 716, 719-20 (1949) (Jackson,J., concurring). "When two or more persons combine for the purpose of inflicting upon another person an injury which is unlawful in itself, or which is rendered unlawful by the mode in which it is inflicted, and in either case the other person suffers damage, they commit the tort of conspiracy." P.H. Winfield, A Textbook of the Law of Tort 128, at 434 (5th ed. 1950). bathtub conspiracy. See intra-enterprise conspiracy. chain conspiracy. (1959) A single conspiracy in which each person is responsible for a distinct act within the overall plan, such as an agreement to produce, import, and distribute narcotics in which each person performs only one function . All participants are interested in the overall scheme and liable for all other participants' acts in furtherance of that scheme. [Cases: Conspiracy ~24(3).1 "In a 'chain' conspiracy, the court looks to whether the parties serve as links in a chain. In Blumenthal v. United States (1947), the Supreme Court found that the parties had agreed to sell liquor at prices exceeding the ceiling set by regulations of the Office of Price Administration. The Court found that the agreements were steps in the formulation of one larger general conspiracy. By reason of all having knowledge of the plan's general scope and common end, the disposing of whiskey, they could be drawn together in a single conspiracy." Ellen S. Podgor &Jerold H. Israel, White Collar Crime in a Nutshell 52 (2d ed. 1997). circle conspiracy. See wheel conspiracy. civil conspiracy. (1901) An agreement between two or more persons to commit an unlawful act that causes damage to a person or property. [Cases: Conspiracy ~1.1.1 conspiracy in restraint oftrade. See RESTRAINT OF TRADE. conspiracy to infringe. Intellectual property. An agree ment by two or more persons to commit an act that would interfere with the exclusive rights of a patent, copyright, or trademark owner. This action is commonly recognized in trademark law. 18 USCA 371; 17 USCA 506(a)(l). The Copyright Act does not provide a basis for alleging a conspiracy to infringe, but an action is recognized by some states. The Patent Act provides no basis for an action assert ing conspiracy to infringe because patent law covers only acts, not threats ofacts. [Cases: Conspiracy ~ 8.] conspiracy to monopolize. Antitrust. A conspiracy to take exclusive control of a commercial market . Under 2 ofthe Sherman Act, a conspiracy to monop olize exists ifthere is a conspiracy or concerted action directed at a substantial part ofinterstate commerce with the intent to acquire monopoly power. [Cases: Antitrust and Trade Regulation ~625.] hub-and-spoke conspiracy. See wheel conspiracy. intracorporate conspiracy. A conspiracy existing between a corporation and its own officers, agents, or employees . To be prosecutable under federal law, the conspiracy must involve at least two persons (Le., not just the corporation and one person). 18 USCA 371. A corporation cannot conspire with its employ ees, and its employees, acting in the scope of their employment, conspire among themselves. McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1035 (11th Cir. 2000). [Cases: Conspiracy ~2,40; Corpora tions ~496.1 intra-enterprise conspiracy. Antitrust. A conspiracy existing between two subsidiaries, divisions, or other parts of the same firm. -Also termed bathtub con spiracy. seditious conspiracy. (1893) A criminal conspiracy to forcibly (1) overthrow or destroy the U.S. government, (2) oppose its authority, (3) prevent the execution of its laws, or (4) seize or possess its property. 18 USCA 2384. [Cases: Conspiracy~28(3).1 wheel conspiracy. (1959) A conspiracy in which a single member or group (the "hub") separately agrees with two or more other members or groups (the "spokes"). The person or group at the hub is the only party liable for all the conspiracies. -Also termed circle conspiracy; hub-and-spoke conspiracy. [Cases: Con spiracy ~24(3).1 conspirator, n. (15c) A person who takes part in a con spiracy. unindicted conspirator. See unindicted coconspirator under COCONSPIRATOR. conspire, vb. To engage in conspiracy; to join in a con spiracy. constable (kon-st<:l-b<:ll), n. (13c) 1. A peace officer responsible for minor judicial duties, such as serving writs and warrants, but with less authority and smaller jurisdiction than a sheriff. 2. In the United Kingdom, a police officer; also, the title ofa police officer. [Cases: Sheriffs and Constables ~8.1 -constabulary (k<:ln stab-Y<:l-ler-ee), adj. -constabulary (police station or force), n. constablewick (kon-st<:l-b<:ll-wik). Hist. In the United Kingdom, the territorial jurisdiction of a constable. Cf. BAILIWICK. constant dollars. The value ofcurrent money expressed as a percentage ofits buying power in a previous year as 353 constitution determined by the consumer price index. -This value is used as a measure of inflation. constat (kon-stat), n. [Latin "it is settled"] Hist. A cer tificate made by the Clerk of the Pipe and the auditors of the Exchequer at the request of a person intending to plead in the Court of Exchequer for the discharge of some item. _ The constat certified what appeared on record. constat de persona (kon-stat dee pdr-soh-nd). [Law Latin] Hist. It is evident what person was meant. _ A writing that misidentified a person was enforceable if the true identity of the person was evident from the remainder. of the document. See DUMMODO CONSTET DE PERSONA. constat de subjecto (kon-stat dee sGb-jek-toh). [Law Latin) Hist. It is clear as to the subject matter (of a transaction). . constate (kGn-stayt), vb. To establish, constitute, or ordain. -Constate usu. appears in relation to corporate documents; for example, a corporation is constated by its charter, organic law, or grant of powers to it. constituency. 1. The body of citizens dwelling in a defined area and entitled to elect a representative. 2. The residents of an electoral district. constituency-based quorum. See interest-based quorum under QUORUM. constituent, adj. 1. (Of a component) that helps make up or complete a unit or a whole <a constituent element of the criminal offense>. 2. (Of an assembly) able to frame or amend a constitution <a constituent council>. constituent, n. (17c) 1. A person who gives another the authority to act as a representative; a principal who appoints an agent. 2. Someone who is represented by a legislator or other elected official. 3. One part ofsome thing that makes up a whole; an element. constitu ency, n. ,constituent element. An essential component ofa crime or cause of action. constituere (kon-sti-tyoo-G-ree), vb. [Latin "to appoint"] Hist. To appoint (someone). -Constituere was used principally in powers of attorney: attornavi et in loco mea constitui ("I have attorned and put in my place"). constituted annuity. See ANNUITY. constituted authority. See AUTHORITY (3). constitutio (kon-sti-t[y]oo-shee-oh), n. [Latin "a decree"] 1. Roman law. An imperial decree; a law issued by the emperor; later, in the plural form constitutiones, a col lection oflaws. -The eonstitutiones took various forms, including orationes (laws submitted to the Senate), edieta (laws usu. of a general character put forth by the emperor), mandata (administrative directives to imperial officials), decreta (decisions by the emperor in legal cases), and reseripta (the emperor's responses to questions posed by litigants or imperial officials). Over time, the rapidly increasing number of eonstitutiones prompted their arrangement into collections such as the Theodosian Code and the Code of Justinian. They were the sole form oflegislation after the third century A.D. PI. constitutiones (kon-sti-t[yjoo-shee-oh-neez). Also termed (collectively) eonstitutiones principum. See CODEX THEODOSIANUS; JUSTINIAN CODE. "The name constitutiones, applied to the law-making utterances of the Roman emperors, had a very different meaning from our word 'constitution,' used to denote the fundamental, organic law of the state, Every official public document issuing from the emperor, and creating, declaring, or modifying law, was a constitutio . ... [Alnd it is hardly necessary to say that, although profeSSing to come from the person of the emperor, they were actually composed by jurists, and usually by those who stood first in their profession." James Hadley, Introduction to Roman Law 6-7 (1881). 2. Civil law. A settlement achieved without a trial; the sum paid according to the settlement. 3. Hist. In England, a statute; a provision of

without a trial; the sum paid according to the settlement. 3. Hist. In England, a statute; a provision of a statute. PI. consti tutiones (kon -sti-t[yJoo-shee-oh- neez). constitution. (18c) 1. The fundamental and organic law ofa nation or state that establishes the institutions and apparatus ofgovernment, defines the scope ofgovern mental sovereign powers, and guarantees individual civil rights and civil liberties. [Cases: Constitutional Law C='500.] 2. The written instrument embodying this fundamental law, together with any formal amend ments. flexible constitution. A constitution that has few or no special amending procedures. -The British Constitu tion is an example. Parliament can alter constitutional principles and define new baselines for government action through ordinary legislative processes. The Canadian Constitution also grants its legislature some limited ability to amend the Constitution by legislation. rigid constitution. A constitution whose terms cannot be altered by ordinary forms of legislation, only by special amending procedures. _ The U.S. Constitu tion is an example. It cannot be changed without the consent of three-fourths of the state legislatures or through a constitutional convention. U.S. Const. art. V. unwritten constitution. 1. The customs and values, some of which are expressed in statutes, that proVide the organic and fundamental law of a state or country that does not have a Single written document func tioning as a constitution. -In British constitutional law, the constitution is a collection of historical docu ments, statutes, decrees, conventions, traditions, and royal prerogatives. Documents and statutes include Magna Carta (1215), the Bill of Rights (1689), and the European Communities Act (1972). 2. The implied parts of a written constitution, encompassing the rights, freedoms, and processes considered to be essential, but not explicitly defined in the written document. -Many aspects of an unwritten consti tution are based on custom and precedent. The U.S. Constitution does not, for example, give the Supreme Court the power to declare laws unconstitutional but the Court does so without question. Nor does the Constitution expressly guarantee a right of privacy, but the Supreme Court has declared that the right exists and is protected. See PENUMBRA; RIGHT OF PRIVACY. 3. A nation's history ofgovernment and institutional development. _ This was the standard definition before the United States produced the first written constitu tion. It remains current in Great Britain and other nations that have unwritten constitutions. 4. Parlia mentary law. A governing document adopted by an organization for its internal governance and its external dealings. _ The constitution may be an organization's most authoritative governing document, but if the organization has also received a charter or adopted articles of incorporation or association, then the con stitution is subordinate to them. If the organization has also adopted bylaws, then the bylaws are subordinate to (and usu. more easily amended than) the constitution. The constitution and bylaws are sometimes contained in a single document. See governing document under DOCUMENT. Cf. BYLAW (1). constitutional, adj. (18c) 1. Ofor relating to a constitu tion <constitutional rights>. 2. Proper and valid under a constitution <constitutional actions>. constitutional challenge. See CHALLENGE (1). constitutional convention. See CONVENTION (2). constitutional court. See COURT. constitutional-fact doctrine. 1. The rule that federal courts are not bound by an administrative agency's findings of fact when the facts involve whether the agency has exceeded constitutional limitations on its power, esp. regarding personal rights. -The courts reviewed the facts de novo to afford protection of con stitutional rights. Although it has not been overruled or wholly discredited, this rule has fallen out of favor. [Cases: Administrative Law and Procedure C:=>783, 784.1.] 2. The rule that a federal appellate court is not bound by a trial court's findings of fact when consti tutional rights are implicated, specifically in citizen ship-determination and First Amendment cases. See, e.g., Bose Corp. v. Consumers Union, 466 U.S. 485,104 S.Ct. 1949 (1984). Cf. JURISDICTIONAL-FACT DOCTRINE. [Cases: Federal Courts constitutional freedom. (1822) A basic liberty guaran teed by the Constitution or Bill of Rights, such as the freedom of speech. -Also termed constitutional pro tection; constitutional liberty. constitutional guarantee. A promise contained in the United States Constitution that supports or establishes an inalienable right, such as the right to due process. [Cases: Constitutional Law C:=> 1050.J constitutional homestead. See HOMESTEAD. constitutional immunity. See IMMUNITY (1). constitutionality, n. The quality or state of being con stitutional <the constitutionality ofthe senator's bill is questionable>. constitutionalize, vb. (1831) 1. To provide with a consti tution <constitutionalize the new government>. 2. To make constitutional; to bring in line with a constitution <the court plans to constitutionalize the segregated school district>. 3. To make a constitutional question out of (a question oflaw); to subject (issue, etc.) to the burden of passing constitutional muster <the dissenter accused the majority of unnecessarily constitutional izing its the issue>. constitutional law. (18c) 1. The body of law deriving from the U.S. Constitution and dealing primarily with governmental powers, civil rights, and civil liberties. 2. The body oflegal rules that determine the constitution of a state or country with an unwritten constitution. Cf. STATUTORY LAW; COMMON LAW. 3. The field ofIaw dealing with aspects ofconstitutional provisions, such as restrictions on government powers and guarantees of rights. constitutional liberty. See CONSTITUTIONAL FREEDOM. constitutional limitation. (18c) A constitutional provi sion that restricts the powers ofa governmental branch, department, agency, or officer. constitutional majority. See majority ofall the members under MAJORITY. constitutional malice. See actual malice (2) under MALICE. constitutional monarchy. See limited monarchy under MONARCHY. constitutional office. A public position that is created by a constitution, rather than by a statute. constitutional officer. See OFFICER (1). constitutional protection. See CONSTITUTIONAL FREEDOM. constitutional question. (18c) A legal issue resolvable by the interpretation of a constitution, rather than a statute. constitutional right. (18c) A right guaranteed by a con stitution; esp., one guaranteed by the U.S. Constitution or by a state constitution. constitutional taking. See TAKING (2). constitutional tort. See TORT. constitutiones principum (kon-sti-t[yJoo-shee-oh-neez prin-sip-a). [LatinJ See CONSTITUTIO. Constitutions ofClarendon. Hist. A 12th-century state ment of customary law, produced during the reign of Henry II, intended to limit the jurisdiction of the eccle siastical courts and narrow the clergy's exemption from secular justice. "During the first half of the twelfth century the claims of the church were growing, and the duty of asserting them passed into the hands of men who were not mere theo logians but expert lawyers. Then, as ali know, came the quarrel between Henry and Becket. In the Constitutions of Clarendon (1164) the king offered to the prelates a written treaty, a treaty which, so he said, embodied the 'customs' of his ancestors, more especially of his grandfa ther. Becket, after some hesitation, rejected the constitu tions. The dispute waxed hot; certain of the customs were condemned by the pope. The murder followed .... [F] rom [Henry's] time onwards the lay courts, rather than the 355 spiritual, are the aggressors and the victors in almost every contest:' 1 Frederick Pollock & Frederic W, Maitland, The History of English Law 124~25 (2d ed, 1898), constitutor (kon-stJ-t[y]oo-tJr), n. [Latin "an orderer, arranger"] Roman law. A person who, by agreement, becomes responsible for the payment ofanother's debt. constitutum (kon-sti-t[y]oo-tdm), n. [Latin "agreed arrangement"] Roman law. 1. An agreement to pay an existing debt, either one's own or another's, on a fixed day. A constitutum was not a novation; the creditor could still sue the original debtor. It differed from a stipulation because it had to be for an existing debt. If the pron1ise was to pay one's own debt, it was called constitutum debiti proprii. Ifit was to pay another's debt, then it was constitutum debiti alieni. 2. The fixing ofa day for the repayment of money owed. constitutum debit; (kon-sti-t[y]oo-tJm deb-J-tI). [Latin "debt agreement"] Roman law. See CONSTITUTUM (1). constitutum debiti alieni (kon-sti-t[y]oo-tJm deb-J-tI ay-Iee-J-nI). [Latin" debt agreement"] Roman law. See CONSTITUTUM (1). constitutum debiti proprii (kon-sti-t[y]oo-tJm deb-J-tI proh-pree-I). [Latin "debt agreement"] Roman law. See CONSTITUTUM (1). constitutum possessorium (kon-sti-t[y]oo-tam pah-ses sor-ee-am). [Latin "possessory agreement"] Roman law. 1. A type of constructive delivery in which mediate possession is transferred while the immediate control or custody remains in the transferor. 2. The agree ment by which this transfer is brought about. In the context ofa security interest, the pledged property may remain in the possession of the debtor, but as bailee of the creditor. For the other two types of construc tive delivery, see ATTORNMENT; BREVI MANU. Also termed traditio longa manu (tra-dish-ee-oh long-gJ man-yoo). "[Another] form of constructive delivery is that which the commentators on the civil law have termed constitutum possessiorum . , . , Any thing may be effectually delivered by means of an agreement that the possessor of it shall for the future hold it no longer on his own account but on account of someone else, . , . [I]f I buy goods from a warehouseman, they are delivered to me so soon as he has agreed with me that he will hold them as warehouseman on my account. The position is then exactly the same as if I had first taken actual delivery of them, and then brought them back to the warehouse, and deposited them there for safe custody," John Salmond, Jurisprudence 306 (Glanville L. Williams ed., 10th Ed. 1947). construction, n. (14c) 1. The act ofbuilding by combin ing or arranging parts or elements; the thing so built. 2. The act or process of interpreting or explaining the sense or intention of a writing (usu. a constitution, statute, or instrument); the ascertainment of a docu ment's meaning in accordance with judicial standards. [Cases: Contracts 143; Statutes C=' 174.] con struct (for sense 1), vb. construe (for sense 2), vb. "Construction, as applied to written law, is the art or process of discovering and expounding the meaning and intention of the authors of the law with respect to its application to a given case, where that intention is rendered doubtful either by reason of apparently conflicting provisions or construction directions, or by reason of the fact that the given case is not explicitly provided for in the law:' Henry Campbell Black, Handbook on the Construction and Interpretation of the Laws 1 (1896), "Some authors have attempted to introduce a distinction between 'interpretation' and 'construction.' Etymologically there is, perhaps, such a distinction; but it has not been accepted by the profession. For practical purposes any such distinction may be ignored, in view of the real object of both interpretation and construction, which is merely to ascertain the meaning and will of the lawmaking body, in order that it may be enforced." William M. Lile et aI., Brief Making and the Use ofLaw Books 337 (3d ed. 1914). "There is no explanation of the distinction between inter pretation and construction [in Blackstone], nor can it be inferred from the matters dealt with under each head, The distinction is drawn in some modern works, but it is not taken in this book because it lacks an agreed basis. Some writers treat interpretation as something which is only called for when there is a dispute about the meaning of statutory words, while speaking of construction as a process to which all statutes, like all other writings, are nec essarily subject when read by anyone. Others treat inter pretation as something which is mainly concerned with the meaning of statutory words, while regarding construction as a process which mainly relates to the ascertainment of the intention of the legislature." Rupert Cross, Statutory Interpretation 18 (1976). construction ut res magis valeat quam pereat (bn strak-sh;)n at rays [or reez or rezl may-jis vay-Iee-at kwam peer-ee-at). [Latin "a construction that gives effect to the matter rather than haVing it fail"] A construction arrived at when alternative readings are possible, one ofwhich (usu. the broader reading) would achieve the manifest purpose ofthe document and one ofwhich (usu. the narrower reading) would reduce it to futility or absurdity, whereby the inter preter chooses the one that gives effect to the docu ment's purpose. [Cases: Contracts

, whereby the inter preter chooses the one that gives effect to the docu ment's purpose. [Cases: Contracts 153; Patents 0157(2); Statutes C--:-:>181(2).] contemporaneous construction. An interpretation given at or near the time when a writing was prepared, usu. by one or more persons involved in its prepara tion. -Also termed practical construction; practical interpretation; contemporaneous and practical inter pretation. See CONTEMPORANEOUS-CONSTRUCTION DOCTRINE. [Cases: Contracts 170; Statutes 218,219(1).J liberal construction. (17c) An interpretation that applies to a writing in light ofthe situation presented and that tends to effectuate the spirit and purpose of the writing. Also termed eqUitable construction; loose construction; broad interpretation. Cf. strict con struction. [Cases: Contracts C::::-143.] "liberal construction. , . expands the meaning of the statute to embrace cases which are clearly within the spirit or reason of the law, or within the evil which it was designed to remedy, provided such an interpretation is not inconsistent with the language used. It resolves all reason able doubts in favor of the applicability of the statute to the particular case." William M. Lile et aI., BriefMaking and the Use ofLaw Books 343 (3d ed. 1914), literal construction. See strict construction. loose construction. See liberal construction. practical construction. See contemporaneous construc tion. purposive construction (pdr-pd-siv). An interpreta tion that looks to the "evil" that the statute is trying to correct (i.e., the statute's purpose). Also termed teleological interpretation. See liberal construction. statutory construction. See STATUTORY CONSTRUC TION. strict construction. (16c) 1. An interpretation that considers only the literal words ofa writing. Also termed literal construction; literal interpretation. See STRICT CONSTRUCTIONISM. [Cases: Contracts 143.J 2~ A construction that considers words narrowly, usu. in their historical context. _ This type of con struction treats statutory and contractual words with highly restrictive readings. -Also termed strict inter pretation. 3. The philosophy underlying strict inter pretation ofstatutes. See strict constructionism under CONSTRUCTIONISM. [Cases: Statutes <>:::) 189,235.] "Strict construction of a statute is that which refuses to expand the law by implications or equitable consider ations, but confines its operation to cases which are clearly within the letter of the statute, as well as within its spirit or reason, not so as to defeat the manifest purpose of the Legislature, but so as to resolve all reasonable doubts against the applicability of the statute to the particular case." William M. Lile et aI., BriefMaking and the Use ofLaw Books 343 (3d ed. 1914). "Strict interpretation is an equivocal expression, for it means either literal or narrow. When a provision is ambigu ous, one of its meanings may be wider than the other, and the strict (Le.. narrow) sense is not necessarily the strict (Le., literal) sense." John Salmond, Jurisprudence 171 n.(t) (Glanville L Williams ed., 10th ed. 1947). construction bond. See BOND (3). construction contract. See CONTRACT. construction financing. See interim financing under FINANCING. constructionism. A judicial approach to interpreting the text ofstatutes, regulations, constitutions, and the like. broad constructionism. See liberal constructionism. liberal constructionism. Broad interpretation of a text's language, including the use of related writings to clarify the meanings ofthe words, and possibly also a consideration of meaning in both contemporary and current lights. -Also termed broad construc tionism; loose constructionism. loose constructionism. See liberal constructionism. strict constructionism, n. (1892) The doctrinal view of judicial construction holding that judges should interpret a document or statute (esp. one involving penal sanctions) according to its literal terms, without looking to other sources to ascertain the meaning. Also termed strict construction; literal canon; literal rule; textualism.[Cases: Contracts (;:::;; 143(1); Statutes 241(1).] -strict constructionist, n. constructionist. One who interprets a controlling text, such as a statute, constitution, or the like. broad constructionist. See liberal constructionist. liberal constructionist. A decision-maker who derives the meaning of a text's language not only from the words but from reasonable inferences drawn from the words and from other sources, such as a statute's legislative history. -A liberal constructionist may also consider the reasonableness ofan interpretation under modern social mores. Also termed broad constructionist, loose constructionist. See liberal con structionism under CONSTRUCTIONISM. Cf. strict con structionist. loose constructionist. See liberal constructionist. strict constructionist. A decision-maker who derives a text's meaning narrowly, using tools such as original ism or textualism, and applies the text according to that meaning. See ORIGINALISM; strict construction ism under CONSTRUCTIONISM. Cf. liberal construc tionist. "Under the stimulus of political agitation in the early days of the republic over the powers conferred by the constitu tion two rival schools of interpretations sprang up. The ones terming themselves strict constructionists held that the language of the constitution should be construed lit erally and conservatively, while the other party held with equal fervor that the instrument should be construed lib erally and according to the spirit rather than the so that they were denominated loose constructionists. Jesse Franklin Brumbaugh, Legal Reasoning and Briefing 129(1917). construction lien. See mechanic's lien under LIEN. construction loan. See building loan under LOAN. construction mortgage. See MORTGAGE. construction statute. See STATUTE. construction warranty. See WARRANTY (2). constructive, adj. (17c) Legally imputed; existing by virtue of legal fiction though not existing in fact. _ Courts usu. something a constructive effect for equitable reasons <the court held that the shift supervi sor had constructive knowledge ofthe machine's failure even though he did not actually know until two days later>. See LEGAL FICTION. Cf. ACTUAL. constructive abandonment. 1. Family law. See construc tive desertion under DESERTION. 2. Intellectual property. ABANDONMENT (10). constructive adverse possession. See ADVERSE POSSES SION. constructive amendment of indictment. See AMEND MENT OF INDICTMENT. constructive assent. See ASSENT. constructive authority. See AUTHORITY (1). constructive bailment. See BAnMEKT. constructive breach. See anticipatory breach under BREACH OF CONTRACT. constructive breaking into a house. See constructive housebreaking under HOUSEBREAKING. constructive condemnation. See inverse condemnation under CONDEMNATION. 357 constructive condition. See CONDITION (2). constructive contempt. See indirect contempt under CONTEMPT. constructive contract. See implied-in-Iaw contract under CONTRACT. constructive conversion. See CONVERSION (2). constructive crime. See CRIME. constructive custody. See CUSTODY (1). constructive delivery. See DELIVERY. constructive desertion. See DESERTION. constructive,discharge. See DISCHARGE (7), constructive dividend. See DIVIDEND. constructive emancipation. See EMANCIPATION. constructive escape. See ESCAPE (2). constructive eviction. See EVICTION. constructive force. See FORCE. constructive fraud. See FRAUD. constructive housebreaking. See HOUSEBREAKING. constructive inteut. See INTENT (1). constructive knowledge. See KNOWLEDGE. constructive larceny. See LARCENY. constructive loss. See constructive total loss (1) under LOSS. constructive malice. See implied malice under MALICE. constructive murder. Seefelony murder under MURDER. constructive notice. See NOTICE. constructive occupancy. See OCCUPANCY. constructive parent. See equitable parent under PARENT. constructive payment. See PAYMENT. c;onstructive possession. See POSSESSION. constructive presence. See PRESENCE. constructive-receipt doctrine. (1936) The rule that gross income under a taxpayer's control before it is actually received (such as accumulated interest income that has not been withdrawn) must be included by the taxpayer in gross income, unless the actual receipt is subject to significant constraints. IRC (26 USCA) 451. [Cases: Internal Revenue ~3081, 3118.] constructive reduction to practice. See REDUCTION TO PRACTICE. constructive search. See SEARCH. constructive seisin. See seisin in law under SEISIN. constructive seizure. See SEIZURE. constructive service. 1. See SERVICE (2). 2. See DOCTRINE OF CONSTRUCTIVE SERVICE (2). constructive taking. See TAKING (1). constructive total loss. See LOSS. constructive transfer. See TRANSFER. consul constructive treason. See TREASON. constructive trespass. See trespass to chattels under TRESPASS. constructive trust. See TRUST. construe (bn-stroo), vb. (14c) To analyze and explain the meaning of(a sentence or passage) <the court con strued the language of the statute>. constuprate (kon-st[y]<l-prayt), vb. Archaic. To rape or violate (a person). consuetudinarius (kon-swd-t[y]oo-di-nair-ee-ds). [fro Latin consuetudo "custom"] Hist. Eccles. law. A book containing the rites and forms of divine offices or customs ofabbeys and monasteries. consuetudinary law. See LAW. Consuetudines Feudorum (kon-swd-t[y]oo-di-neez fyoo-dor-dm). [Law Latin "the customs of fiefs"] Hist. See FEUDORUM LIBRI. consuetudinibus et serviciis (kon-swd-t[y]oo-din-d-bds et sdr-vish-ee-is). [Law Latin "customs and services"] Hist. A writ of right that lay against a tenant who withheld rent or services from the lord. consuetudo (kon-swd-t[y]oo-doh), n. [Latin "custom"]!. Roman law. Custom; long-established usage or practice. 2. Hist. Customary law. _ Consuetudo generally bears this sense, referring to law that has been long approved by the will ofthe people. It is a broad term that includes both the common law and the statutory law ofEngland. 3. Hist. A duty or tax. consuetudo anglican a (kon-swd-t[yJoo-doh ang-gli kay-nd). [Law Latin "the custom of England"] Hist. The English common law, as distinguished from Roman or civil law. consuetudo curiae (kon-sw<l-t[y]oo-doh kyoor-ee-ee). [Latin] Hist. The custom or practice ofa court. consuetudo mercatorum (kon-swa-t[y]oo-doh mdr-kd tor-dm). [Latin "the custom of merchants"] Hist. See LAW MERCHANT. -Also termed consuetudo merca toria. consul (kon-sal), n. 1. A governmental representative living in a foreign country to oversee commercial and other matters involving the representative's home country and its citizens in that foreign country. Consuls are not diplomatic agents, so unless a treaty provides otherwise, they do not enjoy diplomatic privileges and immunities. But consuls are entitled to consular immunities, which protect them from local law and jurisdiction in the exercise oftheir consular functions. [Cases: Ambassadors and Consuls 1-8.] consular (kon-s<'l-ldr), adj. consulship (kon sdl-ship), n. "The commerCial agents of a government, residing in foreign parts, and charged with the duty of promoting the commercial interests of the state, and especially of its indi vidual citizens or subjects, are called consuls. These, under the regulations of some countries, are of different grades, being either consuls-general. consuls, or vice-consuls, from whom consular agents differ little." Theodore D. Woolsey, consular court 358 Introduction to the Study of International Law 99, at 159 (5th ed. 1878). "Consuls are commercial, not diplomatic agents. They reside abroad for the purpose of protecting the individual interests of traders, travellers, and mariners belonging to the 5tate which employs them .... They exercisejurisdic tion over their countrymen, their persons are inviolable, their residences may be used as asylums in the case of war or tumult, and in fact they more than the ordinary diplomatiC immunities." T.). A Handbook ofPublic International Law 86-87 (lOth ed. 1925). "Consuls are not diplomatic agents; they perform various services for a state or its subjects in another state, without, however, representing the former in the full sense. They may be nationals of either and generally they are made subject to the authority diplomatic representa' tive of the state for which they act. They watch over com mercial interests of the state for which they act; collect information for it; help its nationals with advice, administer their property if they die abroad, and register their births, deaths, and marriages; they authenticate documents for legal purposes, take depositions from witnesses, visa passports, and the like." j.L. Brierly, The Law of Nations 216 (5th ed

visa passports, and the like." j.L. Brierly, The Law of Nations 216 (5th ed. 1955). "The usual criterion used for the distinction between dip lomats and consuls is the representative character of the former of which the latter are devoid. However, this dis tinction is not altogether correct. Undoubtedly diplomatic agents have a general representative character since in all matters and relations they represent their country in the state to which they are accredited. Consuls, on the other hand, as state organs, also represent their country in another state, but only in matters within their competence. Thus, the representative character of consuls is, like their competence, specific, and secondary to that of diplomatic agents." Constantin Economides, "Consuls," in 1 Encvclo pedia of Public International Law 770 (1992). consul general. A high-ranking consul appointed to a strategically important region and often having super visory powers over other regions or other consuls. 2. Roman law. One of two chief magistrates elected annually during the Republic to exercise supreme authority. _ Under the Empire, the consulship was reduced to a sinecure, held by appointees of the emperor or the emperor himself. 'The prinCipal inheritors ofthe royal authority and dignity were the two consuls elected by the comitia centuriata. They enjoyed equal powers. In the calendar the year was distinguished by their names. They convoked and initi ated legislation in either comitia. In special emergencies, particularly in times of grave crisiS, either consul might appoint a dictator who exercised supreme authority, but not beyond six months, unless re-appointed .... it was abolished by Justinian in A.D. 541, though later emperors continued to assume the title." R.w. Lee, The Elements of Roman Law 14 (4th ed. 1956). consular court. See COURT. consular invoice. See INVOICE. consular jurisdiction. The exercise ofa judicial function by a consul in a foreign territory, as by performing a wedding ceremony between nationals of the country represented by the consul. [Cases: Ambassadors and Consuls (;::::::>S.J consular law. The law relating to consuls, developed through custom and multitudes of bilateral consular agreements. consular marriage. See MARRIAGE (1). consular relations. Int'llaw. The aggregate of relations established between two countries through the exercise ofconsuls' functions on behalf ofa sending state within the territory of a receiving state. See sending state and receiving state under STATE. consulate (kon-s;J-lit). 1. The office or jurisdiction of a consul <the senator advised the businessman to notify the U.S. consulate in Kuwait before the countrv>. [Cases: Ambassadors and Consuls 2. The iocation of a consul's office or residence family was staying on the second floor, just above the Turkish consulate>. foreign consulate. The consulate ofa foreign country in the receiving state. 3. Government by consuls <after the French Revolu tion, the Directory was overthrown and the Consulate was created>. -This sense ofconsulate is based on the original Roman meaning ("chief magistrate") not on the modern sense of an overseas representative of a country. consul general. See CONSUL. consultation, n. (lSc) 1. The act of asking the advice or opinion of someone (such as a lawyer). 2. A meeting in which parties consult or confer. 3. Int'llaw. The interac tive methods by which states seek to prevent or resolve disputes. -consult, vb. consulting, consultative, adj. consultative exam. As a foundation for an expert opinion, a check-up performed by a qualified medical professional to determine whether a person has a mental or physical disability, and, if so, the extent of the disability and expectations for improvement. consulting expert. See EXPERT. consumable, n. (1802) A thing (such as food) that cannot be used without changing or extinguishing its sub stance. Cf. NONCONSUMABLE. consumable, adj. consumer. (ISc) A person who buys goods or services for personal, family, or household use, with no intention of resale; a natural person who uses products for personal rather than business purposes. [Cases: Antitrust and Trade Regulation (;:::;> 141.] consumer boycott. See BOYCOTT. consumer confusion. Trademarks. The incorrect percep tion formed by a purchaser or user about a product's or service's manufacturer or origin. -The mistake usu. occurs when a product or service is marketed in a way that makes it appear to be affiliated with a well-known product, service, or provider. Also termed actual consumer confusion; user confusion; actual user confu sion. [Cases: Consumer Credit consumer-contemplation test. (1979) A method of imposing product liability on a manufacturer if the evidence shows that a product's danger is greater than that which a reasonable consumer would expect. Also termed cOrlsumer-user-corltemplation test; con 359 sumer-expectation test. Cf. RISK-UTILITY TEST. [Cases: Products Liability C=::' 119, 130.] consumer credit. See CREDIT (4). Consumer Credit Code. See UNIFORM CONSUMER CREDIT CODE. Consumer Credit Protection Act. A federal statute that safeguards consumers in the use of credit by (1) requiring full disclosure of the terms of loan agree ments, including finance charges, (2) restricting the garnishment of wages, and (3) regulating the use of credit cards. 15 USCA 1601-1693. Many states have also adopted consumer-credit-protection acts. - Abbr. CCPA. -Also termed Truth in LendingAct (abbr. TILA). See UNIFORM CONSUMER CREDIT CODE. [Cases: Consumer Credit C=::'30.] consumer-credit sale. See SALE. consumer-credit transaction. (1954) A transaction by which a person receives a loan to buy consumer goods or services. Consumer-credit transactions are usu. subject to regulations enacted for the consumer's pro tection. [Cases: Consumer Credit C=::' 1, 3.] consumer debt. See DEBT. consumer-expectation test. See CONSUMER-CONTEM PLATION TEST. consumer finance company. See FINANCE COMPANY. consumer goods. See GOODS. consumer-goods transaction. Secured transactions. A transaction in which (1) an individual incurs an obli gation primarily for a personal, family, or household purpose, and (2) a security interest in consumer goods secures the obligation. UCC 9-102(a)(24). [Cases: Secured Transactions C=::' 15.] consumer law. (1966) The area of law dealing with consumer transactions -that is, a person's obtaining credit, goods, real property, or services for personal, family, or household purposes. -Also termed con sumer-transactions law. consumer lease. See LEASE. consumer loan. See LOAN. consumer price index. An index that tracks the price of goods and services purchased by the average consumer and that is published monthly by the U.S. Bureau of Labor Statistics . The consumer price index is used to monitor periodic changes in the rate ofinflation. - Abbr. CPr. -Also termed cost-oj-living index. Cf. PRODUCER PRICE INDEX. consumer product. (1949) An item ofpersonal property that is distributed in commerce and is normally used for personal, family, or household purposes. 15 USCA 2301(1). Consumer Product Safety Commission. An indepen dent federal regulatory commission that develops safety standards for consumer products and promotes research into the causes and prevention of product related deaths, illnesses, and injuries. It was estabcontango lished in 1972. 15 USCA 2051 et seq. -Abbr. CPsc. [Cases: Antitrust and Trade Regulation C=::'232.] consumer-protection law. (I954) A state or federal statute designed to protect consumers against unfair trade and credit practices involving consumer goods, as well as to protect consumers against faulty and dan gerous goods. [Cases: Antitrust and Trade Regulation C=::' 128; Consumer Credit C=::' 1.] consumer transaction. A bargain or deal in which a party acquires property or services primarily for a personal, family, or household purpose. consumer-transactions law. See CONSUMER LAW. consumer-user-contemplation test. See CONSUMER CONTEMPLATION TEST. consummate (bn-sam-it or kahn-sa-mit), adj. Com pleted; fully accomplished . Consummate was often used at common law to describe the status ofa contract or an estate, such as the transformation ofa husband's interest in his wife's inheritance from that ofa tenant by the curtesy initiate to a tenant by curtesy consummate upon the wife's death (assuming that a child had been born during the marriage). See curtesy consummate under CURTESY. -consummation, n. consummate (kon-sd-mayt), vb. (16c) 1. To bring to com pletion; esp., to make (a marriage) complete by sexual intercourse. 2. To achieve; to fulfill. 3. To perfect; to carry to the highest degree. consummate dower. See DOWER. consummate lien. See LIEN. consummation ofmarriage. Family law. The first post marital act of sexual intercourse between a husband and wife . Under canon law, a refusal to consummate the marriage may be grounds for an annulment or for divorce. But this is not so at common law or under modern state law. [Cases: Marriage C=::'33.] consumption. (14c) The act of destroying a thing by using it; the use of a thing in a way that exhausts it. consumption tax. See TAX. contagion. Int'//aw. A discredited doctrine holding that revolution or abhorrent practices in a neighboring state justify its invasion and the overthrow of its government on the grounds of national security . The doctrine was employed by the Holy Alliance (1815-1848) in Europe to invade countries where revolutions were brewing. Also termed doctrine ojcontagion. containing by estimate. Archaic. More or less. This phrase usu. appears in deeds in which measurements are made by metes and bounds. It is redundant when the phrase "more or less" is used. containment. Int'llaw. A policy of restricting the ideo logical or territorial expansion of one's enemy . This was the basic policy of the United States during the Cold War. contango (kdn-tang-goh), n. Securities. 1. A market in which long-term futures or options contracts sell at a premium over short-term contracts. -Also termed 360 contemn normal market. 2. The premium so paid. The premium paid for securities with longer maturities reflects the cost of holding the commodity for future delivery. contemn (k;m-tem), vb. To treat (as laws or court orders) with contemptuous disregard. See CONTEMPT. contemnor (k;m-tem-<"lr or -n<"lr or -nor). (16c) A person who is guilty ofcontempt before a governmental body, such as a court or legislature. -Also spelled contem ner. contemplation of bankruptcy. The thought of declar ing bankruptcy because of the inability to continue current financial operations, often coupled with action designed to thwart the distribution ofassets in a bank ruptcy proceeding. -Also termed contemplation of insolvency. contemplation ofdeath. (18c) The thought ofdying, not necessarily from imminent danger, but as the compel ling reason to transfer property to another. See gift causa mortis under GIFT. [Cases: Gifts C=:>59; Internal Revenue C=:>4159(2).] contemplation of insolvency. See CONTEMPLATION OF BANKRUPTCY. contemporanea expositio (bn-tem-p<"l-ray-nee-<"l eks-p<"l zish-ee-oh). [Latin "contemporaneous exposition"] The doctrine that the best meaning ofa statute or document is the one given by those who enacted it or signed it, and that the meaning publicly given by contemporary or long professional usage is presumed to be the correct one, even ifthe language may have a popular or an ety mological meaning that is very different. contemporaneous and practical interpretation. See contemporaneous construction under CONSTRUCTION. contemporaneous construction. See CONSTRUCTION. contemporaneous-construction doctrine. (1956) The rule that the initial interpretation of an ambiguous statute by an administrative agency or lower court is entitled to great deference ifthe interpretation has been used over a long period. [Cases: Statutes C=:>218, 219.] contemporaneous-objection rule. (1965) The doctrine that a timely and proper objection to the admission of evidence must be made at trial for the issue of admis sibility to be considered on appeal. An objection is timely ifit is made as soon as practicable and is proper if made formally on the record. These requirements afford the trial court an opportunity to correct the alleged error, and they preserve the issue for appeal. [Cases: Appeal and Error C=:>230; Criminal Law C=:> 1036.1; Federal Courts C=:>62l.] contemporary community standards. (1957) The gauge by which a fact-finder decides whether material is obscene, judging by its patent offensiveness and its prurience in the locale at a given time. See OBSCENITY (1). [Cases: Obscenity C=:> 1.4.] "Both pruriency and patent offensiveness

). [Cases: Obscenity C=:> 1.4.] "Both pruriency and patent offensiveness are determined by 'contemporary community standards.' But what is the relevant community7 In Miller [v. California], the Court rejected the contention that only a national community standard, free of local biases, would provide adequate First Amendment protection and allowed lower courts to use local standards in defining what is obscene. Subse quent cases have made it clear that the state may choose to omit reference to any particular geographic commu nity, state or local, although it may do so. If a geographic reference is omitted, each jury is free to ascertain the contemporary community standard." Jerome A. Barron & C. Thomas Dienes, Constitutional Law in a Nutshell 396 (3d ed. 1995). contempt, n. (14c) 1. The act or state of despising; the condition ofbeing despised. 2. Conduct that defies the authority or dignity ofa court or legislature. Because such conduct interferes with the administration of justice, it is punishable, usu. by fine or imprisonment. Fed. R. Civ. P. 45(e); Fed. R. Crim. P. 42; 18 USCA 40l. See CONTUMACY. -Also termed contempt ofcourt; judicial contempt. [Cases: Contempt C=:> 1-26; States C=:>40.] -contemptuous, adj. "Contempt is a disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interrup tion of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body." Edward M. Dangel, Contempt 1, at 2 (1939). civil contempt. (1884) The failure to obey a court order that was issued for another party's benefit. A civil-contempt proceeding is coercive or remedial in nature. The usual sanction is to confine the contem nor until he or she complies with the court order. The act (or failure to act) complained of must be within the defendant's power to perform, and the contempt order must state how the contempt may be purged. Imprisonment for civil contempt is indefinite and for a term that lasts until the defendant complies with the decree. [Cases: Contempt C=:>4, 20.] common-law contempt. See criminal contempt. consequential contempt. 1. Contempt that, although not amounting to gross insolence or direct opposi tion, tends to create a universal disregard ofthe power and authority of courts and judges. 2. See indirect contempt. constructive contempt. See indirect contempt. contempt ofCongress. Deliberate interference with the duties and powers of Congress, such as a witness's refusal to answer a question from a congressional committee. Contempt of Congress is a criminal offense. 2 USCA 192. [Cases: United States C=:> 23(9).] contempt ofsovereignty. Int'llaw. The minor diplo matic offense of interference in domestic affairs by a foreign representative, esp. by making a public state ment about an issue currently being debated in the legislature. criminal contempt. (1841) An act that obstructs justice or attacks the integrity of the court. A criminal contempt proceeding is punitive in nature. The purpose of criminal-contempt proceedings is to punish repeated or aggravated failure to comply with a court order. All the protections of criminal law and procedure apply, and the commitment must 361 be for a definite period. -Also termed common-law contempt. [Cases: Contempt (:::::'3,40.] "Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both." Bloom v. Illinois, 391 U.S. 194,201,88 S.Ct. 1477, 1481 (1968). direct contempt. (1863) A contempt (such as an assault of a testifying witness) committed in the immediate vicinity of a court; esp., a contempt committed in a judge's presence . A direct contempt is usu. imme diately punishable when the transgression occurs. [Cases: Contempt (:::::'2.] indirect contempt. (1896) Contempt that is committed outside of court, as when a party disobeys a court order. Indirect contempt is punishable only after proper notice to the contemnor and a hearing. Also termed constructive contempt; consequential contempt. [Cases: Contempt (:::::'2.] contempt ofcourt. See CONTEMPT (2). contempt power. (1885) The power of a governmental body (such as Congress or a court) to punish someone who shows contempt for the process, orders, or pro ceedings of that body. contempt proceeding. See PROCEEDING. contemptuous damages. See nominal damages under DAMAGES. contenement (bn-ten-J-m;mt). Hist. 1. Freehold land held by a feudal tenant, esp. land used to support the tenant. Magna Carta (1215) exempted this property from seizure. "Con tenement, (contenementum) seemeth to be the free hould land, which Iyeth to a mans tenement or dwelling house, that is in his owne occupation. For magna carta. ca. 14. you have these words: A free man shall not be amerced for a small fault, but after the quantity of the fault: and for a great fault, after the maner thereof, saving to him his contenement or free hould. And a merchant likewise shal be amerced saving to him his merchandies: and any other villaine then owers, shal be amerced saving his wainage ... ." John Cowell, The Interpreter (1607). 2. A person's reputation or standing in the commu nity. Though contenement as used in this sense is also rooted in the ownership ofland, it may stem from the Law French contenance ("countenance") rather than the Law Latin contenementum ("with tenement"), as used in sense (1). "Contenement signifies his Countenance, Credit, or Reputa tion, which he hath, together with, and by reason of his Freehold; and in this sense does the Statute of 1 Edw. 3 and Old Nat. By. use it, where Countenance is used for Con tenement: The Armor of a Soldier is his Countenance; the Books of a Schollar, his Countenance; and the like." Thomas Blount, Nomo-Lexicon: A Law-Dictionary (1670). content, n. Maritime law. A written declaration of a departing vessel's destination, the kind and quantity of cargo it is carrying, and other particulars, submitted to a customs inspector for approval and permission for the vessel to leave port. Cf. MANIFEST. content-based discrimination. See DISCRIMINATION. contestant content-based restriction. (1973) Constitutional law. A restraint on the substance ofa particular type ofspeech. This type of restriction is presumptively invalid but can survive a constitutional challenge ifit is based on a compelling state interest and its measures are narrowly drawn to accomplish that end. Boos v. Barry, 485 U.S. 312,108 S.Ct. 1157 (1998). See SPEECH (1). [Cases: Con stitutional Law (:::::' 1516.] contention interrogatory. See INTERROGATORY. contentious jurisdiction. See JURISDICTION. contentious possession. See hostile possession under POSSESSION. content-neutral. See NEUTRAL. contents unknown. A statement placed on a bill oflading to show that the carrier does not know what is inside shipped containers . Carriers use this phrase in an attempt to limit their liability for damage to the goods shipped. Shipper's load and count is also used. [Cases: Carriers (:::::'50; Shipping C=::> 106(3).] content-valid test. A job-applicant examination that bears a close relationship to the skills required by the job. Content-validation studies are often performed in employment-discrimination cases that contest the validity of an examination. [Cases: Civil Rights (:::::' 1142, 1546.] "The simplest form oftest validation is where the test rep licates major portions of the job, as for example, where a test measuring typing or computer literacy is used to select a secretarial support person .... A content valid test must measure or replicate a 'representative sample' of the job's duties. It is not valid if it measures only a small portion of those duties. For example, fire fighters may need to write reports, but a grammar test is too narrow to be content valid." Mack A. Player, Federal Law ofEmployment Discrimi nation in a Nutshell 101 (3d ed. 1992). conterminous, adj. 1. Sharing a common boundary <the surveyor set a new line between the conterminous counties>. -Also termed coterminous. 2. Enclosed within a common boundary <all 48 conterminous states of this country>. 3. See COTERMINOUS. contest (bn-test), vb. (l7c) 1. To strive to win or hold; contend <he chose to contest for the prize>. 2. To litigate or call into question; challenge <they want to contest the will>. 3. To deny an adverse claim or assert a defense to it in a court proceeding <she contests that charge>. -contest (kon-test), n. contestability clause (bn-tes-tJ-bil-J-tee). Insurance. A policy provision setting forth when and under what conditions the insurer may contest a claim or void the policy based on a representation or omission made when the policy was issued . Contestability clauses usu. lapse after two years. -Also termed contestable clause. Cf. INCONTESTABILITY CLAUSE. [Cases: Insur ance (:::::'2950,3121.] contestant. (17c) 1. One who contests the validity of a will, trust, or other legal instrument. -Also termed objectant; caveator. 2. Trademarks. One who challenges the placement ofa trademark on the Principal Register . The term refers to a challenger in (1) an interference 362 contestatio litis proceeding, (2) an opposition proceeding before a mark is placed on the Principal Register, or (3) a cancellation proceeding after the mark is placed on the Principal Register. [Cases: Trademarks (;=.,12891294, 130L] 3. Patents. A party to an interference proceeding in the U.S. Patent and Trademark Office. -Also termed (in sense 3) interferant. [Cases: Patents (;:::> 106(1).] contestatio litis (kon-tes-tay-shee-oh h-tis). [Latin "con testation of suit"] See LITIS CONTESTATIO. contestation ofsuit (kon-tes-tay-sh;m). Eccles. law. The point in an action when the defendant answers the plaintiff's libel (Le., complaint); the plea and joinder of an issue'. -Also termed litis contestatio. contested divorce. See DIVORCE. contested hearing. See HEARING. context, n. (16c) 1. The surrounding text of a word or passage, used to determine the meaning of that word or passage <his remarks were taken out ofcontext>. 2. Setting or environment <in the context of foreign rela tions>. contextual, adj. context rule. Contracts. The principle that a court may look to extrinsic evidence to determine the intended meaning ofa contract, even though the language itself is clear and unambiguous . The court may consider (1) the subject matter and purpose ofthe contract, (2) the circumstances surrounding the making of the contract, (3) the subsequent conduct of the parties to the contract, (4) the reasonableness of the parties' respective interpretations, (5) statements made by the parties in preliminary negotiations, (6) usages of trade, and (7) the course ofdealing between the parties. This rule does not make extrinsic evidence admissible for other purposes, such as adding to, modifying, or con tradicting the contract's terms, unless a party can show that the actual language resulted from fraud, accident, or mistake. Restatement (Second) ofContracts 212, 214(c) (1981). [Cases: Contracts 143, 169, 170; Evidence (;::::c448.] contextual zoning. See ZONING. contiguity (kon-ti-gyoo-d-tee), n. The state or condition of being contiguous <contiguity existed between the two adjoining tracts ofland>. contiguous (kdn-tig-yoo-<ls), adj. (17c) 1. Touching at a point or along a boundary; ADJOI"'ING <Texas and Oklahoma are contiguous>. 2. Near in time or sequence; successive <contiguous thunder and light ning>. contiguous zone. Int'llaw. An area abutting and extend ing beyond the territorial sea, in which countries have limited powers to enforce customs as well as fiscal, sanitary, and immigration laws. [Cases: International Law (;::::c 7.] Continental Congress. The first national governmental assembly in the United States, formed in 1774 to protest British treatment of the colonies . The Second Con tinental Congress, commencing in 1775, adopted the Declaration ofIndependence and served as the national government until the Articles of Confederation were ratified in 1781. contingency (k;m-tin-jdn-see). (l6c) 1. An event that mayor may not occur; a possibility. 2. The condition ofbeing dependent

l6c) 1. An event that mayor may not occur; a possibility. 2. The condition ofbeing dependent on chance; uncertainty. 3. CONTIN GENT FEE. contingency beneficiary. See contingent beneficiary (I) under BENEFICIARY. contingency fee. See CO",TINGENT FEE. contingency reserve. See contingent fund under FUND (I). contingency with a double aspect. A contingent remain der existing along with a second remainder, the latter remainder taking effect only if the first fails . In the following example, this type ofremainder would arise if A never has children: "to A for life, and if A has children, then to the children and their heirs forever; and if A dies without children, then to Band B's heirs forever." See contingent remainder under REMAINDER. [Cases: Remainders (;=.) 1.] contingent (kdn-tin-jdnt), adj. 1. Possible; uncertain; unpredictable <the trust was contingent, and the con tingency never occurred>. 2. Dependent on something else; conditional <her acceptance of the position was contingent upon the firm's agreeing to guarantee her husband a position as well>. contingent annuity. See A~NUITY. contingent beneficiary. See BENEFICIARY. contingent claim. See CLAIM (4). contingent debt. See DEBT. contingent demand. See DEMAND (1). contingent estate. See ESTATE (1). contingent fee. (17c) A fee charged for a lawyer's services only if the lawsuit is successful or is favorably settled out ofcourt. Contingent fees are usu. calculated as a percentage of the client's net recovery (such as 25% of the recovery if the case is settled, and 33% if the case is won at trial). Also termed contingency fee; con tingency; conditional fee. [Cases: Attorney and Client (;::::c 146.] reversecontingentfee. A fee in which a defense lawyer's compensation depends in whole or in part on how much money the lawyer saves the client, given the client's potential liability so that the lower the set tlement or judgment, the higher the lawyer's fee. For example, if a client might be liable for up to $2 million, and agrees to pay the lawyer 40% of the dif ference between $1 million and the amount of the settlement or judgment, then a settlement of $800,000 would result in a fee of$80,000 (40% ofthe $200,000 under the threshold amount of $1 million). -Also termed negative contingent fee; defense contingent fee; reverse bonus. [Cases: Attorney and Client y 146.] contingent fund. See FUND (1). contingent guaranty. See GUARANTY. 363 continuing contingent interest. See INTEREST (2). contingent-interest mortgage. See MORTGAGE. contingent legacy. See LEGACY. contingent liability. See LIABILITY. contingent ownership. See OWNERSHIP. contingent remainder. See REMAINDER. contingent trust. See TRUST. contingent use. See USE (4). contingent will. See WILL. continual claim. Rist. A formal claim to a tract ofland made by an: out-of-possession owner who is deterred from taking possession by a menace of some type. -The claim -called continual because it had to be renewed annually -preserved the claimant's right to the land. The owner had to make the claim as near to the land as could be done safely. This procedure gave the disseised person the same benefits (such as the right to devise the land) as a legal entry. The continual claim was abolished early in the 19th century. "Continual claim is. where a man hath right to enter into certain lands whereof another is seised in fee, or fee tail. and dares not enter for fear of death or beating. but approaches as nigh as he dares. and makes claim thereto within the year and day before the death of him that hath the lands ...." Termes de fa Ley 114 (lst Am. ed. 1812). continual injury. See INJURY. continuance, n. (l4c) 1. The act ofkeeping up, maintain ing, or prolonging <continuance of the formal tradi tion>. 2. Duration; time of continuing <the senator's continuance in office>. 3. Procedure. The adjournment or postponement of a trial or other proceeding to a future date <motion for continuance>. Cf. RECESS (1). [Cases: Federal Civil Procedure Pretrial Pro cedure (,.'='711.] -continue, vb. continuando (k;m-tin-yoo-an-doh). [Law Latin "by con tinuing"] Rist. An allegation charging that the trespass . or other wrongful act complained of constitutes a con tinuing tort against the plaintiff's property. "In trespasses of a permanent nature, where the injury is continually renewed, (as by spoiling or consuming the herbage with the defendant's cattle) the declaration may allege the injury to have been committed by continuation from one given day to another, (which is called laying the action with a continuando) and the plaintiff shall not be compelled to bring separate actions for every day's separate offence." 3 William Blackstone, Commentaries on the Laws ofEngland 21 2 (1768). continuation. Patents. A patent application that is based on the same disclosure and claiming the same inven tion as a rejected parent application but containing some change in the scope of the claims. _ A continu ation application maintains the original filing date for prior-art and interference purposes, as long as it is filed while the parent application is still pending, has at least one inventor in common with the parent application, and refers to the parent application. Also termed continuation application; continuation-in-whole appli cation; continuing application; f71e-wrapper continuing application. Cf. CONTINUATION-IN-PART; continued-prosecution application under PATENT APPLICATION; REQUEST FOR CONTINUED EXAMINATION. [Cases: Patents no.] continuation agreement. (1942) Partnership. An agree ment among the partners that, in the event ofdissolu tion, the business ofthe partnership can be continued without the necessity of liquidation. Cf. BUY-SELL AGREEMENT (1). [Cases: Partnership (;:=>277.] "Normally, a continuation agreement would have some type of provision for purchaSing the interest of a deceased or expelled partner. However, such a provision is not neces sary. Courts have enforced agreements that give the estate of the deceased partner nothing." Harold Gill Reuschlein &William A. Gregory, The Law ofAgency and Partnership 269. at 461 (2d ed. 1990). continuation application. 1. See CONTINUATION. 2. See CONTINUATION-IN-PART. continuation-application laches doctrine. Patents. An equitable defense to patent infringement, based on an assertion that the patentee deliberately delayed the issuance of the patent-in-suit by filing multiple con tinuing applications that added new patent claims to cover products marketed or processes used after the original application was filed. -Also termed prosecu tionlaches doctrine. See SUBMARINE PATENT. [Cases: Patents (::;:::::'289(2).] continuation-in-part. Patents. A patent application filed by the same applicant during the pendency ofan earlier application, repeating a substantial part of the earlier application but adding to or subtracting from the claims. 35 USCA 120. This type of application contains new technical descriptions from the inventor or reflects improvements made since the parent appli cation was filed. A claim in a continuation-in-part application is entitled to the benefit of the parent appli cation's filing date if the claimed subject matter is the same, but the new matter takes the filing date of the continuation-in-part application. Continuation-in part applications are usu. filed to describe and claim later-discovered improvements to an invention, or to distinguish the invention from some prior-art refer ence. -Abbr. CIP. -Also termed continuation-in part application; continuation application; continuing application; file-wrapper continuation application. Cf. CONTINUATION. [Cases: Patents (;:=> llO.] continuation-in-part application, See CONTINUATION IN-PART. continuation-in-whole application. See CONTINUATION (2). continued bond. See annuity bond under BOND (3). continued-custody hearing. See shelter hearing under HEARING. continued meeting. See MEETING. continued-prosecution application. See PATENT APPLI CATION. continuing, adj. (14c) 1. Uninterrupted; persisting <a continuing offense>. 2. Not requiring renewal; 364 continuing annuity enduring <continuing stockholders> <continuing jurisdiction>. continuing annuity. See survivorship annuity under ANNUITY. continuing application. See PATENT APPLICATION. continuing breach. See BREACH OF CONTRACT. continuing consideration. See CONSIDERATION (1). continuing contract. See CONTRACT. continuing covenant. See COVENANT (1). continuing damages. See DAMAGES. continuing guaranty. See GUARANTY. continuing harm. See continuing injury under INJURY. continuing injury. See INJURY. continuingjudidal education. (1964) Continuing legal education for judges, usu. organized and sponsored by a governmentally subsidized body and often involv ing topics such as judicial writing, efficient decision making, caseload management, and the like. Abbr. CJE. continuing jurisdiction. See JURISDICTION. continuing-jurisdiction doctrine. (1966) 1. The rule that a court retains power to enter and enforce a judgment over a party even though that party is no longer subject to a new action. lCases: Courts C~)30.12. Family law. The rule that once a court has acquired jurisdiction over a child-custody or support case, that court con tinues to have jurisdiction to modify orders, even ifthe child or a parent moves to another state. Child Custody C=>745; Child Support continuing legal education. (1948) 1. The process or system through which lawyers extend their learning beyond their law-school studies, usu. by attending seminars designed to sharpen lawyering skills or to provide updates on legal developments within partic ular practice areas . In many jurisdictions, lawyers have annual or biennial requirements to devote a given number of hours (usu. 12-15) to continuing legal education. [Cases: Attorney and Client 2. The enhanced skills or knowledge derived from process. 3. The business field in which educational pro viders supply the demand for legal seminars, books, audiotapes, and videotapes designed to further the edu cation oflawyers. -Abbr. CLE. continuing nuisance. See NUISANCE. continuing objection. See OBJECTION. continuing offense. See OFFENSE (1). continuing part-time judge. See JUDGE. continuing threat of harm. A condition or situation that presents a high risk ofinjury at intervals or over an extended period, whether or not an injury has actually occurred . The condition or situation can be a behavior that is subject to repetition, as with unfair competition practices or stalking, or an enduring state, such as environmental contamination. Also termed threat ofcontinuing harm; continuing threat ofinjury; threat ofcontinuing injury. Cf. continuing injury under INJURY. continuing trespass. See TRESPASS. continuing-violation doctrine. Employment law. The judge-made rule that if an employer's discriminatory acts are of an ongoing nature, the statute oflimitations will be extended to allow the plaintiff to recover even when a claim based on those acts would otherwise be time-barred. [Cases: Limitation ofActions ~58(1).] continuing warranty. See promissory warranty under WARRANTY (3). continuing wrong. See WRONG. continuity (kon-ti-n[y]oo-<l-tee). l. Int'llaw. The princi ple that upheavals and revolutions within a country as well as changes in governmental forms, the extent of a country's territory, and measures taken during a military occupation do not affect the existence of the country and therefore cannot lead to its extinction. 2. Patents. The rule that a continuation or divisional patent application carries the effective filing date of its parent application if (1) the parent application fully discloses the same invention, (2) there is at least one common inventor, and (3) the parent application was still pending when the latter application was ftied . A continuation-in-part application carries the effective filing date for everything disclosed in the parent appli cation, but not for new material. 35 USCA 120. Also termed doctrine ofcontinuity. Cf. HIATUS. [Cases: Patents ~110.] continuity of business enterprise. (1980) Tax. A doctrine covering acquisitive reorganizations whereby the acquiring corporation must continue the target cor poration's historical business or must use a Significant portion ofthe target's business assets in a new business to qualify the acquisition as a tax-deferred transaction. [Cases: Corporations C:-445.1.] continuity-of-enterprise doctrine. See SUBSTANTIAL CONTINUITY DOCTRINE. continuity-of-entity doctrine. See MERE-CONTINUA TION DOCTRINE. continuity of existence. See CONTINUlTY-OF-LlFE DOCTRINE. continuity ofinterest. (1974) 1. Tax. A doctrine covering acquisitive reorganizations whereby a target corpor

ity ofinterest. (1974) 1. Tax. A doctrine covering acquisitive reorganizations whereby a target corpora tion's shareholders must retain a share in the acquiring corporation to qualify the acquisition as a tax-deferred transaction. 2. A judicial requirement for divisive reor ganizations whereby a target corporation's shareholders must retain an interest in both the distributing and the controlled corporations to qualify the exchange as a tax-deferred transaction. [Cases: Internal Revenue (;:)3677.] continuity-of-life doctrine. The principle that the withdrawal, incapacity, bankruptcy, or death of the owner of an entity (esp. a corporation) does not end the entity's existence. -Also termed continuity ofexis tence. [Cases: CorporationsC=>36.] 365 continuous-adverse-use principle. The rule that the uninterrupted use of land -along with the other elements of adverse possession - will result in a suc cessful claim for adverse possession. -Also termed uninterrupted-adverse-use principle. See ADVERSE POS SESSION. [Cases: Adverse Possession (>44.] continuous crime. See CRIME. continuous easement. See EASEMENT. continuous injury. See continual injury under INJURY. continuous-operations clause. Oil & gas. A provision in an oil-and-gas lease giving the lessee the right to continue any drilling well that was begun before the lease expired and to begin drilling more wells. See OPERATIONS CLAUSE. [Cases: Mines and Minerals (> 78.1(9).] continuous policy. See INSURANCE POLICY. continuous-representation doctrine. The principle that the limitations period for bringing a legal-malpractice action is tolled as long as the lawyer against whom the action is brought continues the representation that is related to the negligent act or omission. [Cases: Limita tion ofActions (>55(3).] continuous servitude. See continuous easement under EASEMENT. continuous-treatment doctrine. (1962) The principle that the limitations period for bringing a medical malpractice action is tolled while the patient contin ues treatment that is related to the negligent act or omission. [Cases: Limitation ofActions (>55(3).] continuous trigger. See TRIPLE TRIGGER. contio (kon-shee-oh), n. [Latin] Roman law. 1. A public meeting to which participants have been summoned by a magistrate. 2. A speech delivered at a public meeting. -Also spelled cancio. PI. contiones (kon shee-oh-neez). contor. See COUNTER. contort (kon-tort), n. 1. (usu. pI.) The overlapping domain ofcontract law and tort law. "I have occasionally suggested to my students that a desir able reform in legal education would be to merge the first year courses in Contracts and Torts into a single course which we could call Contorts." Grant Gilmore, The Death of Contract 90 (1974). 2. A specific wrong that falls within that domain. 3. Informal. A constitutional tort. See constitutional tort under TORT. contra (kon-tr;:J), prep. (15c) Against or contrary to . As a citation signal, contra denotes that the cited author ity supports a contrary view. In old law reports, contra often identifies the defendant's attorney (pro querente refers to the plaintiff's). "Observe in the note citing cases in support of a proposi tion mentioned in the text whether any of the cases follow the word contra, which means that a contrary rule has been laid down in them." Frank Hall Childs, Where and How to Find the Law 78-79 (1922). contra account. See ACCOUNT. contract contraband (kon-tr;:J-band), n. (16c) 1. Illegal or pro hibited trade; smuggling. 2. Goods that are unlawful to import, export, produce, or possess. -contraband, adj. absolute contraband. Goods used primarily for war, such as arms and ammunition, as well as clothing and equipment of a military character. conditional contraband. Goods susceptible of being used for warlike and peaceful purposes, such as coal and food. -Also termed ancipitis usus (an-sip-i-t;:Js yoo-s;:Js). contraband per se. Property whose possession is unlawful regardless of how it is used. Cf. derivative contraband. derivative contraband. Property whose possession becomes unlawful when it is used in committing an illegal act. Cf. contraband per se. contra bonos mores (kon-tr;:J boh-nohs mor-eez). [Latin "against good morals"] Offensive to the conscience and to a sense ofjustice. Contracts contra bonos mores are voidable. -Also termed contra bonos mores et decorum; adversus bonos mores. "Whatever is contra bonos mores et decorum, the principles of our law prohibit, and the King's court, as the general censor and guardian of the public manners, is bound to restrain and punish." Jones v. Randall, 98 E.R. 706, 707 (1774) (per Mansfield, en. contracausator (kon-tr;:J-kaw-zay-t;:Jr). Hist. A criminal; a person prosecuted for a crime. contraceptivism. Hist. The criminal offense of distribut ing or prescribing contraceptives. contract, n. (14c) 1. An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law <a binding contract>. [Cases: Contracts (>1.] 2. The writing that sets forth such an agreement <a contract is valid if valid under the law ofthe residence ofthe party wishing to enforce the contract>. "The term contract has been used indifferently to refer to three different things: (1) the series of operative acts by the parties resulting in new legal relations; (2) the physical document executed by the parties as the lasting evidence of their having performed the necessary operative acts and also as an operative fact in itself; (3) the legal relations resulting from the operative acts, consisting of a right or rights in personam and their corresponding duties, accom panied by certain powers, privileges, and immunities. The sum ofthese legal relations is often called 'obligation.' The present editor prefers to define contract in sense (3) ...." William R. Anson, PrinCiples of the Law of Contract 13 n.2 (Arthur L. Corbin ed., 3d Am. ed. 1919). "A contract is a promise, or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. This defi nition may not be entirely satisfactory since it requires a subsequent definition of the circumstances under which the law does in fact attach legal obligation to promises. But if a definition were attempted which should cover these operative facts, it would require compressing the entire law relating to the formation of contracts into a single sentence." Samuel Williston, A Treatise on the Law ofContracts 1,at 1-2 (WalterH.E.Jaegered., 3ded. 1957) (footnote omitted). 366 contract 'The term 'contract' is also used by lay persons and lawyers alike to refer to a document in which the terms of a contract are written. Use of the word in this sense is by no means improper so long as it is clearly understood that rules of law utilizing the concept 'contract' rarely refer to the writing itself. Usually, the reference is to the agreement; the writing being merely a memorial of the agreement." John D. Calamari &Joseph M. Perillo, The Law ofContracts 1.1, at 3 (4th ed. 1998). 3. A promise or set of promises by a party to a trans action, enforceable or otherwise recognizable at law; the writing expressing that promise or set ofpromises <when the lessor learned that the rooms were to be used for the delivery of blasphemous lectures, he declined to perform his contract>. See Restatement (Second) of Contracts 2 (1979). lCases: Contracts ~1.] "The promissory element present in every contract is stressed in a widely quoted definition: 'A contract is a promise, or set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty: [1 Samuel Wil liston, Contracts 1.1 (4th ed. 1990).] This, like similar definitions, is somewhat misleading. While it is true that a promise, express or implied, is a necessary element in every contract, frequently the promise is coupled with other elements such as physical acts, recitals of fact, and the immediate transfer of property interests. In ordinary usage the contract is not the promise alone, but the entire complex of these elements." John D. Calamari &Joseph M. Perillo, The Law ofContracts 1.1, at 1-2 (4th ed. 1998). 4. Broadly, any legal duty or set of duties not imposed by the law of tort; esp., a duty created by a decree or declaration of a court <an obligation of record, as a judgment, recognizance, or the like, is included within the term "contract">. [Cases: Contracts 1.] 5. The body of law dealing with agreements and exchange <the general theory of contract>. 6. The terms of an agreement, or any particular term <there was no express contract about when the money was payable>. 7. Loosely, a sale or conveyance. "Sometimes the word 'contract' is used to deSignate a transaction involving the exchange of goods or land for money. When money is exchanged for goods, this consti tutes a sale. When money is exchanged for land, this con stitutes a conveyance. Sales and conveyances may be the result of a previous contract but they are not the contracts in themselves. There is no undertaking or commitment to do or refrain from doing anything in the future. This indispensable element of contract is missing." John Edward Murray Jr., Mumwon Contracts 2, at 5 (2d ed. 1974). 8. Loosely, an enforceable agreement between two or more parties to do or not to do a thing or set of things; a compact <when they finally agreed, they had a contract>. [Cases: Contracts C~)1.] -contract, vb. contractual, adj. absolute simulated contract. Civil law. A simulated contract that the parties intend to be wholly ineffec tive. La. Civ. Code art. 2026. See simulated contract. [Cases: Fraudulent Conveyances 24(1).] accessory contract. A contract entered into primarily for the purpose of carrying OLlt a principal contract. The principal types are suretyship, indemnity, pledge, warranty, and ratification. Cf. principal contract. adhesion contract. (1949) A standard-form contract prepared by one party, to be Signed by another party in a weaker position, LlSU. a consumer, who adheres to the contract with little choice about the terms. Also termed contract ofadhesion; adhesive contract; adhesory contract; adhesionary contract; take-it-or leave-it contract; leonine contract. [Cases: Contracts "Some sets of trade and professional forms are extremely one-sided, grossly favoring one interest group against others, and are commonly referred to as contracts of adheSion. From weakness in bargaining pOSition, igno' rance, or indifference, unfavored parties are willing to enter transactions controlled by these lopsided legal docu ments." Quintin Johnstone & Dan Hopson Jr., Lawyers and Their Work 329-30 (1967). "Dangers are Inherent in standardization ... for it affords a means by which one party may impose terms on another unwitting or even unwilling party. Several circumstances facilitate this impOSition. First, the party that proffers the form has had the advantage of time and expert advice in preparing it, almost inevitably producing a form slanted in its favor. Second, the other party is usually completely or at least relatively unfamiliar with the form and has scant opportunity to read it an opportunity often diminished by the use of fine print and convoluted clauses. Third, bar gaining over terms of the form may not be between equals or, as is more often the case, there may be no possibility of bargaining at all. The form may be used by an enterprise with such disproportionately strong economic power that it simply dictates the terms. Or the form may be a takeit orleave-it proposition, often called a contract of adhesion, under which the only alternative to complete adherence is outright rejection." E. Allan Farnsworth, Contracts 4.26, at 296-97 (3d ed. 1999). aleatory contract (ay-Iee-d-tor-ee). [fro Latin aleator "gambler," fro alea "the throwing of dice"] (1891) A contract in which at least one party's performance depends on some uncertain event that is beyond the control of the parties involved . Most insurance contracts and life annuities are of this type. -Also termed hazardous contract; wagering contract. Cf. certain contract. [Cases: Contracts (''=,218; Insur ance (;:-:;; 1713.] "A contract is aleatory when, because of the nature or according to the parties' intent, the performance of either party's obligation, or the extent of the performance, depends on an uncertain event." La. Civ. Code art. 1912. alternative contract. (1871) A contract in which the performing party may elect to perform one of two or more specified acts to satisfy the obligation; a contract that provides more than one way for a party to complete performance, usu. permitting that party to choose the manner of performance. -Also termed alternative-methods-of-performance contract. [Cases: Contracts assessment contract. A contract in which the payment of a benefit is dependent on the collection of an assess ment levied on persons holding similar

assessment contract. A contract in which the payment of a benefit is dependent on the collection of an assess ment levied on persons holding similar contracts. See assessment insurance under INSURANCE. [Cases: Insurance ~2080.] best-efforts contract. A contract in which a party undertakes to use best efforts to fulfill the promises made rather than to achieve a specific result; a :67 contract contract in which the adequacy of a party's perfor mance is measured by the party's ability to fulfill the specified obligations . Although the obligor must use best efforts, the risk of failure lies with the obligee. To be enforceable, a best-efforts term must generally set some kind ofgoal or guideline against which the efforts may be measured. See BEST EFFORTS. [Cases: Contracts (;:::::c 189.] bilateral contract. (1866) A contract in which each party promises a performance, so that each party is an obligor on that party's own promise and an obligee on the other's promise; a contract in which the parties obligate t)1emselves reciprocally, so that the obliga tion of one party is correlative to the obligation of the other. Also termed mutual contract; recipro cal contract; (in civil law) synallagmatic contract. See COUNTERPROMISE. [Cases: Contracts 1,10(1).] "In a bilateral contract a promise, or set of promises on one side, is exchanged for a promise or a set of promises on the other side. In a unilateral contract, on the other hand, a promise on one side is exchanged for an act (or a for bearance) on the other side. Typical examples of bilateral contracts are contracts of sale, the buyer promising to pay the price and the seller promising to deliver the goods. A typical example of a unilateral contract is a promise of a reward for the finding of lost property followed by the actual finding of the property." P.s. Atiyah, An Introduction to the Law of Contract 32 (3d ed. 1981). blanket contract. A contract covering a group of products, goods, or services for a fixed period. bona fide contract (boh-n<} f Id or fI-dee). A contract in which equity may intervene to correct inequali ties and to adjust matters according to the parties' intentions. build-to-print contract. A contract requiring the con tractor to build a product according to exact technical specifications proVided by the customer . The design specifications are explicit and are often coupled with performance specifications, so the contractor has little discretion in how to perform. Much governmental contracting is build-to-print. -Also termed design specification contract. Cf. performance contract (1). certain contract. (l7c) A contract that will be performed in a stipulated manner. Cf. aleatory contract. collateral contract. (l809)A side agreement that relates to a contract, which, if unintegrated, can be supplemented by evidence of the side agreement; an agreement made before or at the same time as, but separately from, another contract. See COLLATERAL CONTRACT DOCTRINE. [Cases: Evidence C:)440.] "The term 'collateral contract' has no very precise meaning in the law. It is generally used as a label for a contract which is collateral, or by the side of, another contract. A great many examples of implied or constructive contracts created by the Courts are collateral in a broad sense .... [Allthough the normal presumption is that the parties intend a written contract to be exclusive evidence of their intentions, it is always open to a party to show that in fact the writing did not exclusively represent their intentions, because of a 'collateral' contract made during the negotia tions but not incorporated in the written instrument." P.S. Atiyah. An Introduction to the Law of Contract 80-81, 161 (3d ed. 1981). commutative contract (ka-myoo-ta-tiv or kom-y<}-tay tiv). 1. Civil law. A contract in which, at the time it is formed, the parties' obligations and advantages are certain and determinate . This definition applied in Louisiana law before the civil code was revised in 1984. 2. Louisiana law. A contract in which one party's performance is correlative to the performance ofthe other, so that nonperformance by either affords a defense to the other. La. eiv. Code art. 1911. Cf. independent contract; synallagmatic contract. conditional contract. An agreement that is enforceable only ifanother agreement is performed or ifanother particular prerequisite or condition is satisfied. Also termed hypothetical contract. [Cases: Contracts (;:::::c218.] conditional sales contract. See retail installment con tract. consensual contract. Hist. A contract arising from the mere consensus of the parties, without any formal or symbolic acts performed to fix the obligation . Although the consensual contract was known to the common law, it originated in Roman law, where it embraced four types ofcontracts in which informal consent alone was sufficient: (1) an agency agreement (mandatum), (2) a partnership agreement (societas), (3) a sale (emptio venditio), or (4) a letting or hiring (locatio conductio). Cf. real contract. "[Tlhe peculiarity of these Consensual Contracts is that no formalities are required to create them out of the Pact. Much that is indefensible, and much more that is obscure, has been written about the Consensual Contracts, and it has even been asserted that in them the consent of the Parties is more emphatically given than in any other species of agreement. But the Consensual merely indicates that the Obligation is here annexed at once to the ConsenslJs. The Consensus, or mutual assent of the parties, is the final and crowning ingredient in the Convention, and it is the characteristic of agreements falling under one four heads of Sale, Partnership, Agency, and Hiring. that, as soon as the assent of the parties has supplied this ingredi ent, there is at once a Contract. The Consensus draws with it the Obligation, performing, in transactions of the sort specified, the exact functions which are discharged, in the other contracts, by the Res or Thing ... ."' Henry S. Maine, Ancient Law 322-23 (10th ed. 1884). construction contract. A contract setting forth the specifications for a building project's construction. This type of contract is usu. secured by performance and payment bonds to protect both the owner and the subcontractors. [Cases: Contracts constructive contract. See implied-in-law contract. continuing contract. A contract calling for periodic performances. [Cases: Contracts (;:::::c216.] contract for deed. (l825) A conditional sales contract for the sale of real property. -Also termed install ment land contract; land sales contract; land contract. [Cases: Vendor and Purchaser (;:::::c'54.] contract for sale. (1808) 1. A contract for the present transfer of property for a price. Also termed contract ofsale. [Cases: Sales C--'--:J 1(1).] 2. A contract to sell goods at a future time. Also termed (in sense 2) contract to sell. contract implied in fact. See implied-In-fact contract. contract implied in law. See implied-in-law contract. contract ofadhesion. See adhesion contract. contract of affreightment. See CONTRACT OF AFFREIGHTMENT. contract ofbeneficence. See gratuitous contract. contract ofbenevolence. See gratuitous contract. contract ofcarriage. See CONTRACT OF AFFREIGHT MENT .. contract ofindemnity. See indemnity contract. contract ofinsurance. See INSURANCE POLICY. contract ofmarriage. See marriage contract. contract of record. A contract that is declared by a court and entered into the court's record. _ Contracts of record include judgments, recognizances, and (in England) statutes staple. "Contracts of record are not really contracts at all, but are transactions which, being entered on the records of certain courts called 'courts of record,' are conclusive proof of the facts thereby appearing, and could formerly be enforced by action of law as if they had been put in the shape of a contract." 1 Stewart Rapalje & Robert L Lawrence, A Dic tionarv ofAmerican and English Law 282 (1883). "A contract of record is in point of fact no contract at all, and has nothing whatever to do with the law of contracts. These socalled contracts are the obligations incurred by a judgment or recognizance of a Court of Record. They came to be called contracts only because they were enforceable by the same type of action as was used for genuinely con tractual cases in the old common law system of proce dure." P.S. Atiyah, An Introduction to the Law of Contract 31 (3d ed. 1981). contract ofsale. See contract for sale (1). contract to pledge. 1. An agreement purporting to create a present pledge without a bailment. [Cases: Pledges G-'-:: 11.] 2. An agreement to make a future bailment for the purpose of security. See PLEDGE (3). contract to satisfaction. See satisfaction contract. contract to sell. See contract for sale (2). contract uberrimae fidei (yoo-ber-d-mee fI-dee-I). A contract in which the parties owe each other duties with the utmost good faith. [Cases: Insurance 1867, 2996.1 "In a certain restricted group of contracts good faith is peculiarly necessary owing to the relationship between the parties, and in these cases -known as contracts uber rimae fidei .-there is a full duty to disclose all material facts. The typical instance of such contracts is the contract of insurance. Here the duty to disclose all material facts to the insurer arises from the fact that many of the relevant circumstances are within the exclusive knowledge of one party, and it would be impossible for the insurer to obtain the facts necessary for him to make a proper calculation of the risk he is asked to assume without this knowledge." P.S. Atiyah, An Introduction to the Law ofContract 221-22 (3d ed. 1981). contract under seal. A formal contract that requires no consideration and has the seal ofthe signer attached. - A contract under seal must be in writing or printed on paper or parchment and is conclusive between the parties when signed, sealed, and delivered. Delivery is made either by actually handing it to the other party (or party's representative) or by stating an intention that the deed be operative even though it is retained in the possession of the party executing it. Modern statutes have mostly eliminated the special effects of a sealed contract. -Also termed sealed contract; special contract; deed; covenant; specialty; specialty contract; common-law specialty. See SEAL. Cf. sealed instrument under INSTRUMENT (3). [Cases: Contracts G-~48.1 "The only formal contract of English law is the contract under seal, sometimes also called a deed and sometimes a specialty. It is the only formal contract, because it derives its validity neither from the fact of agreement, nor from the consideration which may exist for the promise of either party, but from the form in which it is expressed." William R. Anson, Principles of the Law of Contract 82 (Arthur L. Corbin ed., 3d Am. ed. 1919). "Contracts under seal also bear little resemblance to ordinary contracts, although here at least the liability is based on a promise. A contract under seal, that is to say a deed, ... is a written promise or set of promises which derives its validity from the form, and the form alone, of the executing instrument. In point of fact the 'form' of the deed is nowadays surprisingly elastic. The only necessities are that the deed should be intended as such, and should be signed, sealed, and delivered. The sealing, however, has now become largely a fiction, an adheSive wafer simply being attached to the document in place of a genuine seal. Similarly, 'delivery' is not literally necessary, provided that there is a clear intention that the deed should be opera tive." P.S. Atiyah, An Introduction to the Law of Contract 31 (3d ed. 1981). cost-plus contract. (1920) A contract in which payment is based on a fixed fee or a percentage added to the actual cost incurred. [Cases: Contracts de facto contract ofsale. A contract that purports to pass property but is defective in some element. dependent contract. A contract conditioned or depen dent on another contract. deposit contract. An agreement between a financial institution and its customer governing the treat ment ofdeposited funds and the payment of checks and other demands against the customer's account. [Cases: Banks and Banking C=>133, design-specification contract. See build-to-print contract. destination contract. (1958) A contract in which a seller bears the risk afloss until the goods arrive at the destination. UCC 2-509. Cf. shipment contract. [Cases: Sales (:::::::201(4).] discharged contract. See void contract (2). divisible contract. See severable contract. dual contract. A contract between parties who have made two contracts far the same transaction, some times so that one may be used to defraud a person or 369 contract entity (such as a lender) as to the terms ofthe parties' actual agreement. employment contract. (1927) A contract between an employer and employee in which the terms and con ditions of employment are stated. [Cases: Labor and Employment C:::)31.j engineering, procurement, and construction contract. A fixed-price, schedule-intensive construction contract typical in the construction of single purpose projects, such as energy plants in which

A fixed-price, schedule-intensive construction contract typical in the construction of single purpose projects, such as energy plants in which the contractor agrees to a wide variety ofresponsibili ties, including the duties to provide for the design, engineering, procurement, and construction ofthe facility; to prepare start-up procedures; to conduct performance tests; to create operating manuals; and to train people to operate the facility. Abbr. EPC contract. Also termed turnkey contract. See SIN GLE-PURPOSE PROJECT. entire-output contract. See output contract. escrow contract. The contract among buyer, seller, and escrow holder, setting forth the rights and respon sibilities of each. See ESCROW. [Cases: Deposits and Escrows 15.] evergreen contract. A contract that renews itself from one term to the next in the absence of contrary notice by one of the parties. exclusive contract. See EXCLUSIVE-DEALING ARRANGE MENT. executed contract. (18c) I. A contract that has been fully performed by both parties. 2. A Signed contract. [Cases: Contracts (:::::>6; Sales 197; Vendor and Purchaser executory contract (eg-zek-p-tor-ee). (18c) 1. A contract that remains wholly unperformed or for which there remains something still to be done on both sides, often as a component of a larger trans action and sometimes memorialized by an informal letter agreement, by a memorandum, or by oral agree ment. [Cases: Contracts Sales (:::::> 197; Vendor and Purchaser (:::::>53.] "If a contract is wholly executory, and the legal duties of the parties are as yet unfulfilled, it can be discharged by mutual consent, the acquittance of each from the other's claims being the consideration for the promise of each to waive his own." William R. Anson, Principles of the Law of Contract 138 (Arthur L Corbin ed., 3d Am. ed. 1919). 2. Bankruptcy. A contract under which debtor and nondebtor each have unperformed obligations and the debtor, if it ceased further performance, would have no right to the other party's continued perfor mance. [Cases: Bankruptcy (:::::>3106.] express contract. (I7c) A contract whose terms the parties have explicitly set out. Also termed special contract. Cf. implied contract. Contracts (:::::> financial contract. Securities. An arrangement that (1) takes the form of an individually negotiated contract, agreement, or option to buy, sell, lend, swap, or repurchase, or other similar individually negoti ated transaction commonly entered into by partici pants in the financial markets; (2) involves securities, commodities, currencies, interest or other rates, other measures of value, or any other financial or economic interest similar in purpose or function; and (3) is entered into in response to a request from a coun terparty for a quotation, or is otherwise entered into and structured to accommodate the objectives ofthe counterparty to such an arrangement .. fixed-price contract. A contract in which the buyer agrees to pay the seller a definite and predetermined price regardless of increases in the seller's cost or the buyer's ability to acqUire the same in the market at a lower price. [Cases: Sales formal contract. A contract made through the obser vance of certain prescribed formalities . Among the formal contracts are the contract under seal, the recognizance, the negotiable instrument, and the letter of credit. Cf. informal contract; formal agree ment under AGREEMENT. [Cases: Contracts (:::::>30.] forward contract. An agreement to buy or sell a par ticular nonstandardized asset (usu. currencies) at a fixed price on a future date. Unlike a futures contract, a forward contract is not traded on a formal exchange. Also termed forward agreement. Cf. FUTURES CONTRACT. [Cases: Commodity Futures Trading Regulation (:::::> 10.] futures contract. See FUTURES CONTRACT. gambling contract. An agreement to engage in a gamble; a contract in which two parties wager something, esp. money, for a chance to win a prize . Where gambling is legal, contracts related to legal gambling activities are enforceable. -Also termed gaming contract. See wagering contract. [Cases: Gaming (;=:'10,25.] "Generally, under or apart from statutes so providing, or prohibiting such contracts or transactions, gambling contracts and transactions are illegal and void and cannot be enforced: and such contracts are void ab initio.... A gambling contract is invalid, no matter what outward form it may assume, and no ingenuity can make it legal." 38 C,J.S. Gaming 26, at 138-39 (1996). government contract. A contract to which a govern ment or government agency is a party, esp. for the purchase of goods and services. See procurement contract. gratuitous contract (gr<l-t[y]oo-i-t<ls). 1. A contract made for the benefit of a promisee who does not give consideration to the promisor. Also termed contract of beneficence; contract ofbenevolence. Cf. onerous contract. 2. Civil law. A contract in which one party promises to give a benefit to the other party without expecting or gaining any benefit in return. Also termed voluntary contract. grubstake contract. A contract between two parties in which one party provides the grubstake -money and supplies -and the other party prospects for and locates minerals on public land . Each party acquires an interest in the minerals as agreed to in the contract. Grubstake contracts are used chieflv in the western United States. In some states, such as Alaska, a request for grubstake money is considered the offer of a security and must be registered. Also termed grubstaking contract. [Cases: Mines and Minerals C-= 1Ol.] guaranteed-sale contract. A contract between a real estate agency and a property owner in which the agency agrees to buy the property at a guaranteed price after a specified length of time if it has not been sold under the listing agreement. The guaranteed price is usu. a substantial discount from the listed price. -;-Also termed guaranteed-purchase contract. guaranty contract. See GCARANTY (1). hazardous contract. See aleatory contract. hypothetical contract. See conditional contract. illegal contract. (18c) A promise that is prohibited because the performance, formation, or object ofthe agreement is against the law . Technically speaking, an illegal contract is not a contract at all because it cannot be enforced, so the phrase is a misnomer. Cf. unenforceable contract; void contract. [Cases: Con tracts C=J 103.] "An illegal contract is exceptionally difficult to define. It does not merely mean a contract contrary to the criminal law, although such a contract would indubitably be illegal. But a contract can well be illegal without contravening the criminal law, because there are certain activities which the law does not actually prohibit, but at the same time regards as contrary to the public interest and definitely to be dis couraged, for instance, prostitution. While a void contract is not necessarily illegal, an illegal contract is often void. However, the consequences of an illegal contract differ somewhat from those usually produced by a simply void contract, so illegal contracts are usually accorded separate treatment." P.S. Atiyah, An Intwduction to the Law of Contract 38 (3d ed. 1981). illusory contract. (I8c) An agreement in which one party gives as consideration a promise that is so insubstantial as to impose no obligation . The insub stantial promise renders the agreement unenforce able. [Cases: Contracts ~10.1 immoral contract. An agreement that so flagrantly violates societal norms as to be unenforceable. [Cases: Contracts C='112.] implied contract. (17c) 1. An implied-in-Iaw contract. [Cases: Implied and Constructive Contracts 1.] 2. An implied-in-fact contract. Cf. express contract. [Cases: Contracts~27.1 implied-in-fact contract. A contract that the parties presumably intended as their tacit understanding, as inferred from their conduct and other circum stances. -Also termed contract implied in fact. [Cases: Contracts implied-in-law contract. An obligation created by law for the sake ofjustice; specif., an obligation imposed by law because of some special relationship between the parties or because one of them would otherwise be unjustly enriched . An implied-in-Iaw contract is not actually a contract, but instead is a remedy that allows the plaintiff to recover a benefit conferred on the defendant. -Also termed contract implied in law; quasi-contract; constructive contract. See UNJUST ENRICHMENT. [Cases: Implied and Constructive Con tracts~l.] "[Aldventurous courts have turned to the idea of a 'contract implied in law,' a 'quaSi-contract' not really a contract, a legal fiction necessary to promote the ends of justice and, in particular, to prevent 'unjust enrichment,''' Grant Gilmore, The Death ofContract 73-74 (1974). "Since. , . claims for the redress of unjust enrichment did not fit comfortably into either the category of contract or that of tort, they came to be described as claims in quasicontract. Some of them were originally characterized as being in quantum meruit (as much as he deserved), a form of action used for claims to payment for services. This procedural term has persisted and is sometimes used inexactly as a synonym for the more general term quasi contract, which refers to any money claim for the redress of unjust enrichment," E, Allan Farnsworth, Contracts 2,20, at 103 (2d ed. 1990), impossible contract. An agreement that the law will not enforce because there is no feasible way for one of the parties to perform. See IMPOSSIBILITY (3). [Cases: Contracts ~309.] indemnity contract. A contract by which the promisor agrees to reimburse a promisee for some loss irre spective of a third person's liability. Also termed contract ofindemnity. [Cases: Indemnity C-=-25.J independent contract. A contract in which the mutual acts or promises ofthe parties have no relation to each other, either as equivalents or as considerations. Cf. commutative contract. informal contract. 1. A contract other than one under seal, a recognizance, or a negotiable instrument; specif., that derives its force not from the observance of formalities but because ofthe presence in the trans action ofcertain elements that are usu. present when people make promises with binding intent -namely mutual assent and consideration (or a device other than consideration) . An informal contract may be made with or without a writing. Most modern contracts are informaL -Also termed bargain; simple contract. [Cases: Contracts ~L] 2. See parol contract. "In general, there are five essential elements to the forma tion of an informal contract. These are: (1) mutual assent; (2) consideration or some other validation device; (3) two or more contracting parties (no person may contract with hi mself); (4) parties having legal capacity to contract; (5) the absence of any statute or common-law rule declaring the particular transaction to be void. The fourth and fifth elements are essential to the creation of any contract, formal or informal. The first, second and third elements are essential to the formation of informal contracts." John Edward Murray Jr., Murray on Contracts 17, at 28 (2d ed. 1974). innominate contract (i-nom-a-nit). Roman & civil law. A contract not classifiable under any particular name; a contract for which the law supplies nothing in addition to the express agreement of the parties. La. Civ. Code art. 1914. This type of contract was developed late in classical Roman law. Although the 371 agreements were reciprocal, they did not become operational without at least part performance. Also termed innominate real contract. Cf. nominate contract. installment contract. (1896) A contract requiring or authorizing the delivery ofgoods in separate lots, or payments in separate increments, to be separately accepted. -Under the UCC, this type of agreement will be considered one contract even ifit has a clause stating that each delivery is a separate contract. UCC 2-612. [Cases: Sales (;:::; 163, 192.] installment land contract. See contract for deed. integrated contract. See INTEGRATED CONTRACT. invalid contract. An agreement that is either void or voidable. -Also termed invalid agreement. [Cases: Contracts (;:::;98.] investment contract. See INVESTMENT CONTRACT. joint contract. A contract in which two or more promi sors are together bound to fulfill its obligations, or one in which two or more promisees are together entitled to performance. Cf. severable contract. [Cases: Con tracts (;:::; IS1.] land contract. See contract for deed. land sales contract. See contract for deed. leonine contract. See adhesion contract. letter contract. In federal contract law, a written contract with sufficient provisions to permit the con tractor to begin performance. [Cases: Contracts 26.] leverage contract. See LEVERAGE CONTRACT. literal contract. 1. Roman law. A type of written contract originally created by and later evidenced by -an entry of the sum due on the debit side of a ledger, binding a signatory even though the signatory receives no consideration. -Literal contracts were often used for novations. See LITTERIS OBLIGATIO. 'Though an obligation could be created by a literal contract in the time of Gaius, the so-called literal contract ofJustin ian was not, in itself, a means of creating an obligation, but

Gaius, the so-called literal contract ofJustin ian was not, in itself, a means of creating an obligation, but was the evidence of an obligation created in some other way .... The true literal contract, as described by Gaiu5, may be defined as a means of creating an obligation to pay money by a fictitious entry ... in the creditor's account book ... with the consent of the intended debtor. A, with 8's consent, enters the fact that B is indebted to him ... and thereupon B is under an obligation to pay, though no money has passed between them." R.W. Leage, Roman Private Law316-17 (C.H. Ziegler ed., 2d ed. 1930). 2. Civil law. A contract fully evidenced by a writing and binding on the signatory. marine contract. See maritime contract. maritime contract. A contract that is recognized in admiralty jurisdiction . In general, a maritime contract relates to a vessel in its use as such, to navi gation on navigable waters, to transportation by sea, or to maritime employment. Also termed marine contract. contract marketing contract. 1. A business's agreement with an agency or other association for the promotion ofsales of the business's goods or services. 2. An agreement between a cooperative and its members, by which the members agree to sell through the cooperative, and the cooperative agrees to obtain an agreed price. marriage contract. A form ofmutual consent required for a matrimonial relationship to exist according to the law ofthe place where the consent takes place. Also termed contract of marriage. [Cases: Marriage Cr'-::> 1, lS-20(2).] mixed contract. 1. Civil law. A contract in which the respective benefits conferred are unequal. 2. A contract for both the sale of goods and services . The UCC may apply to a mixed contract if the pre dominant purpose is for the sale of goods. [Cases: Sales mutual contract. See bilateral contract. naked contract. See NUDUM PACTUM. nominate contract (nom-;l-nit). Civil law. A contract distingUished by a particular name, such as sale, insurance, or lease, the very use ofwhich determines some of the rules governing the contract and the con tractual rights of the parties, without the need for special stipulations. -The contracts are generally divided into four types: (1) real (arising from some thing done), (2) oral (arising from something said), (3) literal (arising from something written), and (4) consensual (arising from something agreed to). La. Civ. Code art. 1914. Cf. innominate contract. nude contract. See NUDDM PACTUM. onerous contract. Civil law. A contract in which each party is obligated to perform in exchange for each party's promise of performance. La. Civ. Code art. 1909. Cf. gratuitous contract. option contract. See OPTION (2). oral contract. See parol contract (1). output contract. (1904) A contract in which a seller promises to supply and a buyer to buy all the goods or services that a seller produces during a speci fied period and at a set price . Ihe quantity term is measured by the seller's output. An output contract assures the seller of a market or outlet for the period ofthe contract. -Also termed entire-output contract. Cf. requirements contract. [Cases: Sales (~=)71(4).] parol contract (p;l-rohl or par-;ll). (lSc) 1. A contract or modification of a contract that is not in writing or is only partially in writing. Also termed oral contract; parol agreement; (loosely) verbal contract. [Cases: Contracts (;::::;:,31, 238(2).] 2. At common law, a contract not under seal, although it could be in writing. Also termed informal contract; simple contract. See PAROL-EVIDENCE RULE. pay-or-play contract. A contract in which one party agrees to perform and the other agrees to pay for the promised performance even if performance is never 372 contract demanded. Pay-or-play contracts are usu. made in the entertainment industry. performance contract. 1. A contract that requires a party to act personally and does not allow substitu tion. People who provide unique personal services often make performance contracts. 2. A contract that allows the contractor to choose the means to achieve the end result. The product's specifications may be loose and allow the contractor latitude in deciding how to perform. Cf. build-to-print contract. personal contract. 1. A contract that binds a person but not that person's heirs or assignees because the contract requires a personal performance for which there is no adequate substitute. [Cases: Assignments ~19.J 2. A contract that binds a representative as an individual rather than binding the person or entity represented . For instance, contracts made by a dece dent's personal representative traditionally bind the representative, not the estate, unless expressly agreed otherwise. [Cases: Executors and Administrators 95.3. A real-property-related contract that is treated as personal property, not as a substitute for the real property. Examples include oil-and-gas royalty con tracts and property-insurance policies. pignorative contract (pig-nd-ray-tiv). Civil law. A contract in which the seller of real property, instead of relinquishing possession of the property that is theoretically sold, gives the buyer a lien; a contract of pledge, hypothecation, or mortgage ofrealty. [Cases: Mortgages ~3l.l precontract. (ISc) A contract that precludes a party from entering into a comparable agreement with someone else . Historically, a precontract was usu. a promise to marry. It formed an impediment to marriage with any person other than the promisee. The legal impediment was extinguished and revived several times until it was finally abolished in 1752 by 26 Geo. 2, ch. 33, 13. Cf. LETTER OF INTENT. [Cases: Contracts principal contract. A contract giving rise to an acces sory contract, as an agreement from which a secured obligation originates. Cf. accessory contract. private contract. An agreement between private parties affecting only private rights. procurement contract. A contract in which a govern ment receives goods or services. A procurement contract, including the bidding process, is usu. subject to government regulation. Also termed government contract. See FEDERAL ACQUISITION REGULATION. [Cases: Public Contracts ~5.] public contract. A contract that, although it involves public funds, may be performed by private persons and may benefit them. [Cases: Public Contracts 1.] quasi-contract. See implied-in-law contract. real contract. Hist. A contract in which money or other property passes from one party to another; a contract requiring something more than mere consent, such as the lending ofmoney or handing over ofa thing . This term, derived from Roman law, referred to con tracts concerning both personal and real property. Real contracts included transactions in the form of commodatum, depositum, mutuum, and pignus. Cf. consensual contract. "The essence of ... the real contracts, was that, at the time the agreement was made, one party, by delivering some thing belonging to him to the other party to the contract, imposed on that other an obligation to return the thing itself or, in the case of things intended to be consumed, an equivalent in kind. As the Roman lawyers expressed it, the contractual obligation was created by something being handed over ...." R.W. Leage, Roman Private Law292 (C.H. Ziegler ed., 2d ed. 1930). "The term 'real contract' is in common use in the Civil law, and though not commonly used by judges or writers in the common law, nevertheless describes certain obligations enforced in England from very early times. A real contract is an obligation arising from the possession or transfer of a res." Samuel Williston, A Treatise on the Law ofContracts 8. at 19 (Walter H.E.Jaeger ed., 3d ed. 1957). reciprocal contract. See bilateral contract. referral sales contract. See REFERRAL SALES CON TRACT. relative simulated contract. Civil law. A simulated contract that the parties intend to have some effects, but not necessarily those recited in the contract. La. Civ. Code art. 2027. See simulated contract. [Cases: Fraudulent Conveyances (>1,24(1).] requirements contract. (1932) A contract in which a buyer promises to buy and a seller to supply all the goods or services that a buyer needs during a speci fied period. The quantity term is measured by the buyer's requirements. A requirements contract assures the buyer ofa source for the period ofthe contract. Cf. output contract. [Cases: Sales C-:07l(4).] retail installment contract. A contract for the sale of goods under which the buyer makes periodic payments and the seller retains title to or a security interest in the goods. Also termed retail install ment contract and security agreement; conditional sales contract. Cf. chattel mortgage under MORTGAGE. [Cases: Consumer Credit C::'4.J satisfaction contract. A contract by which one party agrees to perform to the satisfaction of the other. Also termed contract to satisfaction. [Cases: Contracts sealed contract. See contract under seal. self-determination contract. Under the Indian Self Determination and Education Assistance Act, an agreement under which the federal government provides funds to an Indian tribe and allows the tribe to plan and administer a program that would other wise be administered by the federal government. 25 USCA 450bO). [Cases: Indians ~139.] service contract. A contract to perform a service; esp., a written agreement to provide maintenance or repairs 373 contract on a consumer product for a specified term. [Cases: I favor the drafting party, they can amount to adhesion Contracts 190; Sales (:::::3.1.] severable contract. (1854) A contract that includes two or more promises each of which can be enforced sepa rately, so that failure to perform one of the promises does not necessarily put the promisor in breach of the entire contract. -Also termed divisible contract; several contract. See SEVERABILITY CLAUSE. Cf. joint contract. [Cases: Contracts Cr'-:;:) 137, 171.] "A severable contract ... is one the consideration of which is, by its terms, susceptible of apportionment on either side, so as to correspond to the unascertained consider ation on the other side, as a contract to pay a person the worth ofhis services so long as he will do certain work: or to give a certain price for every bushel of so much corn as corresponds to a sample." Ivan Horniman, Wharton's Law Lexicon 215 (13th ed. 1925). shipment contract. (1S93) A contract in which a seller bears the risk ofdamage to the items sold only until they are brought to the place of shipment. -Ifa contract for the sale of goods does not address the terms of delivery, it is presumed to be a shipment contract. UCC 2-319, 2-504, 2-509. Cf. destination contract. [Cases: Sales (;::>201(4).] "In the jargon of commercial lawyers, a contract that requires or authorizes the seller to send the goods to the buyer but does not require that he deliver them at any particular destination is called a 'shipment contract.' Generally, in shipment contracts, risk of loss passes to the buyer at the point of shipment, which is also the point of 'delivery,' while in 'destination contracts' (seller must deliver at a particular destination) risk passes upon seller's tender at destination." 1 James J. White & Robert S. Summers, Uniform Commercial Code 3-5, at 128-29 (4th ed. 1995). simple contract.!. See informal contract (1). 2. See parol contract (2). simulated contract. Civil law. A contract that, bv mutual agreement, does not express the true inten't of the parties. La. Civ. Code art. 2025. - A simulated contract is absolute when the parties intend that the contract will impose no obligations; no obligations are enforceable on the parties by such a contract. A simulated contract is relative ifthe parties intend it to impose obligations different from those recited in the contract; the intended obligations are enforceable if all relevant conditions are met. A simulated contract may affect the rights of third parties. See action en declaration de simulation under ACTION (4). -Also termed simulation. [Cases: Fraudulent Conveyances (::::: 1, 24(1).] special contract. 1. See contract under seal. 2. A contract with peculiar provisions that are not ordi narily found in contracts relating to the same subject matter. 3. See express contract. specialty contract. See contract under seal. standard-form contract. (1923) A usu. preprinted contract containing set clauses, used repeatedly by a business or within a particular industry with only slight additions or modifications to meet the specific situation. -Because standard-form contracts usu. contracts. Courts offset the drafting party's advantage by construing the contract in the light least favorable to the drafting party. -Also termed standardized contract. See adhesion contract. [Cases: Contracts (:::::1.] "[U]niformity of terms in contracts typically recurring in a business enterprise is an important factor in the exact cal culation of risks. Risks that are difficult to calculate can be excluded altogether. Unforeseeable contingencies affect ing performance, such as strikes, fire, and transportation difficulties can be taken care of.... Standardized contracts have thus become an important means of excluding or controlling the ['irrational

ies can be taken care of.... Standardized contracts have thus become an important means of excluding or controlling the ['irrational factors' that could persuade a court or jury to decide against a powerful defendant]." Friedrich Kessler, Contracts ofAdhesion -Some Thoughts About Freedom ofContract, 43 Colum. L. Rev. 629, 631-32 (1943). statutory contract. A contract for which a statute pre scribes certain terms. -Statutes often govern the contracts made by public entities, but also some by private persons. For example, a statute may define and set minimum standards for terms in home-improve ment contracts. stock-option contract. A negotiable instrument that gives the holder the right to buy or sell -for a specified price within a fixed time limit a certain number of shares of the corporation's stock. See STOCK OPTION. [Cases: Corporations (::::: 116.] subcontract. (lSc) A secondary contract made by a party to the primary contract for carrying out the primary contract, or a part ofit. subscription contract. See SUBSCRIPTION (3). substituted contract. A contract made between parties to an earlier contract so that the new one takes the place of and discharges the earlier one. - A substi tuted contract differs from a novation (as "novation" is traditionally defined) in that the latter requires the substitution for the original obligor of a third person not a party to the original agreement; when the obligee accepts the third party, the agreement is immediately discharged. In contrast to both substi tuted contract and novation, an executory accord does not immediately discharge an obligation; rather, the obligation is discharged on performance, often by a third person, rather than the original obligor. Cf. NOVATION; ACCORD (2). [Cases: Accord and Satisfac tion 1; ;-';ovation (~1, 4.] "[AJ substituted contract immediately discharges the prior claim which is merged into the new agreement. Conse quently, in the absence of an express agreement to the contrary, the original claim can no longer be enforced. In the event of a breach, any action would have to be brought on the substituted agreement. ... The concept of 'sub stituted contract' was created largely to circumvent the unsatisfactory rules that until recently governed executory accords. Now that these rules have been modernized, the next step should be the reabsorption of the substituted contract into the executory accord .... [TJhe untidy distinc tion between executory accords and substituted contracts should not be allowed to complicate litigation about routine claim settlements." John D. Calamari &Joseph M. Perillo, The Law ofContracts 21.6, at 803 (4th ed. 1998). contract 374 synallagmatic contract (sin-d-lag-mat-ik). [fro Greek synallagma "mutual agreement"] Civil law. A contract in which the parties obligate themselves reciprocally, so that the obligation of each party is correlative to the obligation ofthe other. La. Civ. Code arts. 1908, 1911. - A synallagmatic contract is characterized by cor relative obligations, whereas a commutative contract is characterized by correlative performances. The term synallagmatic contract is essentially the civil law equivalent ofthe common law's bilateral contract. Cf. commutative contract. tacit contract. A contract in which conduct takes the place of written or spoken words in the offer or accep tance (or both). [Cases: Contracts ~27.] take-it-or-Ieave-it contract. See adhesion contract. take-or-pay contract. A contract requiring the buyer to either purchase and receive a minimum amount of a product ("take") or pay for this minimum without taking immediate delivery ("pay"). -These contracts are often used in the energy and oil-and-gas busi nesses. [Cases: Electricity~11(3); GasC:'13(l).] task-order contract. A contract under which a vendor agrees to render services or deliver products as ordered from time to time . Governments use this type of contract when the quantities that will be needed or the times for performance are uncertain. The contract may describe the services or products generally, but it must specify the period of perfor mance, the number ofoption periods, and the total minimum and maximum quantity of products or services that the government will acquire under the contract. When exercising its contractual rights, the government issues task orders to specify the product or service requirements, which may vary with each order. Sometimes shortened to task order. [Cases: United States third-party-beneficiary contract. A contract that directly benefits a third party and that gives the third party a right to sue any ofthe original contracting parties for breach. [Cases: Contracts (~187.] turnkey contract. See engineering, procurement, and construction contract. unconscionable contract. See unconscionable agree ment under AGREEMENT. unenforceable contract. A valid contract that, because ofsome technical defect, cannot be fully enforced; a contract that has some legal consequences but that may not be enforced in an action for damages or specific performance in the face ofcertain defenses, such as the statute of frauds. -Also termed agree ment ofimperfect obligation. Cf. illegal contract; void contract. [Cases: Contracts 138(1).] "The difference between what is voidable and what is unenforceable is mainly a difference between substance and procedure. A contract may be good, but incapable of proof owing to lapse of time, want of written form, or failure to affix a revenue stamp. Writing in the first cases, a stamp in the last, may satisfy the requirements of law and render the contract enforceable, but it is never at any time in the power of either party to avoid the transaction. The contract is unimpeachable, only it cannot be proved in court." William R. Anson, Principles ofthe Law ofContract 19-20 (Arthur L. Corbin ed., 3d Am. ed. 1919). "Courts are ... fond of condemning the unenforceable agreement as 'illegal.' This is misleading insofar as it suggests that some penalty is necessarily imposed on one of the parties, apart from the court's refusal to enforce the agreement. In some cases, the conduct that renders the agreement unenforceable is also a crime, but this is not necessarily or even usually so. It is therefore preferable to attribute unenforceability to grounds of public policy rather than to 'illegality.'" E. Allan Farnsworth, Contracts 5.1, at 323 (3d ed. 1999). unilateral contract. (1855) A contract in which only one party makes a promise or undertakes a perfor mance; a contract in which no promisor receives a promise as consideration for the promise given. [Cases: Contracts (;:=> 1.] "[M]any unilateral contracts are in reality gratuitous promises enforced for good reason with no element of bargain." P.S. Atiyah, An Introduction to the Law ofContract 126 (3d ed. 1981). "If A says to B. 'If you walk across the Brooklyn Bridge I will pay you $100: A has made a promise but has not asked B for a return promise. A has asked Bto perform, not a com mitment to perform. A has thus made an offer looking to a unilateral contract. Bcannot accept this offer by promising to walk the bridge. B must accept, if at all, by performing the act. Because no return promise is requested, at no poi nt is B bound to perform. If Bdoes perform, a contract involving two parties is created, but the contract is classi fied as unilateral because only one party is ever under an obligation." John D. Calamari &Joseph M. Perillo, The Law ofContracts 210(a), at 64-65 (4th ed. 1998). valid contract. A contract that is fully operative in accordance with the parties' intent. Also termed valid agreement. [Cases: Contracts variable annuity contract. Securities. An annuity whose payments vary according to how well the fund (usu. made up ofcommon stocks) that backs it is per forming. SEC Rule O-l(e)(l) (17 CFR 270.0-1(e)(1). See variable annuity under ANNUITY. [Cases: Securi ties Regulation ~5.30.] verbal contract. See parol contract (1). voidable contract. (18c) A contract that can be affirmed or rejected at the option of one of the parties; a contract that is void as to the wrongdoer but not void as to the party wronged, unless that party elects to treat it as void. [Cases: Contracts <>~98, 136.] "A voidable contract is a contract which, in its inception, is valid and capable of producing the results of a valid contract, but which may be 'avoided', I.e. rendered void at the option of one (or even, though rarely, of both) of the parties." P.S. Atiyah, An Introduction to the Law ofContract 37-38 (3d ed. 1981). void contract. (I7c) 1. A contract that is of no legal effect, so that there is really no contract in existence at alL - A contract may be void because it is techni cally defective, contrary to public policy, or illegal. Cf. illegal contract; unenforceable contract. [Cases: Contracts ~98, 136.] "Strictly speaking, a 'void contract' is a contradiction in terms; for the words describe a state of things in which, 375 despite the intention of the parties, no contract has been made, Yet the expression, however faulty, is a compendi ous way of putting a case in which there has been the outward semblance without the reality of contract," William R, Anson, Principles of the Law of Contract 18 (Arthur L. Corbin ed" 3d Am, ed, 1919), "A valid contract is, of course, simply a contract of full force and effect, not vitiated in any way. A so-called void contract, on the other hand, is really a contradiction in terms inasmuch as a contract has already been defined in terms applicable only to a valid contract. However, the term is convenient and is universally used, For purposes of exposition, it is convenient to treat void contracts as falling, broadly speaking, into main categories, On the one hand, are cases where one of the normal requirements for the crealion of a contract is absent, while, on the other hand, are cases where all the normal requirements are satisfied, but the contract is void because the law disap proves of its purpose or the terms by which it seeks to achieve that purpose. Typical examples of contracts which are void because one of the normal requirements is absent are contracts in which the acceptance of an offer has not been communicated or in which a promise is given gra tuitously. Typical examples of contracts which are void because of their terms or objects are wagering contracts, and contracts prejudicial to family relations." P.S_ Atiyah, An Introduction to the Law ofContract 36-37 (3d ed. 1981). 2. A contract that has been fully performed. -Also termed discharged contract. "Not only is the term 'void contract' in itself technically inaccurate, but a contract is sometimes said to be void, not because it was destitute of legal effect from its com mencement, but because it has been fully performed, and so has ceased to have legal operation. It would be more proper to describe such a contract as 'discharged.''' William R. Anson, Principles of the Law of Contract 20 (Arthur l. Corbin ed., 3d Am_ ed. 1919), 3. Loosely, a voidable contract. "Again the word 'void' has been used, even by judges and the framers of statutes, where 'voidable' is meant. One illustration will suffice. By 17 Geo. III, c, SO, failure to pay certain duties at an auction is stated to make a bidding 'nul and void to all intents,' but this does not entitle a purchaser who has repented of his bargain to avoid the contract by his own wrong, that is by refusal to pay the statutory duty. The contract is voidable at the option of the party who has not broken the condition imposed by law_" William R. Anson, Principles of the Law of Contract 20-21 (Arthur l. Corbin ed" 3d Am, ed. 1919), voluntary contract. See gratuitous contract (2). wagering contract. 1. A contract the performance of which depends on the happening of an uncertain event, made entirely for sport. See gambling contract. Cf. aleatory contract. [Cases: Gaming (;:J1,5, 10.] "Although wagering and gaming agreements were gen erally enforceable under the English common law, they were condemned in most American states, in part because they were thought to encourage shiftlessness, poverty, and immorality, and in party because they were regarded as too frivolous to be worthy ofjudicial attention, Irwin v. Williar, 110 U,S. 499 (1884) ('In England it is held that the contracts, although wagers, were not void at common law, . ' . while generally, in this country, all wagering contracts are held to be illegal and void as against public policy:)" E. Allan Farnsworth, Contracts 5,2 n.4, at 326-27 (3d ed, 1999). 2. A contract in which an uncertain event affects or results from a business transaction . With this type Contracts Clause ofwagering contract, a business person is protected from a trade risk. written contract. A contract whose terms have been reduced to writing. "Written contracts are also commonly signed, but a written contract may consist of an exchange of correspondence, of a letter written by the promisee and assented to by the promisor without signature, or even of a memorandum or printed document not signed by either party. Statutes relating to written contracts are often expressly limited to contracts signed by one or both parties. Whether such a limitation is to be implied when not explicit depends on the

limited to contracts signed by one or both parties. Whether such a limitation is to be implied when not explicit depends on the purpose and context." Restatement (Second) of Contracts 95 cmt. c (1979) (citations omitted). yellow-dog contract. See YELLOW-DOG CONTRACT. contract, freedom of. See FREEDOM OF CONTRACT. contract bond. See PERFORMANCE BOND. contract carrier. See private carrier under CARRIER. Contract Clause. See CONTRACTS CLAUSE. contract demurrage. See DEMURRAGE. contractee. Rare. A person with whom a contract is made. contract labor. See INDEPENDENT CONTRACTOR. contract loan. See add-on loan under LOAN. contract not to compete. See noncompetition covenant under COVENANT (1). contract not to sue. See covenant not to sue under COVENANT (1). contract ofaffreightment (a-frayt-mant). Maritime law. An agreement for the carriage of goods by water . A contract ofaffreightment may employ a bill oflading, a charterparty, or both to ship the goods. -Abbr. COA. Also termed contract ofcarriage. See CHAR TERPARTY. [Cases: Shipping (;:J104.] contractor. (16c) 1. A party to a contract. 2. More specif., one who contracts to do work or prOVide supplies for another. competent contractor. A contractor who has the knowl edge, skill, experience, and available equipment to do the work that he or she is employed to do without creating an unreasonable risk ofinjury to others and who has the personal characteristics necessary to carry out the work. [Cases: Labor and Employment <8::::/3132.] general contractor. One who contracts for the com pletion of an entire project, including purchasing all materials, hiring and paying subcontractors, and coordinating all the work. Also termed original contractor; prime contractor. [Cases: Contracts (;:J, 197.] independent contractor. See INDEPENDENT CONTRAC TOR. subcontractor. See SUBCONTRACTOR. contract rate. See INTEREST RATE. Contracts Clause. (1875) The clause of the U.S. Con stitution prohibiting states from passing any law that 376 contract-specification defense would impair private contractual obligations. The i enforced contracts of good faith (e.g., contracts of Supreme Court has generally interpreted this clause so that states can regulate private contractual obliga tions if the regulation is reasonable and necessary to serve an important public purpose. u.s. Const. art. I, 10, d. 1. -Also termed Contract Clause; Obligation ofCon tracts Clause. [Cases: Constitutional Law 2660-2775.) contract-specification defense. An affirmative defense that immunizes a contractor from liability for a defect in a product when the contractor has manufactured or performed according to detailed contractual orders . The defense applies to specialized, single-use compo nents ana protects a component supplier from claims of negligent design if the component conforms to the con tractual specifications unless the specifications are obviously dangerous. Under modern notions of strict liability, courts have increasingly rejected this defense. Cf. GOVERNMENT-CONTRACTOR DEFENSE; GOVERN MENT-AGENCY DEFENSE. [Cases: Products LiabilityC=;> 175, contract system. Hist. The practice of leasing prisoners out to private individuals for the prisoners' labor. contract to pledge. See CONTRACT. contract to satisfaction. See satisfaction contract under CONTRACT. contract to sell. See contract for sale (2) under CONTRACT. contractual duty. See DUTY (1). contractual fault. See FAULT. contractual indemnity. See INDEMNITY. contractual obligation. See OBLIGATION. contract uberrimae fidei. See CONTRACT. contract under seal. See CONTRACT. contractus (kan-trak-tds). [Latin] Roman law. A contract; an agreement between two or more parties, usu. to create an actionable bond between them. See CON TRAHERE. "The texts of the Roman law do not supply a definition of contract. The words contractus contrahere like 'contract' in English, are used in various senses, some- ti mes Wider, sometimes narrower. Labeo gives contractus the meaning of a reciprocal obligation, such as purchase and sale, hire, partnership. But when the Romans speak of obligation arising from contract, they mean obligations arising from convention or agreement. In Roman law it was far from being the case that all agreements which might be expected to produce a legal obligation did so." R.W. lee, The Elements of Roman Law 285 (4th ed, 1956). contractus bonae fidei, vel stricti juris (kdn-trak-tds boh-nee I-dee-I, vel strik-tI joor-I). [Latin] Roman law. Contracts ofgood faith or ofstrict law; a contract requiring that the parties perform their duties in good faith. In an action brought on a contractus bonae fidei, the plaintiff had to assert that he had not acted in bad faith. All consensual contracts were considered contractus bonae fidei. The phrase was typically used when a remedy was being sought for a breach. Judges sale) according to the requirements of good faith and contracts ofstrict law (e.g., stipulations) according to their strict terms. Sometimes shortened to contrac tus bonae fidei. contract zoning. See ZONING. contradictio in adjecto. [Latin) A contradiction in terms; an oxymoron. contradictory judgment. See rUDGMENT. contradictory motion. See MOTION (1). contra executionem (kon-trd ek-si-kyoo-shee-oh-ndm). [Law Latin] Hist. Against execution. The phrase referred to the presumption in favor of a defendant's objections to the manner of execution against the defendant's property. contrafactio (kon-trd-fak-shee-oh). [Law Latin] Hist. The act ofcounterfeiting . The word appeared frequently in the phrase contrafactio sigilli regis ("counterfeiting the king's seal"). contra fidem tabularum nuptialium (kon-trd fI-d<lm tab-p-Iair-dm ndp-shee-ay-lee-<lm). [Law Latin] Scots law. Against the provisions of the marriage contract. The phrase usu. referred to antenuptial contracts. contra formam collationis (kon-tr<l for-m<lm kd-lay shee-oh-nis). [Latin "against the form of a collation"] Hist. A writ to regain lands given to a religious society in exchange for perpetual alms. The writ was usu. sought by an heir ofthe person who had given the land away. contra formam feoffmenti (kon-tr<l for-m<lm feef-men tIl. [Latin "contrary to the form ofthe feoffment"] Hist. A writ that commanded a landowner to stop demand ing from a tenant more services than those included in the tenant's deed to the land. Also spelled contra formam feoffamenti. "Contra formam feoffamenti is a writ that lies where a man before the statute of quia emptores terra rum, made 18 Ed. 1, infeoffed another by deed to do certain service; if the feoffor or his heirs distrain him to do other service than is comprised in the deed, then the tenant shall have this writ, commanding him not to distrain him to do other service than is comprised in the deed." Termes de fa Ley 116 (1st Am. ed, 1812). contra formam statuti (kon-tr<l for-m<lm sta-tyoo-tI). [Law Latin] Contrary to the form of the statute. See AGAINST THE FORM OF THE STATUTE. contrahere (kan-tray-hd-ree), vb. [Latin "draw together"] Roman law. 1. To establish or enter into a formal rela tionship, as between husband and wife, creditor and debtor, by mutual agreement. 2. To commit a crime. 3. To accept an inheritance. 4. Generally, to perform any act oflegal Significance. See CONTRACTUS. contra hereditatem jacentem (kon-tr<l hd-red-i-tay-tdm ja-sen-tdm). [Law Latin] His!. Against a succession that the heir has not taken up; against a fallen inheritance. The phrase appeared in reference to a creditor's right to pursue a debtor's estate tor recovery of a debt even though the heir did not take up the succession. 377 contra jus belli (kon-tra jas bel-I). [Latin] Against the law ofwar. contrajus commune (kon-tra jds ka-myoo-nee). [Latin] Against common right or law; contrary to the rule of the common law. contra legem (kon-tra lee-jam ter-ee). [Latin]!. Contrary to law; against the law. 2. EQUITY CONTRA LEGEM. contra legem terrae (kon-tr.. lee-j ..m ter-ee). [Latin] Against the law of the land. contra libertatem matrimonii (kon-tra lib-ar-tay-t ..m ma-tri-moh-nee-I). [Latin] Hist. Against freedom of marriage. _ The phrase appeared in reference to marriage restraints, some of which were illegaL contra non producta (kon-tr.. non pr..-dak-t..). [Law Latin "against things not produced"] Scots law. In a reduction action, a decree declaring that a challenged deed is void. contra non valentem. See DOCTRINE OP CONTRA NON VALENTEM. contra omnes gentes (kon-tra om-neez jen-teez). [Latin] Hist. Against all people. -These were the traditional words of warranty in a deed. contra omnes mortales (kon-tra ahm-neez mor-tay leez). [Law Latin] Hist. Against all mortals. -This language was contained in an absolute warranty. contra pacem (kon-tra pay-sam). [Latin] Hist. Against the peace. _ This term was used in indictments to signify that the alleged offense was against the public peace. contra pietatem (kon-tr.. pl-..-tay-t..m). [Latini Hist. Contrary to natural duty. contraplacitum (kon-tra-plas- ..-tam). [Latin] Hist. A counterplea. contra proferentem (kon-tra prof-..-ren-t..m). [Latin "against the offeror"] The doctrine that, in interpreting documents, ambiguities are to be construed unfavor ably to the drafter. -Also spelled contra pro/erentes. Also termed ambigUity doctrine. [Cases: Contracts 155.] contrarotulator (kon-tra-roch-y;day-tar or kon-tr,,-roh ty~-lay-tdr). [Latin "controller"] Hist. A person respon sible for collecting and managing funds on behalf of the Crown or other government office. - A variety of controllers existed in England, including the COll trarotulator custumarum (controller of the customs), contrarotulator hospitii domini regis (controller of the king's household), and contrarotulator pipae (controller of the pipe i.e., an officer who collected debts due to the Exchequer). contrary to law. (16c) Illegal; unlawful; conflicting with established law. contrary to the evidence. (16c) (Of an argument, finding, etc.) conflicting with the weight of the evidence pre sented at a contested hearing. contributio lucri at damni contra spolium (kon-tr~ spoh-Iee- ..m). [Law Latin "against the spoil"] Scots law. A real action for the recovery of stolen movable property. contra tabulas. See BONORUM POSSESSIO CONTRA TABULAS. contravene (kon-tr .. -veen), vb. l. To violate or infringe; to defy <the soldier contravened the officer's order, and then went AWOL>. 2. To come into conflict with; to be contrary to <the court held that the regulation contra venes public policy>. contravening equity. See EQUITY. contravention (kon-tr~-ven-shan). l. An act violating a legal condition or obligation; esp., an entail heir's act that conflicts with the entail provision. 2. French law. A criminal breach ofa law, treaty, or agreement; a minor violation of the law. - A contravention is traditionally punishable bypeines de police, usu. a fine not exceeding 15 francs and imprisonment not exceeding three days. See public-welfare offense under OFFENSE (1). "We might get [terminological] help from the practice of Continental Europe in which three classes of punishable offenses are maintained crimes, delicts, and contraven tions. The last word is used for those minor violations of regulations, all of them necessary enough for public safety and convenience, which are so numerous and so detailed in our lives. It is a convenient term and is widely used in the United States forjust such acts, but it has not yet been made official. The Continental practice has the advantage of using the word crimes only for really serious offenses, which is in conformity with popular feeling on the subject." Max Radin. The Law and You 92 (1948). 3. Scots law. An action brought for breach of a peace bond. See LAWBURROWS. 4. Hist. Scots law. An act com mitted in violation of a legal condition or obligation, esp. one done contrary to a deed by an heir to an entail ment.

of a legal condition or obligation, esp. one done contrary to a deed by an heir to an entail ment. contrectatae (kon-trek-tay-tee). [Latin "things meddled with"] Scots law. Things that a person (such as a thief) either improperly used or tampered with. contrectatio (kon-trek-tay-shee-oh), n. [fro Latin con trectare "to touch or handle"] Hist. The act of laying hands on another's property with the intent oftaking, misappropriating, or misusing it. -This term implied a greater culpability than simply taking property without the owner's permission and, under Roman law, was an element of theft (furtum). PI. contrectationes (kon trek-tay-shee-oh-neez). contributing cause. See CAUSE (1). contributing to the delinquency ofa minor. (1913) The offense of an adult's engaging in conduct involving a minor or in the presence ofa minor likely to result in delinquent conduct. _ Examples include encourag ing a minor to shoplift, enabling underage drinking, and soliciting sex for money. Often shortened to con tributing to delinquency. See JUVENILE DELINQUENCY. Cf. IMPAIRING THE MORALS OF AMINOR. [Cases: Infants ~13.] contributio lucri et damni (kon-tri-byoo-shee-oh loo-krr et dam-m). [Latin] Scots law. Distribution of or sharing in profit and loss. -The phrase referred to one test for determining whether a partnership existed. contribution. (14c) 1. The right that gives one ofseveral persons who are liable on a common debt the ability to recover proportionately from each of the others when that one person discharges the debt for the benefit of all; the right to demand that another who is jointly respon sible for a third party's injury supply part of what is required to compensate the third party. Also termed right ofcontribution. [Cases: Contribution 1-6.] 2. One tortfeasor's right to collect from joint tortfea sors when -and to the extent that -the tortfeasor has paid more than his or her proportionate share to the injured party, the shares being determined as percentages of causal fault. [Cases: Contribution C:= 5-7.] 3. The actual payment by a joint tortfeasor of a proportionate share of what is due. Cf. INDEMNITY. 4. Maritime law. A share ofthe loss resulting from a ship's sacrifice ofcargo, payable by each party whose property was spared to the party whose property was sacrificed. 5. WAR CONTRIBUTION. contribution agreement. See SUPPORT AGREEMENT. contribution bar. Preclusion ofa defendant having con tribution rights against other defendants, who have settled their dispute with the plaintiff, from seeking contribution from them. -The bar is usu. allowed in exchange for a credit against any judgment the plain tiff obtains against the nonsettling defendant. [Cases: Contribution l~8.] contribution clause. See COINSURANCE CLAUSE. contributione facienda (kon-tri-byoo-shee-oh-nee fay shee-en-d;)). [Latin "writ for making contribution] Hist. A writ to compel a tenant in common to con tribute to a fellow tenant who has paid more than the tenant's share of a sum for which all the tenants are liable. "Contributione {acienda is a writ that lieth in case where more are bound to one thing, & one is put to the whole burden.... If tenents in comon or joynt, hold a mill (pro indiviso) & equally take the profits therof, the mill falling to decay, &one or more of them refusing to contribute toward the reparation therof, the rest shall have this writ ...." John Cowell, The Interpreter (1607). contribution margin. The difference between a product's selling price and its variable production costs. -The contribution margin measures the amount of funds available tor profit and payment of fixed costs. contributory (bn-trib-y;>-tor-ee), adj. (15e) 1. Tending to bring about a result. 2. (Of a pension fund) receiving contributions from both the employer and the employ ees. [Cases: Labor and Employment C:=-500.] contributory, n. (ISe) 1. One who contributes or who has a duty to contribute. 2. A contributing factor. 3. Rist. A person who, as a result ofbeing or representing a past or present member ofa corporation, is liable to contribute to the corporation's debts upon its winding up. contributory infringement. See INFRINGEMENT. contributory negligence. See NEGLIGENCE. contributory-negligence doctrine. (1911) Torts. The principle that completely bars a plaintiff's recovery if the damage suffered is partly the plaintiffs own fault. -Most states have abolished this doctrine and have adopted instead a comparative-negligence analysis. See FAULT; NEGLIGENCE. Cf. COMPARATIVE-NEGLIGENCE DOCTRINE. [Cases: Negligence contributory pension plan. See PENSION PLAN. control, n. (16c) The direct or indirect power to govern the management and policies of a person or entity, whether through ownership of voting securities, bv contract, or otherwise; the power or authority to ~anage, direct, or oversee <the principal exercised control over the agent>. superintending control. The general supervisory control that a higher court in a jurisdiction has over the administrative affairs of a lower court within that jurisdiction. [Cases: Courts C:=-204.] working control. The effective control ofa corporation by a person or group who owns less than 50% of the stock. [Cases: Corporations C:=-174.J control, vb. (ISc) 1. To exercise power or influence over <the judge controlled the proceedings>. 2. To regulate or govern <by law, the budget office controls expen ditures>. 3. To have a controlling interest in <the five shareholders controlled the company>. control group. (1937) The persons with authority to make decisions on a corporation's behalf. control-group test. (1969) A method of determining whether the attorney-client privilege protects com munications made by corporate employees, by provid ing that those communications are protected only if made by an employee who is a member of the group with authority to direct the corporation's actions as a result of that communication. -The U.S. Supreme Court rejected the control-group test in Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677 (1981). Cf. SUBJECT-MATTER TEST. [Cases: Privileged Communica tions and Confidentiality C;::, 123.] controlled company. See COMPANY. controlled corporate groups. See CONTROLLED GROUP. controlled corporation. See CORPORATION. controlled debate. See DEBATE. controlled foreign corporation. See CORPORATION. controlled group. Tax. Two or more corporations whose stock is substantially held by five or fewer persons. The Internal Revenue Code subjects these entities (such as parent-subsidiary or brother-sister groups) to special rules for computing tax liability. IRC (26 USCA) 851(c)(3), 1S63(a). -Also termed controlled corporate groups. [Cases: Internal Revenue G--:;) 3633, 3870-3880.] controlled-securities-offering distribution. See securi ties-offering distribution (l) under DISTRIBUTION. controlled substance. (1970) Any type of drug whose possession and use is regulated by law, including a narcotic, a stimulant, or a hallucinogen. See DRUG. [Cases: Controlled Substances 0=='9.] controlled-substance act. (1970) A federal or state statute that is designed to control the distribution, clas sification, sale, and use ofcertain drugs. -Most states have enacted these laws, which are usu. modeled on the Uniform Controlled Substances Act. [Cases: Controlled Substances controlled time. See controlled debate under DEBATE. controller. See COMPTROLLER. controlling interest. See INTEREST (2). controlling. person. See CONTROL PERSON. controlling shareholder. See SHAREHOLDER. control person. Securities. A person who has actual control or Significant influence over the issuer ofsecu rities, as by directing corporate policy. -'The control person is subject to many of the same requirements applicable to the sale ofsecurities by the issuer. Also termed controlling person. [Cases: Securities Regulation 0=='35.15, 60.40.J "[Tlhe question ofwho is a control person is highly factual and is not dependent upon ownership of any specific percentage. For example, it has been held that someone owning eight percent of a company's stock was not a control person ...." I Thomas Lee Hazen, The Law of Securities Regulation 4.24, at 279 (3d ed. 1995). control premium. See PREMIUM (3). control stock. Stock belonging to a control person at the time of a given transaction. -Also termed control shares. control test. See IRRESISTIBLE-IMPULSE TEST. control theory. (1949) The theory that people will en in criminal behavior unless certain personally social controls (such as a strong investment in con ventional, legitimate activities or a belief that criminal behavior is morally wrong) are in place to prevent them from doing so. Cf. ROUTINE-ACTIVITIES THEORY; RATIONAL-CHOICE THEORY; STRAIN THEORY. control-your-kid law. See PARENTAL-RESPONSIBILITY STATUTE. controver (kan-troh-var). Hist. A person who concocts false news. controversy. (14c) 1. A disagreement or a dispute, esp. in public. 2. A justiciable dispute. public controversy. A controversy involving issues that are debated publicly and that have substantial ramifications for persons other than those engaged in it. - A participant in a public controversy may be deemed a public figure for purposes of a defamation suit arising from the controversy. See PUBLIC FIGURE. [Cases: Libel and Slander (...--=-48(1).] "The nature and extent of an individual's involvement in a public controversy is determined by three factors: (1) the extent to which participation in it is voluntary; (2) the extent to which there is access to channels of effective communication in order to counteract false statements; and (3) the prominence of the role played in the public controversy." 50 Am. Jur. 2d Libel and Slander 75, at 390 (1995). separable controversy. (1881) A claim that is separate and independent from the other claims being asserted in a suit. _ This term is most often associated with the statute that permits an entire case to be removed to federal court if one of the claims, being separate and independent from the others, presents a federal question that is within the jurisdiction ofthe federal courts. 28 USCA 144l(c). [Cases: Removal ofCases (;::::48-61.] 3. Constitutional law. A case that requires a definitive determination of the law on the facts alleged for the adjudication of an actual dispute, and not merely a hypothetical, theoretical, or speculative legal issue. Also termed (in senses 2 & 3) actual controversy. See CASE-OR-CONTROVERSY REQUIREMENT. [Cases: Action Federal Courts 0==' 12.1.] "What is a 'case or controversy' that is justiciable in the federal courts? The answer of Chief Justice Hughes is classic if cryptic. He said: 'A controversy in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a differ ence or dispute of a hypothetical character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion adVising what the law would be upon a hypothetical state of facts.' [Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461,464 (1937) (Hughes, CJ.).] Unfortunately, this definition, though often quoted, turns upon labels that the Court had used in the past to describe cases before it, and the labels themselves are 'elastiC, inconstant, and imprecise.'" Charles Alan Wright, The Law ofFederal Courts 12, at 60-61 (5th ed. 1994). controvert (kon-tra-vart or kon-tra-v3rt), vb. (16c) To dispute or contest; esp., to deny (as an allegation in a pleading) or oppose in argument <the allegations in Peck's pleadings were never adequately contro verted>. contubernium (kon-t[y]uu-bar-nee-am). [Latin] Roman law. A marriage-like union between slaves . Contu bernium was recognized in the United States. Before slavery was abolished, only one Southern court gave a marriage between slaves legal effect upon manumis sion. See Girod v. Lewis, 6 Mart. (O.S.) 559, 559-60 (La. 1819). In 1825, the Louisiana legislature passed a law expressly making such marriages invalid. "No such thing as marriage among slaves was, or could be, recognized by the law. As slaves were

marriages invalid. "No such thing as marriage among slaves was, or could be, recognized by the law. As slaves were wholly subject to the disposal of their masters, no unions having the character of permanence or sacredness could exist among them: such a union, if it existed, would abridge the master's power of absolute control. Among slaves there could only be contubernium, cohabitation of the sexes for a longer or shorter time, but no legal matrimonium." James Hadley, Introduction to Roman Law 111 (1881). "There was ... among slaves a permitted cohabita tion called contubernium, but it brought with it no civil ri9htS .... [C]ohabitation, ... in a state of slavery, was not marriage, or evidence of marriage. It conferred no rights upon the offspring, and created no legal disabilities on the part of the father from forming a valid marriage, whenever he became in a condition which would authorize him to contract one." Adrienne D. Davis, The Private Law of Race and Sex: An Antebellum Perspective, 51 Stan. l. Rev. 221, 245 (1999). contumace capiendo. See DE CONTUMACE CAPIENDO. contumacious conduct. See CONDUCT. contumacy (kon-t[y]uu-mCl-see), n. (ISc) Contempt of court; the refusal ofa person to follow a court's order or direction. See CONTEMPT. [Cases: Contempt 1-26.] contumacious, adj. contumax. Hist. 1. A person found to be in contempt of court. 2. A person who is accused ofa crime but refuses to appear and answer the charge. contumelious (kon-t[yJoo-mee-lee-Cls), adj. Insolent, abusive, spiteful, or humiliating. contumely (kon-t[y]uu-md-Iee or bn-t[y]oo-mCl-Iee), n. Insulting language or treatment; scornful rudeness. contutor (bn-t[y]oo-tClr), n. [Latin] Roman law. A coguardian of a ward . Appointment as a coguard ian could be accomplished by testament or by court order. conubium (b-n[y]oo-bee-Clm), n. [fro Latin con "together" + nubere "to marry"] Roman law. 1. The legal capacity to wed. 2. The collection of rights that accompany a marriage between persons who have the capacity to marry. -Also spelled connubium. -Also termed jus connubii. See CONCUBINATUS; JUSTAE NUPTIAE. "The word connubium denotes properly the right to inter marry with Roman citizens; and hence to contract a Roman marriage, according to the peculiar forms and with the peculiar incidents and effects of marriage between Roman citizens. Chief among these incidents or effects was the patria potestas, or lifelong control of the father over his children, which, as we shall soon see, was among the most remarkable peculiarities ofthe Roman system. In general, connubium embraces the peculiar rights of Roman citizens, so far as they pertain to family relations." James Hadley, Introduction to Roman Law 116 (1881). conusance (kon-Yd-zClnts). Hist. 1. Cognizance; juris diction . The word con usance is actually an archaic form of cognizance. See COGNIZANCE (1); CLAIM OF COGNIZANCE. 2. JUDICIAL NOTICE. 3. An acknowledg ment (of a debt, act, or opposing claim) . Examples of conusance include an acknowledgment in replevin that the defendant took the sued-for goods, or an acknowl edgment in a land transfer (by fine) that the grantee is entitled to the land. See FINE (1). conusant (kon-Yd-zdnt), adj. (Of a person) having cog nizance or knowledge. See COGNIZA~CE. conusee (kon-Yd-zee). See COGNIZEE. conusor (kon-Yd-zdr or -zor). See COGNIZOR. convene, vb. (ISc) 1. To call together; to cause to assemble. 2. Eccles. law. To summon to respond to an action. See CONVENTIO (1). "When the defendant was brought to answer, he was said to be convened, which the canonists called conventio, because the plaintiff and defendant met to contest." 1 John Bouvier, Bouvier's Law Dictionary 668 (8th ed. 1914). 3. Civil law. To bring an action. convenience account. See ACCOUNT. convening authority. Military law. An officer (usu. a commanding officer) with the power to convene, or who has convened, a court-martial. [Cases: Military Justice 1380.] convening order. Military law. An instrument that creates a court-martial. _ 'fhe convening order speci fies (1) the type ofcourt-martial and its time and place, (2) the names of the members and the trial and defense counsel, (3) the name of the military judge, if one has been detailed, and (4) if necessary, the authority by which the court-martial has been convened. [Cases: Military Justice C:~'879.1.1 conventicle (bn-ven-tCl-bl). [fro Latin conventiculum "small assembly"] 1. An assembly of a clandestine or unlawful character. 2. An assembly for religious worship; esp., a secret meeting for worship not sanc tioned by law. 3. A place where such meetings are held. conventio (kdn-ven-shee-oh). [ff. Latin convenire "to come together"] 1. Eccles. law. The act of convening the parties to an action by summoning the defendant. 2. Hist. An agreement or convention; an agreement between two or more persons respecting a legal relation between them. See CONVENTION (1). "Conventio is a word much used both in Ancient and Modern Lawpleadings, for an Agreement or Covenant." Thomas Blount, Nomo-Lexicon: A Law-Dictionary(1670). convention. (ISc) 1. An agreement or compact, esp. one among nations; a multilateral treaty <the Geneva Convention>. See TREATY. [Cases: Treaties 2. A special deliberative assembly elected for the purpose of framing, revising, or amending a constitution. -Also termed constitutional convention. See CONSTITUTION (1). [Cases: Constitutional Law 535.] 3. An assembly or meeting ofmembers belonging to an orga nization or having a common objective <an ABA con vention>. -Also termed conference. 4. Parliamentary law. A deliberative assembly that consists of delegates elected or appointed from subordinate or constituent organizations within a state or national organization, or elected directly from the organization's member ship or from defined geographic or other constituen cies into which the membership is grouped, and that usu. exercises the organization's highest policymak ing authority <a national political convention>. Also termed assembly; congress; convocation; delegate assembly; general assembly. See HOUSE OF DELEGATES. 5. Parliamentary law. A session ofa convention (sense 4), consisting ofa series ofconsecutive meetings sepa rated by short recesses or adjournments, often during a convention (sense 3) that includes educational and social programs for the benefit ofdelegates and other members. 6. A generally accepted rule or practice; usage or custom <the court dispensed with the con vention ofhaving counsel approach the bench>. conventional, adj. 1. Customary; orthodox; tradi tional <conventional motion practice>. 2. Depending on, or arising from, the agreement ofthe parties, as distinguished from something arising by law <conven tional subrogation>. 3. Arising by treaty or convention <conventional international law>. conventional custom. See CUSTOM. conventional interest. See INTEREST (3). conventionalism. (1837) A jurisprudential conception of legal practice and tradition holding that law is a matter of respecting and enforcing legal and social rules. "Conventionalism makes two postinterpretive, directive claims. The first is positive: that judges must respect the established legal conventions of their community except in rare circumstances, It insists, in other words, that they must treat as law what convention stipulates as law. Since convention in Britain establishes that acts of Parliament are law, a British judge must enforce even acts of Parlia ment he considers unfair or unwise, This positive part of conventionalism most plainly corresponds to the popular slogan that judges should follow the law and not make new law in its place. The second claim, which is at least equally important, is negative_ It declares that there is no law no right flowing from past political decisions -apart from the law drawn from those decisions by techniques that are themselves matters of convention, and therefore that on some issues there is no law either way." Ronald Dworkin, Law's Empire 116 (1986), conventionallaw. (17c) A rule or system ofrules agreed on by persons for the regulation oftheir conduct toward one another; law constituted by agreement as having the force of special law between the parties, by either supplementing or replacing the general law ofthe land, The most important example is conventional inter national law, but there are many lesser examples such as rules and regulations of a country club or profes sional association, or the rules of golf, basketball, or any other game. -Also termed (in international law) treaty-made law; treaty-created law; treaty law. See CONVENTION (1). conventional lien. See LIEN. conventional loan. See conventional mortgage under MORTGAGE. conventional mortgage. See MORTGAGE. conventional obligation. See OBLIGATION. conventional remission. See REMISSION. conventional sequestration. See SEQlJESTRATION. conventional servitude, See SERVITlJDE (2). conventional subrogation. See SUBROGATION. Convention application. See PATENT APPLICATION. conventione (bn-ven-shee-oh-nee). [Latin] Rist. A writ for the breach of a written covenant . This writ was often used when parties wished to convey land by fine. Also termed writ ofcovenant. See FINE (1). Convention for the European Patent for the Common Market. See COMMUNITY PATENT CONVENTION. Convention for the Protection ofPerformers, Produc ers ofPhonograms, and Broadcasting Organizations. See ROME CONVENTION ON RELATED RIGHTS. Convention for the Protection of Producers ofPhono grams Against Unauthorized Duplication of Their Phonograms. See GENEVA PHONOGRAMS CONVEN TION. Convention on the Grant of European Patent. See EUROPEAN PATENT CONVENTION. Convention Relating to the Distribution of Program Carrying Signals Transmitted by Satellite. See BRUSSELS SATELLITE CONVENTION. conventus (km-ven-t<ls), n. [Latin] 1. An assembly . Conventus magnatum vel procerum ("the assembly of the nobles") was an ancient name for Parliament. 2. CONVENTUS JURIDICUS. PL conventus. conventus juridicus (bn-ven-t<ls juu-rid-i-bs). [Latin "judicial assembly"] Roman law. A court session held by a provincial governor in the leading cities of the province. Sometimes shortened to conventus. converse-Erie doctrine. See REVERSE-ERIE DOCTRINE. conversion, n. (I4c) 1. The act of changing from one form to another; the process ofbeing exchanged. equitable conversion. A change in the nature of property so that real property is treated as personal property, or vice versa, in certain circumstances. Equitable conversion is based on the maxim that equity regards as done that which ought to be done. The most common situation involves transferring real property as the parties to a contract intended before the seller experienced a change in circumstances, such as marriage or death, that could affect the prop erty's ownership. When a contract is made, the buyer acquires equitable title to the property, and the seller retains legal title. But the seller's interest is treated as one in personal property rather than in real property because the seller's true interest is in the proceeds (usu. personal property such as cash); the legal title is security for the buyer's payment. Courts usu. apply the doctrine ofequitable conversion to recognize the transfer ofequitable title, including the right of pos session, to the buyer when the contract was signed. The buyer then acquires legal title by performing under the contract. [Cases: Conversion (;=>1.] forced conversion. The conversion of a convertible security, after a call for redemption, when the value of the security that it may be converted to is greater than the amount that will be received ifthe holder permits the security to be redeemed. 2. Tort & criminal law. The wrongful possession or dis position of another's property as if it were one's own; an act or series of acts of willful interference, without lawful justification, with an item of property in a manner inconsistent with another's right, whereby that other person is deprived of the use and possession of the property. [Cases: Trover and Conversion convert, vb. conversionary, adj. "There are three distinct methods by which one man may deprive another of his property, and so be guilty of a con version and liable in an action for trover (l) by wrongly taking it, (2) by wrongly detaining it, and (3) by wrongly disposing of it. The term conversion was originally limited to the third of these cases. To convert goods meant to dispose of them, or make away with them, to deal with 382 conversionary act them, in such a way that neither owner nor wrongdoer had any further possession of them: for example, by consum ing them, or by destroying them, or by selling them, or otherwise delivering them to some third person. Merely to take another's goods, however wrongfully, was not to convert them. Merely to det

to some third person. Merely to take another's goods, however wrongfully, was not to convert them. Merely to detain them in defiance of the owner's title was not to convert them. The fact that con version in its modern sense includes instances of all three modes in which a man may be wrongfully deprived of his goods, and not of one mode only, is the outcome of a process of historical development whereby, by means of legal fictions and other devices, the action of trover was enabled to extend its limits and appropriate the territories that rightly belonged to other and earlier forms of action." R.F.V. Heuston, Salmond on the Law of Torts 94 (17th ed. 1977). "By conversion of goods is meant any act in relation to goods which amounts to an exercise of dominion over them, inconsistent with the owner's right of property. It does not include mere acts of damage, or even an aspor tation which does not amount to a denial of the owner's right of property; but it does include such acts as taking possession, refusing to give up on demand, disposing of the goods to a third person, or destroying them." William Geldart, Introduction to English Law 143 (D.C.M. Yardley ed., 9th ed. 1984). constructive conversion. Conversion consisting of an action that in law amounts to the appropriation of property. Constructive conversion could be, for example, an appropriation that was initially lawful. [Cases: Trover and Conversion (>6.] conversion by detention. Conversion by detaining property in a way that is adverse to the owner or other lawful possessor . The mere possession of property without title is not conversion. The defendant must have shown an intention to keep it in defiance of the owner or lawful possessor. [Cases: Trover and Con version (;:::>6.] conversion by estoppel. A judicial determination that a conversion has taken place -though in truth one has not -because a defendant is estopped from offering a defense . This occurs, for example, under the tra ditional rule that a bailee is estopped from denying the bailor's title even if the bailor has no title to the chatteL conversion by taking. Conversion by taking a chattel out ofthe possession ofanother with the intention of exercising a permanent or temporary dominion over it, despite the owner's entitlement to use it at all times. [Cases: Trover and Conversion 11.] conversion by wrongful delivery. Conversion by depriving an owner ofgoods by delivering them to someone else so as to change the possession. [Cases: Carriers C=,93.] conversion by wrongful destruction. Conversion by willfully consuming or otherwise destroying a chattel belonging to another person. [Cases: Trover and Con version C=,12.) conversion by wrongful disposition. Conversion by depriving an owner of goods by giving some other person a lawful title to them. [Cases: Trover and Con version direct conversion. The act of appropriating the property of another to one's own benefit, or to the benefit of a third person . A direct conversion is per se unlawful, and the traditional requirements of demand and refusal of the property do not apply. [Cases: Trover and Conversion (>3-5.] fraudulent conversion. Conversion that is committed by the use of fraud, either in obtaining the property or in withholding it. [Cases: Trover and Conversion 7.] innocent conversion. See technical conversion. involuntary conversion. The loss or destruction of property through theft, casualty, or condemnation. negligent conversion. See technical conversion. technical conversion. The taking of another's personal property by one who acts in good faith and mistak enly believes that he or she is lawfully entitled to the property. Also termed innocent conversion; negli gent conversion. conversionary act. See ACT. conversion divorce. See DIVORCE. conversion premium. Securities. The surplus at which a security sells above its conversion price. conversion price. Securities.lhe contractually specified price per share at which a convertible security can be converted into shares ofcommon stock. conversion ratio. 1. The number of common shares into which a convertible security may be converted. 2. The ratio of the face amount of the convertible security to the conversion price. conversion rule. See SPECIFIC-PURPOSE RULE. conversion security. See SECURITY. conversion statute. A law under which a state official or court oversees the sale or transfer of control of an organization in order to protect public assets. conversion value. A convertible security's value as common stock. For example, a bond that can be converted into ten shares of stock worth $40 each has a conversion value of$400. See BOND CONVERSION. converter, n. One who wrongfully possesses or disposes ofanother's property; esp., one who engages in a series of acts ofwillful interference, without lawful justifica tion, with an item of property in a manner inconsis tent with another's right, whereby that other person is deprived of the use and possession of the property. [Cases: Trover and Conversion innocent converter. A person who takes another's chattel tortiously but in good faith and without knowledge that he or she has no entitlement to it. convertible arbitrage. See kind arbitrage under ARBI TRAGE. convertible bond. See BOND (3). convertible collision insurance. See INSURANCE. convertible debenture. See DEBENTURE. convertible debt. 1. See DEBT. 2. See convertible security under SECURITY. convertible divorce. See conversion divorce under DIVORCE. convertible insurance. See INSURANCE. convertible security. See SECURITY. convertible stock. See convertible security under SECURITY. convertible subordinated debenture. See DEBENTURE. convey, vb. (14c) To transfer or deliver (something, such as a right or property) to another, esp. by deed or other writing; esp., to perform an act that is intended to create one or more property interests, regardless of whether the act is actually effective to create those interests. conveyance (bn-vay-ants), n. (iSc) 1. The voluntary transfer ofa right or of property. absolute conveyance. A conveyance in which a right or property is transferred to another free of condi tions or qualifications (Le., not as a security). Cf. con ditional conveyance. conditional conveyance. A conveyance that is based on the happening of an event, usu. payment for the property; a mortgage. Cf. absolute conveyance. derivative conveyance. See secondary conveyance. innocent conveyance. Hist. A leaseholder's conveyance ofthe leaseholder's property interest that is, some thing less than a fee simple. The conveyance is of an equitable interest. [Cases: Landlord and Tenant (;=74.] mesne conveyance (meen). An intermediate convey ance; one occupying an intermediate position in the chain oftitle between the first grantee and the present holder. original conveyance. See primary conveyance. present conveyance. A conveyance made with the intent that it take effect at once rather than in the future. primary conveyance. A conveyance that creates an estate. Examples of primary conveyances include feoffment, gift, grant, lease, exchange, and parti tion. -Also termed original conveyance. Cf. second ary conveyance. "Of conveyances by the common law, some may be called original, or primary conveyances; which are those by means whereof the benefit or estate is created or first arises: others are derivative or secondary; whereby the benefit or estate, originally created, is enlarged, restrained, transferred, or extinguished." 2 William Blackstone, Com mentaries on the Laws ofEngland 309 (1766). secondary conveyance. A conveyance that follows an earlier conveyance and that serves only to enlarge, confirm, alter, restrain, restore, or transfer the interest created by the primary conveyance. Also termed derivative conveyance; derivative deed. Cf. primary conveyance. voluntary conveyance. A conveyance made without valuable consideration, such as a deed in favor of a relative. 2. The transfer of a property right that does not pass by delivery of a thing or merely by agreement. 3. The transfer ofan interest in real property from one living person to another, by means of an instrument such as a deed. 4. The document (usu. a deed) by which such a transfer occurs. [Cases: Deeds (;=3.] 5. A means of transport; a vehicle. 6. Bankruptcy. A transfer of an interest in real or personal property, including an aSSignment, a release, a monetary payment, or the creation of a lien or encumbrance. -Also termed (in sense 6) bond for deed. See FRAUDULENT CONVEYANCE; PREFERENTIAL TRANSFER. conveyancer (bn-vay-an-s<lr). (17c) A lawyer who spe cializes in real-estate transactions . In England, a conveyancer is a solicitor or licensed conveyancer who examines title to real estate, prepares deeds and mort gages, and performs other functions relating to the transter of real property. conveyancing (kan-vay-an-sing). (17c) The act or business ofdrafting and preparing legal instruments, esp. those (such as deeds or leases) that transfer an interest in real property. "Conveyancing is the art or science of preparing documents and investigating title in connection with the creation and assurance of interests in land. Despite its connection with the word 'conveyance', the term in practice is not limited to use in connection with old system title but is used without discrimination in the context of all types of title." Peter Butt, Land Law 7 (2d ed. 1988). "Conveyancing may be regarded as the application of the law of real property in practice." Robert E. Megarry & M.P. Thompson, A Manual ofthe Law ofReal Property 125 (6th ed.1993). conveyancing counseL English law. Three to six lawyers who are appointed by the Lord Chancellor to assist the High Court of Justice with opinions in matters of property titles and conveyancing. Also termed conveyancing counsel ofthe Supreme Court; (formerly) conveyancing counsel to the Court ofChancery. conveyee (kan-vay-ee). (ISc) One to whom property is conveyed. conveyor (k<ln-vay-af or -or). (16c) One who transfers or delivers title to another. conviciandi animo (kan-vish-ee-an-dI an-<l-moh). [Latin] Hist. With the intention of insulting; with the intention of bringing into contempt. convicium (bn-vish-ee-am), n. [Latin] Roman law. Reproach, abuse, revilement, or clamor directed at a person. convict (kon-vikt), n. (15c) A person who has been found guilty of a crime and is serving a sentence of confine ment for that crime; a prison inmate. [Cases: Convicts (;=20.] convict (kan-vikt), vb. (ISc) To find (a person) guilty ofa criminal offense upon a criminal trial, a plea ofguilty, or a plea of nolo contendere (no contest). convicted felon. See FELON. conviction (kan-vik-shan), n. 1. The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty. [Cases: Criminal Law <.r~977(5).J 2. The judgment (as by a jury verdict) that a person is guilty of a crime. 3. A strong belief or opinion. abiding conviction. A settled conviction; a definite conviction based on a thorough examination ofthe case. summary conviction. A conviction of a person for a violation or minor misdemeanor as the result ofa trial before it magistrate sitting without a jury. conviction rate. (1928) Within a given area or for a given time, the number ofconvictions (including plea bargains) as a percentage ofthe total number ofpros ecutions undertaken. convivium (kan-viv-ee-am). [Latin "banquet"] Hist. Tenure that binds the tenant to provide meat and drink for the lord at least once a year. convocation. 1. CONVENTION (4). 2. See call to order under CALL (1). 3. See provincial synod under SYNOD. convoy, n. A group of vehicles or vessels traveling together for safety, esp. with armed escorts. 1he term also applies figuratively to groups traveling together for convenience. -convoy, vb. COO. abbr. CHIEF OPERATING OFFICER. co-obligee. One of two or more persons to whom an obligation is owed. See OBLIGEE. co-obligor. 1. One of two or more persons who have undertaken an obligation. See OBLIGOR. 2. A person who is under a duty of contribution. See CONTRIBU TION (1). cool blood. (17c) Criminal law. In the law ofhomicide, a condition in which the defendant's emotions are not in such an excited state that they interfere with his or her faculties and reason. -Also termed cool state of blood. See COLD BLOOD. Cf. HEAT OF PASSION. [Cases: Homicide ~669.J Cooley doctrine. (1936) Constitutional law. The principle that Congress has exclusive power under the Commerce Clause to regulate the national as well as the local aspects of national commercial matters, and that the states may regulate those aspects ofinterstate commerce so local in character as to require diverse treatment. The Supreme Court has abandoned the Cooley doctrine in favor ofa balancing test for Commerce Clause cases. Cooley v. Port Bd. of Wardens, 53 U.S. (12 How.) 299 (1851). (Cases: Commerce 11.] cooling-off period. (1913) 1. An automatic delay between a person's taking some

1.] cooling-off period. (1913) 1. An automatic delay between a person's taking some legal action and the consequence ofthat action. 2. A period during which a buyer may cancel a purchase. 3. An automatic delay in some states between the filing ofdivorce papers and the divorce hearing. 4. Securities. A period (usu. at least 20 days) between the filing ofa registration and the effective reg istration. 5. During a dispute, a period during which no action may be taken by either side . In labor disputes, a statutory cooling-off period forbids employee strikes and employer lockouts. cooling time. (1874) Criminal law. Time to recover cool blood after great excitement, stress, or provocation, so that one is considered able to contemplate, compre hend, and act with reference to the consequences that are likely to follow. See COOL BLOOD. [Cases: Homicide ~669.J "[Ojne who controls his temper time after time, follow ing repeated acts of provocation, may have his emotion so bottled-up that the final result is an emotional explo sion .... [lJn such a case the 'cooling time' begins to run not from earlier acts, but from 'the last straw.' ... As was the position in regard to the adequacy ofthe provocation, so the early holding was that the cooling time was a matter of law for the court." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 100 (3d ed. 1982). cool state ofblood. See COOL BLOOD. co-op. See COOPERATIVE. cooperation.!. An association of individuals who join together for a common benefit. 2. Patents. A unity of action to a common end or result, not merely joint or simultaneous action. 3. Int'llaw. The voluntary coordi nated action oftwo or more countries occurring under a legal regime and serving a specific objective. cooperation clause. Insurance. A policy provision requiring that the insured assist the insurer in inves tigating and defending a claim. [Cases: Insurance 3202,3204.J cooperative, n. (1883) 1. An organization or enterprise (as a store) owned by those who use its services. [Cases: Corporations ~3.J 2. A dwelling (as an apartment building) owned by its residents, to whom the apart ments are leased. -Often shortened to coop; co-op. Cf. CONDOMINIUM (2). lCases: Landlord and Tenant ~350.J cooperative adoption. See ADOPTION. cooperative cause. See CAUSE (1). cooperative corporation. See CORPORATION. cooperative federalism. See FEDERALISM. cooperativelaw. A dispute-resolution method by which the parties and their attorneys agree first to use non adversarial strategies in an attempt to reach a binding agreement, with the possibility oflitigation if a settle ment fails, typically with the same attorneys involved in the litigation. Cf. COLLABORATIVE LAW; MEDIATION (1). Cooperative State Research, Education, and Extension Service. An agency in the U.S. Department of Agri culture responsible for coordinating departmental research activities with those of academic and land grant institutions. -Abbr. CSREES. co-opt, vb. 1. To add as a member. 2. To assimilate; absorb. co-optation (koh-ahp-tay-shan), n. The act ofselecting a person to fill a vacancy (usu. in a close corporation). co-optative, adj. 385 coordinate jurisdiction. See concurrent jurisdiction under JURISDICTION. coordination-of-benefits clause. See COB CLAUSE. coowner, n. (1858) A person who is in concurrent owner ship, possession, and enjoyment of property with one or more others; a tenant in common, a joint tenant, or a tenant by the entirety. [Cases: Husband and Wife 14; Joint Tenancy C=> 1; Tenancy in Common 1.]-coown, vb. -coownership, n. COPA. abbr. CHILD ONLINE PROTECTION ACT. cop a plea, vb. (1914) Slang.(Of a criminal defendant) to plead guilty to a lesser charge as a means to avoid standing trial for a more serious offense. See PLEA BARGAIN. coparcenary (koh-pahr-s;l-ner-ee), n. (16c) An estate that arises when two or more persons jointly inherit from one ancestor, the title and right of possession being shared equally by all. Coparcenary was a form of coownership created by common-law rules ofdescent upon intestacy when two or more persons together con stituted the decedent's heirs. Typically, this situation arose when the decedent was survived by no sons but by two or more daughters, so that the daughters took as coparceners. -Also termed parcenary; tenancy in coparcenary. -coparcenary, adj. "Coparcenary is converted into separate ownership (i) by partition, or (ii) by the union in one parcerner of all the shares, and it is converted into a tenancy in common if one parcener transfers her share to a stranger." G.c. Cheshire, Modem Law of Real Property 553 (3d ed. 1933). coparcener (koh-pahr-s;l-n;lr). A person to whom an estate descends jointly, and who holds it as an entire estate; a person who has become a concurrent owner as a result ofdescent. -Also termed parcener; (archai cally) coparticeps. "Coparceners constitute a single heir, and they occupy a position intermediate between joint tenants and tenants in common. Likejoint tenants they have unity of title, interest and possession; like tenants in common, their estate is not subject to the doctrine of survivorship, and if there are three coparceners and one dies, her share passes sepa rately to her heirs or devisee, not to the survivors, though the unity of possession continues. It follows that unity of time is not necessary to constitute coparcenary, for if a man has two daughters to whom his estate descends and one dies leaving a son, such son and the surviving daughter will be coparceners." G.c. Cheshire, Modem Law of Real Property 553 (3d ed. 1933). coparticeps (koh-pahr-t;l-seps). [fr. Latin particeps "sharing"] See COPARCENER. copartner. A member of a partnership; PARTNER. [Cases: Partnership C=> 1.] "Copartner need not exist alongside partner. The joint relationship (i.e., that the existence of one partner implies the existence of one or more other partners) is clear to all native speakers of English.... Because copartner adds nothing to the language of the law, it should be avoided."' Bryan A. Garner, A Dictionary of Modem Legal Usage 223 (2d ed. 1995). copartnership. See PARTNERSHIP . The terms copart nership and partnership are equally old -each having first appeared in the 1570s. copy coparty. (1906) A litigant or participant in a legal trans action who has a like status with another party; a party on the same side ofa lawsuit. -Also termed joint party. See CODEFENDANT; COPLAINTIFF. copayment. A fixed amount that a patient pays to a healthcare provider according to the terms of the patient's health plan. -Often shortened to copay. [Cases: Insurance C=>2523.] copending, adj. Patents. (Of serial applications filed in the same patent prosecution) before the U.S. Patent and Trademark Office at or near the same time and concerning the same invention . A continuation or divisional application that is copending with its parent application benefits from the parent's earlier filing date. [Cases: Patents C=> 1l0.] copending patent. See PATENT (3). copia libelli deliberanda. See DE COPIA LIBELLI DELIBER ANDA. coplaintiff. (l8c) One of two or more plaintiffs in the same litigation. -Also termed joint plaintiff. Cf. CODE FENDANT. coprincipal. (l7c) 1. One of two or more participants in a criminal offense who either perpetrate the crime or aid a person who does so. [Cases: Criminal LawC=>59.] 2. One of two or more persons who have appointed an agent whom they both have the right to control. copulative condition. See CONDITION (2). copy, n. (14c) 1. An imitation or reproduction of an original. In the law of evidence, a copy is generally admissible to prove the contents of a writing. Fed. R. Evid. 1003. See BEST-EVIDENCE RULE. [Cases: Criminal Law C=>398(l); Evidence C=> 174.1.] archival copy. See ARCHIVAL COPY. attested copy. See certified copy. certified copy. (I8c) A duplicate of an original (usu. official) document, certified as an exact reproduction usu. by the officer responsible for issuing or keeping the original. -Also termed attested copy; exempli fied copy; verified copy. [Cases: Criminal Law C=>430; Evidence C=>338.] conformed copy. (1937) An exact copy of a document bearing written explanations of things that were not or could not be copied, such as a note on the document indicating that it was signed by a person whose signa ture appears on the original. examined copy. A copy (usu. of a record, public book, or register) that has been compared with the original or with an official record of an original. [Cases: Criminal Law C=>445; Evidence C=>367.] exemplified copy. See certified copy. true copy. A copy that, while not necessarily exact, is sufficiently close to the original that anyone can understand it. verified copy. See certified copy. 2. Copyright. The physical form in which a creative work is fixed and from which the work can be repro duced or perceived, with or without the aid ofa special device. 17 USCA 101. [Cases: Copyrights and Intellec tual Property C~1.J 3. Copyright. An expressive work that is substantially similar to a copyrighted work and not produced COincidentally and independently from the same source as the copyrighted work . Proof of copying in an infringement action requires evidence of the defendant's access to the original work and substan tial Similarity of the defendant's work to the originaL See substantial similarity under SIMILARITY. [Cases: Copyrights and Intellectual Property C=>S3(l).] "The noun 'copy' ordinarily connotes a tangible object that is a reproduction of the original work; the courts have generally found no reason to depart from this usage in the law of copyright." 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 4.08[B], at 447 (Supp. 1995). copycat drug. See generic drug under DRUG. copyhold. Hist. A base tenure requiring the tenant to provide the customary services of the manor, as reflected in the manor's court rolls. Copyhold tenure descended from pure villeinage; over time, the customs of the manor, as reflected on the manor's rolls, dictated what services a lord could demand from a copyholder. This type oftenure was abolished by the Law of Property Act ofl922, which converted copyhold land into freehold or leasehold land. Also termed copyhold tenure; customary estate; customary freehold; tenancy by the verge; tenancy par la verge; tenancy by the rod. See base tenure under TENURE; VILLEINAGE. "Out of the tenure by Villeinage, copyhold tenure devel oped.... By the end of the fifteenth century, to hold by copy of the court roll, to be a 'copyholder,' was a definite advantage, and, in most cases the holders had for many generations been personally free. The fusing of several different types of payment had also gone on, so that there was little difference between a holder in socage who had commuted the services for a sum of money and a copy holder who had done the same, except the speCific dues of heriot and merchet. In Coke's time, a very large part of the land of England was still held by copyhold." Max Radin, Handbook ofAngloAmerican Legal History 371 (1936). "[L)and held on an unfree tenure could be transferred only by a surrender and admittance made in the lord's court. The transaction was recorded on the court rolls and the transferee given a copy of the entry to prove his title; he thus held 'by copy of the court roll,' and the tenure became known as 'copyhold.'" Robert E. Megarry & M.P. Thompson, A Manual of the Law ofReal Property 22 (6th ed. 1993). privileged copyhold. Hist. A copyhold subject only to the customs ofthe manor and not affected by the non conforming dictates of the current lord. copyholder. Hist. A tenant by copyhold tenure. Also termed tenant by the verge; tenant par la verge. "The lord still held a court, and that court kept records of all transactions affecting the lands. These records were called the rolls of the court. When, for instance, a tenant sold his interest to a third party, the circumstances of the sale would be recorded, and the buyer would receive a copy of the court rolls in so far as they affected his holding. Inasmuch as he held his estate by copy of court roll, he came to be called a copyholder." G.c. Cheshire, Modern Law ofReal Property 24 (3d ed. 1933). copyhold tenant. See customary tenant under TENANT. copyleft. Slang. A software license that allows users to modify or incorporate open-

tenant under TENANT. copyleft. Slang. A software license that allows users to modify or incorporate open-source code into larger programs on the condition that the software containing the source code is publicly distributed without restric tions. copylefted software. Slang. Free software whose distri bution terms forbid the addition of restrictions if the software is redistributed in its original or a modified form. Not actually a legal term, this phrase is popu larly used as the antithesis ofcopyright by Internet free software promoters. See FREEWARE. copyright, n. (ISc) 1. The right to copy; specifically, a property right in an original work of authorship (including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectural works; motion pictures and other audiovisual works; and sound recordings) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work. [Cases: Copyrights and Intellectual PropertyG= I.] 2. The body of law relating to such works. _ Copy right law is governed by the Copyright Act of 1976. 17 USCA 101-1332. [Cases: Copyrights and Intellectual Property C~101.] -Abbr. c. -copyright, vb. -copy righted, adj. "[C)opyright is a monopoly of limited duration, created and wholly regulated by the legislature; and ... an author has, therefore, no other title to his published works than that given by statute." Ethan S. Drone, A Treatise on the Law of Property in Intellectual Productions 2 (1879). "The development of copyright law in England was shaped by the efforts of mercantile interests to obtain monopoly control of the publishing industry similar to those of the guilds that were instrumental in shaping patent and trademark law .... American copyright law came to dis tinguish between the 'common law' right of an author to his unpublished creations, and the statutory copyright that might be secured upon publication. Until recently, therefore, an author had perpetual rights to his creation, which included the right to decide when, if, and how to publish the work, but that common law right terminated upon publication at which time statutory rights become the sole rights, if any, to which the author was entitled. This distinction was altered by the Copyright Act of 1976, which shifts the line of demarcation between common law and statutory copyright from the moment of publication to the moment of fixation of the work into tangible form." Arthur R. Miller & Michael H. DaviS, Intellectual Property in a Nutshell 280-82 (2d ed. 1990). "What is copyright? From copyright law's beginnings dose to three centuries ago, the term has meant just what it says: the right to make copies of a given work at first it meant simply written work -and to stop others from making copies without one's permission." Paul Goldstein, Copyright's Highway 3 (1994). "Before the 1976 Copyright Act swept virtually all copy rightable subject matter within the exclusive domain of federal protection, the term 'copyright' implied a statutory right created by Congress in order to 'Promote the Progress of Science.' Our first copyright act, in 1790, protected only maps, charts, and books. Protection gradually was extended to musical compositions and graphic works. In the middle of the nineteenth century, photography was developed and then protected, followed at the end of the century by motion pictures (although they were protected 387 as photographs). As the twentieth century comes to a close, digital technology and multimedia forms of authorship serio ously challenge the gradual, compartmentalized approach to granting new rights and new subject matter ...." 1 William F. Patry, Copyright Law and Practice 1 (1994). ad interim copyright. Hist. A limited five-year U.S. copyright granted to the author of a foreign edition ofan English-language book or periodical if, within six months after its publication abroad, the author deposited one complete copy of that edition in the U.S. Copyright Office and requested ad interim copyright protection . An ad interim copyright was granted as an exception to the 1909 Copyright Act's manufacturing clause, which limited copyright pro tection for English-language books and periodicals to those printed in the U.S. If the copyright owner published the work in the U.S. during the period of ad interim protection and complied with the Act's manufacturing requirements, full copyright protec tion related back to the date offirst publication. Oth erwise' the work went into the public domain at the end offive years. common-law copyright. A property right that arose when the work was created, rather than when it was published. Under the Copyright Act of1976, which took effect on January 1, 1978, common-law copy right was largely abolished for works created after the statute's effective date. But the statute retained the common law's recognition that the property right arose when the work was created rather than when it was published. The common-law copyright still applies in a few areas: notably, a common-law copy right received before January 1, 1978 remains entitled to protection. 17 USCA 301. -Also termed right offirst publication. copyright ability test. A judicial test for determining whether a contributor to a joint work is an author for legal purposes, based on whether the contributor's effort is an original expression that could qualify for copyright protection on its own . This test has been adopted by a majority of courts. Cf. DE MINIMIS TEST. [Cases: Copyrights and Intellectual Property <:::=c 41(3).] Copyright Act of 1790. The first U.S. copyright law, which, like England's Statute of Anne, gave authors copyright protection for 14 years, renewable for another 14 years, after which time the work then entered the public domain. Copyright Act of 1909. A major revision of U.S. copy right law, extending the term of protection from 14 to 28 years (renewable for a second 28-year term); mea suring the copyright term from the time ofpublication rather than the time ofregistration with the Copyright Office; and expanding coverage to all writings . The Act retained the formalities for securing a copyright and required that a copyright mark appear on the work. It governed U.S. copyrights issued between July 1, 1909 and December 31,1977. Although the 1976 Copyright Act supplanted the 1909 Act, the 1909 Act still applies to some pre-1978 claims and affects certain other rights copyright notice of copyright owners. -Also termed 1909 Copyright Act. Copyright Act of 1976. A major revision of U.S. copy right law, extending the term of protection to the life of the author plus 50 years, measured from the date of creation; greatly expanding the types of works that qualify for protection; dropping the require ment that the work be published before it can be pro tected; making fair use a statutory defense to a claim in infringement; and preempting state common-law copyright. 17 USCA 101 et seq . This is the current federal statute that governs copyright registrations and rights. -Also termed 1976 Copyright Act. Copyright and the Challenge ofTechnology. See GREEN PAPER ON COPYRIGHT AND THE CHALLENGE OF TECH NOLOGY. copyright application. A written request for copyright protection made by a work's creator, filed with the U.S. Copyright Office and accompanied by a filing fee and either a deposit copy of the work or approved identi fying material. A registrant who does not meet the deposit requirement ofthe Copyright Act of 1976 risks losing copyright protection. See, e.g., Coles V. Wonder, 283 F.3d 798 (6th Cir. 2002). [Cases: Copyrights and Intellectual Property <:::=C50.20.] copyright bug. See COPYRIGHT NOTICE. Copyright Clause. (1940) U.S. Const. art. I, 8, cl. 8, which gives Congress the power to secure to authors the exclusive rights to their writings for a limited time. [Cases: Copyrights and Intellectual Property <:::=C2.] copyright clearinghouse. An organization that licenses members' works to applicants for specific purposes . A clearinghouse usu. licenses only one type or class of works, such as songs, photographs, cartoons, or written materials. copyright infringement. See INFRINGEMENT. copyright legend. See COPYRIGHT NOTICE. copyright-management information. The name and other identifying information about the creator, per former, or copyright owner of a creative work. See DIGITAL MILLENNIUM COPYRIGHT ACT. copyright misuse. In an infringement action, an affir mative defense based on the copyright owner's use ofa license to restrain trade or in any other manner that is against public policy . The defense, roughly parallel to the declining patent-misuse defense, was invoked, for example, to prevent the American Medical Association from enforcing its copyright in its medical-procedure codes after licensing them to the U.S. Government for use in the Medicaid program. See Practice Mgmt. Info. Corp. V. Am. Med. Ass'n, 121 F.3d 516 (9th Cir. 1997). [Cases: Copyrights and Intellectual Property <:::=C75.] copyright notice. (1889) A notice that a work is copy right-protected, uSU. placed in each published copy of the work. A copyright notice takes the form (year of publication) (name of basic copyright owner). Since March 1, 1989, such notice is not required for a 388 copyright owner copyright to be valid (although the notice continues to provide certain procedural advantages). The phrase "all rights reserved" is usu. no longer required. -Some times termed copyright bug; copyright legend; notice of copyright. See ALL RIGHTS RESERVED; BUENOS AIRES CONVENTION. [Cases: Copyrights and Intellectual Property C=>50.1(2).] copyright owner. (1886) 1. One who holds an exclusive right or rights to copyrighted material. 17 USCA 101. [Cases: Copyrights and Intellectual Property C=>41.] 2. One who is named as the owner on any copyright notice attached to a work and who is registered with the U.S. Copyright Office as the owner. Copyright Royalty Tribunal. A former board in the leg islative branch of the federal government responsible for establishing and monitoring copyright royalty rates for published and recorded materials . Its functions are now performed by copyright arbitration royalty panels. [Cases: Copyrights and Intellectual Property C=>48.1.] coram (kor-dm), prep. [Latin] (Of a person) before; in the presence of. coram domino rege (kor-dm dom-d-noh ree-jee). [Latin] Hist. Before our lord the king. coram ipso rege (kor-dm ip-soh ree-jee). [Latin] Hist. Before the king himself. -Also termed coram ipso domino rege. "The court of king's bench (so called because the king used formerly to sit there in person, the style of the court still being coram ipso rege) is the supreme court of common law in the kingdom ...." 3 William Blackstone, Commentar ies on the Laws ofEngland 41 (1768). coram judice (kor-dm joo-di-see). 1. In the presence of a judge. 2. JURISDICTION. coram nobis (kor-dm noh-bis). [Latin "before us"] 1. Hist. A writ of error taken from a judgment of the King's Bench . "Before us" refers to the sovereign, in contrast to the writ coram vobis ("before you"), which refers to any court other than King's Bench, esp. the Court ofCommon Pleas. 2. A writ oferror directed to a court for review ofits own judgment and predicated on alleged errors offact. -Also termed writ oferror coram nobis; writ ofcoram nobis; (misspelled) quorum nobis. [Cases: Criminal Law C=> 1411; Judgment C=>334.] coram non judice (kor-dm non joo-di-see). [Latin "not before a judge"] 1. Outside the presence of a judge. 2. Before a judge or court that is not the proper one or that cannot take legal cognizance of the matter. coram paribus (kor-dm par-d-bds). [Latin] Hist. Before the peers. This phrase appeared in deed attesta tions. Coram Rege Court. See KINds BENCH. coram sectatoribus (kor-dm sek-td-tor-d-bds). [Law Latin] Hist. Before the suitors. coram vobis (kor-dm voh-bis), n. [Latin "before you"] Hist. 1. A writ of error directed to a court other than the King's Bench, esp. the Court ofCommon Pleas, to review its judgment. "Certain errors in the process of the court, committed by the defaults of the clerks, or as to matters of fact, could be remedied by the court itself. The writ issued for this purpose was called a writ of error 'coram vobis' if the error was in the Common Pleas; 'coram nobis' if it was in the King's Bench." 1 William Holdsworth, A History of English Law 224 (7th ed. 1956). 2. A writ of error sent by an appellate court to a trial court to review the trial court's judgment based on an error offact. -Also termed writ oferror coram vobis; writ ofcoram vobis. [Cases: Courts C=>207.1.] Cordon rule

obis; writ ofcoram vobis. [Cases: Courts C=>207.1.] Cordon rule. A rule of the U.S. Senate requiring any committee that is reporting a bill amending current law to show in its report what wording the bill would strike from or insert into the current statute. The rule is named for Senator Guy Cordon (1890-1969) of Oregon, who proposed it. The analogous rule in the U.S. House ofRepresentatives is the Ramseyer rule. See RAMSEYER RULE. core earnings. See operating earnings under EARNINGS. core proceeding. Bankruptcy. 1. A proceeding involv ing claims that substantially affect the debtor-creditor relationship, such as an action to recover a preferential transfer. In such a proceeding, the bankruptcy court, as opposed to the district court, conducts the trial or hearing and enters a final judgment. Cf. RELATED PROCEEDING. 2. In federal courts, an action involv ing subject matter that is clearly within the confines offederal bankruptcy law and the management ofthe bankrupt's estate. A federal bankruptcy court may also hear noncore matters that have an independent basis for subject-matter jurisdiction, such as a federal question. For a nonexclusive list of core proceedings, see 28 USCA 157(b)(2). [Cases: Bankruptcy C=>2043 2063.] core rights. 1. Human rights that are generally recog nized and accepted throughout the world . These rights include freedom from extrajudicial execution, torture, and arbitrary arrest and detention. Core rights are embodied in many human rights conventions, includ ing the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. 2. Fundamental rights claimed within a social, cultural, or other context. These are not universally recognized rights. For example, the ability to vote may be a fundamental right of citizens in one country but only a privilege limited to selected people in another. corespondent. (1857) 1. A coparty who responds to a petition, such as a petition for a writ of certiorari. 2. In some states, a coparty who responds to an appeal. 3. Family law. In a divorce suit based on adultery, the person with whom the spouse is accused of having committed adultery. See RESPONDENT. [Cases: Divorce C=>26,72.] 389 core work product. See opinion work product under WORK PRODUCT. corium forisfacere (kor-ee-am for-is-fay-sa-ree). [Law Latin "to forfeit skin"] Hist. To whip (a person, esp. a servant) as punishment. -Also termed corium perdere. corium redimere (kor-ee-am ri-dim-ar-ee). [Latin] Hist. To redeem one's skin . This referred to a person who paid restitution for an offense. cornage (kor-nij). [fr. Anglo-French corne "horn"] Hist. 1. A type ofgrand-sergeanty military tenure in which the tenant was bound to blow a horn to alert others whenever an enemy approached. 2. A form of tenure entitling a landowner to rent based on the number of horned cattle owned by the tenant. Cornage may have developed into a type of serjeanty or knight service tenure that obligated the tenant to blow a horn to warn of invaders, esp. along the border with Scotland. Also termed (in senses 1 & 2) horn tenure. See KNIGHT-SERVICE; SERJEANTY. 3. A tribute of corn due only on special occasions, as distinguished from a regularly provided service . This term has often been spelled coraage or coraagium, stemming perhaps from a spelling error in the 1569 edition of Bracton's De Legibus et Consuetudinibus Angliae. Cornelian law. See LEX CORNELIA. corner, n. 1. The common end of two survey lines; an angle made by two boundary lines. [Cases: Boundar iesG"-::'7.] existent corner. A corner whose location can be verified by an original landmark, a surveyor's field notes, or other reliable evidence. lost corner. A point in a land description, such as a landmark or natural object, whose position cannot be reasonably determined from traces ofthe original marks or other acceptable evidence. _ The location can be determi ned hy reference to one or more inde pendent points remaining in the deSCription. obliterated corner. A corner that can be located only with evidence other than that put in place by the original surveyor. 2. The acquisition of control over all or a dominant quantity of a commodity with the purpose of artifi cially enhancing the price, carried out by purchases and sales ofthe commodity -and of options and futures in a way that depresses the market price so that the participants are enabled to purchase the commodity at satisfactory prices and withhold it from the market for a time, thereby inflating its price. _ A corner accom plished by confederation, with the purpose of raising or depressing prices and operating on the market, is a criminal conspiracy if the means are unlawful. corner influence. Property. In an appraisal, the addi tional value ofa corner lot, esp. one zoned for commer cial purposes, attributable to factors such as increased light and air, easier ingress and egress, greater accescoronatore eligendo sibility by pedestrian and automotive traffic, and more space for displays and advertisements. cornering the market. The act or process ofacquiring ownership or control ofa large portion ofthe available supply ofa commodity or security, permitting manipu lation ofthe commodity's or security's price. Corn Products doctrine. Tax. The principle that a capital asset should be narrowly defined to exclude inventory related property that is integrally tied to the day-to-day operations of a business. Corn Prods. Refining Co. v. c.I.R., 350 U.S. 46, 76 S.Ct. 20 (1955). [Cases: Internal Revenue 3230.1.J corody (kor-or kahr-a-dee). Hist. An allowance of money, accommodation, food, or clothing given by a religious house to any person who Signed over personal or real property or both in exchange or to a royal servant at the Crown's request . The amount of property required from a person who purchased a corady depended on the person's age and remaining life expectancy. The Crown was entitled to a corody for a retired royal servant only from houses that the Crown had founded. Theoreticallv, the cost ofa retired royal servant's care would come from the royal purse. But since the royal purse did not always open, royal servants were not always accepted as corodiaries. Cf. LIFE-CARE CONTRACT. -Also spelled carrody. corodiary (kd-roh-dee-air-ee), corrodiary, n. "Corrody is a partition for one's sustenance. Be it bread, ale, herring, a yearly robe, or sum of money for the robe. 50 of a chamber, and stable for my horses, when the same is coupled with other things ...." 5ir Henry Finch, Law, or a Discourse Thereof 162 (1759). corollary (kor-or kahr-a-Ier-ee), n. (14c) A proposition that follows from a proven proposition with little or no additional proof; something that naturally follows. corona (kCl-roh-na). [Latin] Hist. The Crown . This term formerly appeared in criminal pleadings, e.g., placita coronae ("pleas of the Crown"). coronation case. Hist. Any of the many lawsuits for breach of contract resulting from the postponement ofthe coronation ofEdward VII because ofhis illness. In one case, for example, the defendant had agreed to hire a ship for watching the naval review by King Edward VII and for a day's cruise around the fleet. The court held that the contract was not frustrated by the cancellation ofthe naval review -the day's cruise around the fleet was still possible, and indeed, the ship could have been used for many other purposes. coronator (kor-or kahr-Cl-nay-tar). [fro Latin corona "crown"] A coroner. See CORONER (2). "The formal title of custos (or occasionally conservator) placitorum corone continued to be used throughout the Middle Ages, but the more convenient shorter forms wronarius, which was confined to a short period around 1200, and CORONATOR rapidly gained greater currency. The English form was 'coroner' or 'crowner.'" R.F. Hunnisett, The Medieval Coroner 1 n.! (1961). coronatore eligendo. See DE CORO:>lATORE ELIGENDO. 390 coronatore exonerando coronatore exonerando. See DE CORONATORE EXONE RANDO. coroner (kor-or kahr-<:l-n<:lr). (14c) 1. A public official whose duty is to investigate the causes and circum stances ofany death that occurs suddenly, suspiciously, or violently. See MEDICAL EXAMINER. [Cases: Coroners C==' 1.] 2. Hist. A royal official with countywide juris diction to investigate deaths, to hold inquests, and to assume the duties of the sheriff if need be. The coroner acted as a check on the sheriff, a local officer whose growing power threatened royal control over the counties. The coroner reported criminal activity to the king's justices in eyre. When the eyre court arrived in a county, it collected the coroner's roll to learn what had occurred in the county during the eyre's absence. The justices fined the coroner if he failed to produce the roll, or if they learned of criminal activity in the county from a source other than the roll. "The office of coroner was established in September 1194, when the justices in eyre were required to see that three knights and one clerk were elected in every county as 'keepers of the pleas of the crown.' These were the first county coroners.... Throughout the Middle Ages the coroner could be ordered to perform almost any duty of an administrative or inquisitorial nature within his bailiwick, either alone or with the sheriff, but there were other duties which belonged more specifically to his office and which he performed without being ordered. These consisted of holding inquests upon dead bodies, receiving adjura tions of the realm made by felons in sanctuary, hearing appeals, confessions of felons and appeals of approvers, and attending and sometimes organising exactions and outlawries promulgated in the county court. These were the 'crown pleas' which the coroner had to 'keep' ...." R.F. Hunnisett, The Medieval Coroner 1 (1961). coroner's court. See COURT. coroner's inquest. See INQUEST (1). coroner's jury. See JURY. corpnership. [Portmanteau word probably formed fr. corporation + partnership] A limited partnership (usu. having many public investors as limited partners) whose general partner is a corporation. corporale sacramentum (kor-p<:l-ray-Iee sak-r<:l-men t<:lm). See corporal oath under OATH. corporal oath. See OATH. corporal punishment. See PUNISHMENT. corporate, adj. (16c) Ofor relating to a corporation, esp. a business corporation <corporate bonds>. corporate acquisition. (1911) The takeover of one cor poration by another ifboth parties retain their legal existence after the transaction. Cf. MERGER (8). corporate agent. See AGENT (2). corporate authority. (1817) 1. The power rightfully wielded by officers of a corporation. [Cases: Corpo rations (:::c:-297, 300-303.] 2. In some jurisdictions, a municipal officer, esp. one empowered to represent the municipality in certain statutory matters. [Cases: Municipal Corporations C==' 168.] corporate body. See CORPORATION. corporate bond. See BOND (3). corporate books. (1846) Written records of a corpora tion's activities and business transactions. corporate charter. See CHARTER (3). corporate citizenship. (1889) Corporate status in the state of incorporation, though a corporation is not a constitutional citizen for the purposes ofthe Privileges and Immunities Clauses in Article IV 2 and in the 14th Amendment to the U.S. Constitution. [Cases: Cor porations C==' 1.1(3), 52.] corporate counsel. See COUNSEL. corporate crime. See CRIME. corporate distribution. See DISTRIBUTION. corporate domicile. See DOMICILE. corporate entity. See ENTITY. corporate franchise. See FRANCHISE (2). corporate immunity. See IMMUNITY (2). corporate indenture. See INDENTURE. corporate merger. See MERGER (8). corporate-mortgage trust. A financing device in which debentures are issued and secured by property held in trust. An independent trustee protects the interests ofthose who purchase the debentures. [Cases: Corpo rations C=='476(1).] corporate name. See NAME. corporate officer. See OFFICER (1). corporate-opportunity doctrine. (1942) The rule that a corporation's directors, officers, and employees are precluded from using information gained as such to take personal advantage of any business opportuni ties that the corporation has an expectancy right or property interest in, or that in fairness should other wise belong to the corporation . In a partnership, the analogous principle is termed the firm-opportunity doctrine. [Cases: Corporations C=='315

analogous principle is termed the firm-opportunity doctrine. [Cases: Corporations C=='315.] corporate-owned life insurance. See LIFE INSURANCE. corporate purpose. (18c) The general scope of the business objective for which a corporation was created . A statement of corporate purpose is commonly required in the articles ofincorporation. corporate raider. A person or business that attempts to take control of a corporation, against its wishes, by buying its stock and replacing its management. Often shortened to raider. -Also termed hostile bidder; unfriendly suitor. Cf. WHITE KNIGHT. corporate resolution. See RESOLUTION (2). corporate seal. See SEAL. corporate speech. See SPEECH. corporate stock. See STOCK. corporate trustee. See TRUSTEE (1). corporate veil. (1927) The legal assumption that the acts ofa corporation are not the actions ofits shareholders, so that the shareholders are exempt from liability for 391 the corporation's actions. See PIERCING THE CORPO RATE VEIL. [Cases: Corporations corporate welfare. See WELFARE (2). corporation, n. (l5c) An entity (usu. a business) having authority under law to act as a single person distinct from the shareholders who own it and having rights to issue stock and exist indefinitely; a group or succession of persons established in accordance with legal rules into a legal or juristic person that has a legal personality distinct from the natural persons who make it up, exists indefinitely apart from them, and has the legal powers that its cop.stitution it. Also termed corpora tion aggregate; aggregate corporation; body corporate; corporate body. See COMPANY. [Cases: Corporations Cr~1.] -incorporate, vb. corporate, adj. "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.... [I]t pos sesses only those properties which the charter of its creation confers upon it." Trustees of Dartmouth College v. Woodward, 17 U.S. (4 WheaL) 518, 636 (1819) (Marshall, J.). acquired corporation. The corporation that no longer exists after a merger or acquisition. [Cases: Corpora tions (:::586.] admitted corporation. A corporation licensed or authorized to do business within a particular state. Also termed qualified corporation; corporation quali fied to do business. aggressor corporation. A corporation that attempts to obtain control of a publicly held corporation by (1) a direct cash tender, (2) a public exchange offer to shareholders, or (3) a merger, which requires the agreement of the target's management. alien corporation. Seeforeign corporation. brother-sister corporation. See sister corporation. business corporation. A corporation formed to engage in commercial activity for profit. Cf. nonprofit cor poration. C corporation. A corporation whose income is taxed through it rather than through its shareholders. Any corporation not electing S-corporation tax status under the Internal Revenue Code is a C corporation by default. Also termed subchapter-C corporation. Cf. Scorporation. charitable corporation. (l7c) A nonprofit corpora tion that is dedicated to benevolent purposes and thus entitled to special tax status under the Internal Revenue Code. Also termed eleemosynary cor poration. See CHARITABLE ORGANIZATION. [Cases: Internal Revenue C=>4045-4069.] civil corporation. Any corporation other than a chari table or religiOUS corporation. clearing corporation. A corporation whose capital stock is held by or for a national security exchange or association registered under federal law such as the Securities Exchange Act of 1934. corporation close corporation. (1840) A corporation whose stock is not freely traded and is held by only a few share holders (often within the same family). -Ihe require ments and privileges of close corporations vary by jurisdiction. Also termed closely held corporation; closed corporation; (when family owned) family cor poration. [Cases: Corporations G:::>3.] collapsible corporation. (1955) A corporation formed to give a short-term venture the appearance of a long term investment in order to portray income as capital gain, rather than profit. -The corporation is typically formed for the sole purpose of purchasing property. The corporation is usu. dissolved before the property has generated substantial income. The Internal Revenue Service treats the income earned through a collapsible corporation as ordinary income rather than as capital gain. IRC (26 USCA) 341 (a). Cf. collapsi 'p under PARTNERSHIP. lCases: Interna enue C=>3728.] common-law corporation. See corporation by prescrip tion. conglomerate corporation. See CONGLOMERATE. controlled corporation. 1. A corporation in which the majority of the stock is held by one individual or firm. [Cases: Internal Revenue C=>3643.]2. A corpo ration in which a substantial amount (but less than a majority) of the stock is held by one individual or firm. _ Some states presume control with as little as 10%. [Cases: Corporations C=> 1.4, 1.5.] controlled foreign corporation. Tax. A foreign corpo ration in which more than 50% ofthe stock is owned by U.S. citizens who each own 10% or more of the voting stock. -These shareholders (known as u.s. shareholders) are required to report their pro rata share of certain passive income of the corporation. IRC (26 USCA) 951-964. -Abbr. CFC. [Cases: Internal Revenue C=>4119.] cooperative corporation. An entity that has a corporate existence, but is primarily organized for the purpose ofproviding services and profits to its members and not for corporate profit. -The most common kind of cooperative corporation is formed to purchase real property, such as an apartment building, so that its shareholders may lease the apartments. See COOPERA TIVE (1). [Cases: Landlord and Tenant G=>350, 352.] corporation aggregate. 1. See CORPORATION. 2. Hist. A corporation made up of a number of individuals. Cf. corporation sole. "The first division of corporations is into aggregate and sole. Corporations aggregate consist of many persons united together into one society, and are kept up by a per petual succession of members, so as to continue forever: of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church." 1 William Blackstone, Commentaries on the Laws ofEng/and 457 (1765). "The corporation aggregate is the typical corporation, which, at any given time, normally contains a number of individuals as members. This number may be great or small, varying from the hundreds of thousands of 392 corporation burgesses of a large borough to the two members of a private joint-stock company. It is even said that a corpora tion aggregate would not necessarily cease to exist if all its members died, leaving no successors; and this is, probably, sound doctrine." EdwardJenks, The Book ofEnglish Law 118 (P.B. Fairest ed., 6th ed. 1967). corporation by estoppel. A business that is deemed, by operation of law, to be a corporation because a third party dealt with the business as if it were a corpora tion, thus preventing the third party from holding a shareholder or officer ofthe corporation individually liable. See ESTOPPEL. [Cases: Corporations (:::::;34.] corpora.tion by prescription. A corporation that, though lacking a charter, has acquired its corporate status through a long period ofoperating as a corpo ration. Such an entity may engage in any enterprises that are not manifestly inconsistent with the purposes for which it is assllmed to have been created. -Also termed common-law corporation. [Cases: Corpora tions corporation de facto. See de facto corporation. corporation de jure. See de jure corporation. corporation for profit. Seefor-profit corporation. corporation qualified to do business. See admitted corporation. corporation sole. A series ofsllccessive persons holding an office; a continuous legal personality that is attrib uted to successive holders ofcertain monarchical or ecclesiastical positions, such as kings, bishops, rectors, vicars, and the like. This continuous personality is viewed, by legal fiction, as having the qualities of a corporation. Cf. corporation aggregate (2). "It would have been quite possible to explain in the same way the devolution of the lands of the Crown, or of a bishopriC, or of a rectory, from the sovereign, bishop. or rector, to his successor; but English law has preferred to introduce for this purpose the fiction, peculiar to itself, of a 'corporation sole.'" Thomas E. Holland, The Elements of jurisprudence 350-51 (13th ed. 1924). "But English Law knows another kind of corporation, the 'corporation sole', in which the group consists, not of a number of contemporary members, but of a succession of single members, of whom only one exists at any given time. This kind of corporation has been described by eminent legal writers as a 'freak'; but it is a freak which undoubt edly has a legal existence. It has been said that the Crown is the only common law lay corporation sole; though the Master of Trinity College, Cambridge, has been claimed as another example, and statutory examples, such as the Public Trustee and the Treasury Solicitor, are conspicuous. But the examples of ecclesiastical corporations sole are numerous. Every diocesan bishop. every rector of a parish, is a corporation sole, and can acquire and hold land (and now also personal property) even during the vacancy of the see or living, for the benefit of his successors, and can bind his successors by his lawful conveyances and con tracts. But, obviously, the distinction between the bishop or rector, in his personal and in his corporate character, is even harder to grasp than that between the members of a corporation aggregate and the corporation itself .. " EdwardJenks, The Book ofEnglish Law 118-19 (P.B. Fairest ed., 6th ed. 1967). dead corporation. See dissolved corporation. de facto corporation (di fak-toh). An incompletely formed corporation whose existence operates as a defense to personal liability ofthe directors, officers, and shareholders who in good faith thought they were operating the business as a duly formed corpo ration. Also termed corporation de facto. [Cases: Corporations (:::::;28.] de jure corporation (di juur-ee). A corporation formed in accordance with all applicable laws and recognized as a corporation for liability purposes. -Also termed corporation de jure. [Cases: Corporations dissolved corporation. A corporation whose charter has expired or been revoked, relinquished, or volun tarily terminated. Also termed dead corporation. Corporations C~617-619.1 domestic corporation. (1819) 1. A corporation that is organized and chartered under the laws of a state. The corporation is considered domestic by the char tering state. Cf. foreign corporation. 2. Tax. Acorpo ration created or organized in the United States or under federal or state law. IRC (26 USCA) (4). [Cases: Internal Revenue C=>3623; Taxation 3485.] dormant corporation. 1. An inactive corporation; a legal corporation that is presently not operating. 2. A corporation whose authority to do business has been revoked or suspended either by operation of law (as by failure to pay franchise taxes) or by an act of the government official responsible for the corporation's authority. dummy corporation. (1899) A corporation whose only function is to hide the principal's identity and to protect the principal from liability. ecclesiastical corporation (i-klee-zee-as-t<}-kal). English law. A corporation that is organized for spir itual purposes or for the administration ofproperty held for religious uses. -Also termed religious cor poration. Cf.lay corporation. "Ecclesiastical corporations. Corporations created for the furtherance of religion .... They are of two kinds: (1) corporations sole, i.e., bishops, certain deans, parsons and vicars; and (2) corporations aggregate, i.e., deans and chapters, and formerly prior and convent, abbot and monks, and the like. Such corporations are called 'religious corporations,' or 'religious societies,' in the United States." 1 Stewart Rapalje & Robert L. Lawrence, A Dictionary of American and English Law 432 (1883). eleemosynary corporation. See charitable corpora tion. foreign corporation. (I8c) A corporation that was orga nized and chartered under the laws ofanother state, government, or country <in Arizona, a California corporation is said to be a foreign corporation>. Also termed alien corporation. Cf. domestic corpora tion. [Cases: Corporations '''Foreign' is defined as 'not native or domestic.' This is the meaning given to the word in the various judicial defini tions of foreign corporations. With to a particular state or country, a corporation by or under the laws of that state or country is a 'domestic corporation,' 393 and any corporation that owes its existence to the laws of another state, government or country is a 'foreign corpo ration.' The difference between a domestic and a foreign corporation of the same kind is one of status, determined by considerations that are external to the corporation and not internal or organic. Moreover, foreign corporations of all classes fall equally within the definition. In many jurisdictions foreign corporations are defined by statute,

ations of all classes fall equally within the definition. In many jurisdictions foreign corporations are defined by statute, and the statutory definitions do not differ in substance from that stated above." 17 Fletcher Cyclopedia on the Law of Private Corporations 8290, at 6-7 (1998). for-profit corporation. A corporation organized for the purpose of making a profit; a business corpora tion. Also termed corporation for profit; moneyed corporation. government corporation. See public corporation (3). joint-venture corporation. A corporation that has joined with one or more individuals or corporations to accomplish some specified project. lay corporation. English law. A corporation made up of laypersons, and existing for a business or charitable purpose. Cf. ecclesiastical corporation. limited-liability corporation. See limited-liability company under COMPANY. migratory corporation. A corporation formed under the laws of another state than that of the incorpo rators' residence for the purpose of carrying on a significant portion of its business in the state of the incorporators' residence or in a state other than where it was incorporated. moneyed corporation. 1. A corporation that uses money capital in its business, esp. one (such as a bank) that engages in the exchange or lending of money. 2. See for-profit corporation. multinational corporation. A company with opera tions in two or more countries, generally allowing it to transfer funds and products according to price and demand conditions, subject to risks such as changes in exchange rates or political instability. Also termed transnational corporation. multistate corporation. A corporation incorporated under the laws of two or more states. municipal corporation. See MU:-<ICIPAL CORPORA TION. municipal corporation de facto. See MUNICIPAL COR PORATION. nonprofit corporation. (1908) A corporation organized for some purpose other than making a profit, and usu. afforded special tax treatment. -Also termed not-for-profit corporation. Cf. business corporation. [Cases: Corporations (;::::c3; Internal Revenue 4045-4071.] nonstock corporation. A corporation that does not issue shares of stock as evidence of ownership but instead is owned by its members in accordance with a charter or agreement. Examples are mutual insur ance companies, charitable organizations, and private clubs. [Cases: Corporations (;::::c64.] corporation not-for-profit corporation. See nonprofit corporation. parent corporation. (1893) A corporation that has a controlling interest in another corporation (called a subsidiary corporation), usu. through ownership of more than one-half the voting stock. Often short ened to parent. -Also termed parent company. political corporation. See public corporation (2). private corporation. (17c) A corporation founded by and composed of private individuals principally for a nonpublic purpose, such as manufacturing, banking, and railroad corporations (including charitable and religious corporations). -Also termed quaSi-indi vidual. [Cases: Corporations professional corporation. (1958) A corporation pro viding services of a type requiring a professional license. A professional corporation may be made up of architects, accountants, lawyers, physicians, veterinarians, or the like. -Abbr. P.e. public corporation. (17c) 1. A corporation whose shares are traded to and among the general public. -Also termed publicly held corporation. [Cases: Corpora tions 0::;;,3.] 2. A corporation that is created by the state as an agency in the administration ofcivil gov ernment. -Also termed political corporation. 3. A government-owned corporation that engages in activities that benefit the general public, usu. while remaining financially independent . Such a corpo ration is managed by a publicly appointed board. Also termed (in sense 3) government corporation; public-benefit corporation. [Cases: States (;::::c84.] publicly held corporation. See public corporation (1). public-service corporation. (1894) A corporation whose operations serve a need of the general public, such as public transportation, communications, gas, water, or electricity . This type ofcorporation is usu. subject to extensive governmental regulation. [Cases: Public Utilities (;.::::.> 103.J qualified corporation. See admitted corporation. quasi-corporation. An entity that exercises some of the functions of a corporation but that has not been granted corporate status by statute; esp., a public cor poration with limited authOrity and powers (such as a county or school district). Also sometimes termed quasi-municipal corporation. Cf. MUNICIPAL CORPO RATION. [Cases: Municipal Corporations quasi-public corporation. A for-profit corporation pro viding an essential public service . An example is an electric company or other utility. railroad corporation. A corporation organized to construct, maintain, and operate railroads. -Also termed railroad company. [Cases: Railroads "A railroad company or corporation is usually regarded as a private corporation, and justly so, as contrasted with a strictly public corporation, such as a city, county, township, or the like governmental subdivision, but it is not a private corporation in the strict sense that an ordinary business corporation is, for it is charged with duties of a public nature that distinguish it from a purely and strictly private 394 Corporation Act corporation." 1 Byron K. Elliott & William F. Elliott, A Treatise on the Law ofRailroads 3, at 7 (3d ed. 1921). registered corporation. (1928) A publicly held corpora tion, a security of which is registered under 12 ofthe Securities Exchange Act of 1934. The corporation is subject to the Act's periodic disclosure requirements and proxy regulations. 15 USCA 781. religious corporation. A corporation created to carry out some ecclesiastical or religious purpose. See eccle siastical corporation. [Cases: Religious Societies 4.] S corpor-ation. (1961) A corporation whose income is taxed through its shareholders rather than through the corporation itself . Only corporations with a limited number of shareholders can elect S-corpo ration tax status under Subchapter S of the Internal Revenue Code. Also termed subchapter-S corpora tion; tax-option corporation. Cf. Ccorporation. [Cases: Internal Revenue C='3885-3903.] shelfcorporation. See shelf company under COMPANY. shell corporation. (1969) A corporation that has no active business and usu. exists only in name as a vehicle for another company's business operations. sister corporation. One of two or more corporations controlled by the same, or substantially the same, owners. Also termed brother-sister corporation. [Cases: Corporations 3.] small-business corporation. (1898) 1. A corporation having no more than 75 shareholders and otherwise satisfying the requirements of the Internal Revenue Code provisions permitting a subchapter Selection. IRC (26 USCA) 1361. See S corporation. [Cases: Internal Revenue C='388S-3903.] 2. A corpora tion receiving money for stock (as a contribution to capital and paid-in surplus) totaling not more than $1,000,000, and otherwise satisfying the requirements ofthe Internal Revenue Code section 1244(c) thereby enabling the shareholders to claim an ordinary loss on worthless stock. IRC (26 USCA) 1244(c). sole corporation. A corporation having or acting through only a single member. [Cases: Corporations 03.) spiritual corporation. A corporation whose members are spiritual persons, such as bishops, rectors, and abbots. stock corporation. A corporation in which the capital is contributed by the shareholders and divided into shares represented by certificates. [Cases: Corpora tions C='6S.J subchapter-C corporation. See C corporation. subchapter-S corporation. See S corporation. subsidiary corporation. (1882) A corporation in which a parent corporation has a controlling share. - Often shortened to subsidiary; sub. [Cases: Corporations C='174.J surviving corporation. A corporation that acquires the assets and liabilities of another corporation by a merger or takeover. [Cases: Corporations C='586.] target corporation. A corporation over which control is being sought by another party. See TAKEOVER. tax-option corporation. See Scorporation. thin corporation. A corporation with an excessive amount of debt in its capitalization. See thin capi talization under CAPITALIZATION. [Cases: Corpora tions trading corporation. A corporation whose business involves the buying and selling ofgoods. tramp corporation. A corporation chartered in a state where it does not conduct business. [Cases: Corpora tions C='63S.J transnational corporation. See multinational corpo ration. trust corporation. See trust company under COMPANY. U.S.-owned foreign corporation. A foreign corporation in which 50% or more of the total combined voting power or total value of the stock is held directly or indirectly by U.S. citizens. IRC (26 USCA) 904(g) (6). -Ifthe dividend or interest income paid by a U.S. corporation is classified as a foreign source, the U.S. corporation is treated as a u.S.-owned foreign corporation. IRC (26 USCA) 861. [Cases: Internal Revenue C='4099-4105, 4119.] Corporation Act. Hist. A 1661 English statute (13 Car. 2, St. 2, ch. 1) prohibiting the holding of public office by anyone who would not take the Anglican sacrament and the oaths ofsupremacy and allegiance. -The Act was repealed by the Promissory Oaths Act of 1871. corporation counsel. See COUNSEL. corporation court. See COURT. Corporation for National and Community Service. A federal corporation that fosters civic responsibil ity, provides educational opportunity for those who contribute services, and oversees AmeriCorps (the domestic Peace Corps), Learn and Serve America, and the National Senior Service Corps . It was established in 1993.42 USCA 12651. corporator (kor-pJ-ray-tdr). (18c) 1. A member of a cor poration. 2. INCORPORATOR. "Usually, a member of a corporation, in which sense it includes a stockholder; also, one of the persons who are the original organizers or promoters of a new corporation. The corporators are not the corporation, for either may sue the other." William C. Anderson, A Dictionary of Law 266 (1889). corporeal (kor-por-ee-JI), adj. (15c) Having a physical, material existence; TANGIBLE <land and fixtures are corporeal property>. Cf. INCORPOREAL. -corpore ality, n. corporeal hereditament. See HEREDITAMENT. corporeal ownership. See OWNERSHIP. corporeal possession. See POSSESSION. 395 corporeal property. See PROPERTY. corporeal thing. See THING. corps diplomatique (kor dee-pl;J-ma-teek). DIPLOMATIC CORPS. corpus (kor-p;Js), n. [Latin "body"] 1. The property for which a trustee is responsible; the trust principal. Also termed res; trust estate; trust fund; trust property; trust res; trust. [Cases: Trusts (::::> 1.] 2. PRINCIPAL (4). PI. corpora (kor-p;J-r;J), corpuses (kor-p;J-s;Jz). corpus comitatus (kor-p;Js kom-;J-tay-t;Js). [Latin "the body of a county"] Hist. The area within a territorial jurisdiction rather than on the "high seas" and hence where admiralty jurisdiction did not originally extend. See INFRA CORPUS COMITATUS. corpus corporatum (kor-p;Js kor-p;J-ray-t;Jm). [Latin] Hist. A corporate body; a corporation. corpus cum causa (kor-p;Js bm kaw-z;J). [Law Latin "the body with the cause"] Hist. A writ issuing out of Chancery to remove both a person and a record from an inferior court in order to review a judgment issued by the inferior court. ''The first use of the writ to challenge imprisonment was in cases of privilege; an officer of a central court, or a litigant there, could be released from imprisonment in another court by writ of privilege in habeas corpus form. The Court of Chancery at the same time developed a similar proce dure for reviewing the cause of imprisonment in an inferior tribunal; this species of writ was called corpus cum causa, and it became a common remedy against the misuse of borough jurisdiction in the fifteenth century." J.H. Baker, An Introduction to English Legal History 168 (3d ed. 1990). corpus delicti (kor-p;Js d;J-lik-tI or -tee). [Latin "body of the crime"] (1818) 1. The fact of a transgression; ACTUS REUS. [Cases: Criminal Law (::::>26; Homicide (::::>511.] "[Tlhe definition of 'corpus delicti' often becomes impor tant. (a) Essentially it signifies merely the fact of the specific loss or injury sustained, e.g., death of a victim or burning of a house. (b) To this is added also, by most courts, the criminal agency of

a victim or burning of a house. (b) To this is added also, by most courts, the criminal agency of some person (i.e., not mere accident). (c) A few courts also include evidence of the accused's identity with the deed; but this is absurd, for it virtually signifies making 'corpus delicti' synonymous with the whole charge. -Many courts treat this rule with a pedantic and unpractical strictness." John H. Wigmore, A Students' Textbook ofthe Law ofEvidence 310 (1935). "One of the important rules of evidence in criminal cases is that which requires proof of the corpus delicti. Literally defined this term means 'the body of the offense,' or 'the substance of the crime.' In popular language it is used to describe the visible evidence of the crime, such as the dead body of a murdered person. Properly used, however, it is applicable to any crime and relates particularly to the act element of criminality; that is, that a certain prohibited act has been committed or result accomplished and that it was committed or accomplished by a criminal human agency." Justin Miller, "The Criminal Act," in Legal Essays in Tribute to Orrin Kip McMurray at 469, 478 (1935). "The phrase 'corpus delicti' does not mean dead body, but body of the crime, and every offense has its corpus delicti. Its practical importance, however, has been very largely limited to the homicide cases. It concerns the usability in a criminal case of a confession made by the defendant outside of court." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 140 (3d ed. 1982). Corpus Juris Civilis 2. Loosely, the material substance on which a crime has been committed; the physical evidence ofa crime, such as the corpse of a murdered person . Despite the common misunderstanding, a victim's body could be evidence ofa homicide but the prosecutor does not have to locate or present the body to meet the corpus delicti requirement. corpus delicti rule. (1926) Criminal law. The doctrine that prohibits a prosecutor from proving the corpus delicti based solely on a defendant's extrajudicial state ments . The prosecution must establish the corpus delicti with corroborating evidence to secure a convic tion. [Cases: Criminal Law (::::>412(6),517.3.] corpus juris (kor-p;Js joor-is). [Latin "body of law"] (1832) The law as the sum or collection oflaws <Corpus Juris Secundum>. -Abbr. C,J. corpus juris Angliae (kor-p;Js joor-is ang-glee-ee). The entire body of English law, comprising the common law, statutory law, equity, and special law in its various forms. Corpus Juris Canonici (kor-p;Js joor-is b-nOn-;J-sI). [Latin] Hist. The body ofthe canon law, compiled from the decrees and canons ofthe Roman Catholic Church. The Corpus Juris Canonici emerged during the 12th century, beginning with the publication of Gratian's Decretum (c. 1140). In addition to the Decretum, it includes Raymond of Pefiaforte's Liber Extra (1234), the Liber Sextus of Pope Boniface VIII (1298), the Cle mentines of Pope Clement V (1313), the Extravagantes Joannis of Pope John XXII (1325), and Extravagantes Communes published by Pope John's successors (1499 1502). In 1582, the entire collection was edited by a commission ofchurch dignitaries and officially named the Corpus Juris Canonici. It remained the Catholic Church's primary body oflaw until the promulgation of the Code of Canon Law in 1917, now replaced by that of 1983. "After Gratian, later papal enactments, called 'decretals,' were collected and issued by the authority of various popes.... A revised edition of such 'decretals' ... was presented to Pope Gregory IX in 1234 -only a short while, therefore, after the final form of Magna Carta in 1225 and issued by him with statutory force. The revision freely made changes in the text of the enactments and the resulting compilation in four 'books' was regarded as a 'Code,' corresponding to the 'Code' of Justinian, just as the Decretum of Gratian corresponded to the Digest.... All these compilations and collections were, from the six teenth century on, known as the Corpus Juris Canonici, the 'Body of Canon Law,' and formed the basis of the law administered in the Church courts." Max Radin, Handbook ofAnglo-American Legal History 33-34 (1936). Corpus Juris Civilis (kor-p;Js joor-is s;J-vil-is or s;J-vI-lis). The body ofthe civil law, compiled and codified under the direction of the Roman emperor Justinian in A.D. 528-556 . The collection includes four works -the Institutes, the Digest (or Pandects), the Code, and the Novels. The title Corpus Juris Civilis was not original, or even early, but was modeled on the Corpus Juris Canonici and given in the 16th century and later to editions ofthe texts ofthe four component parts ofthe Roman law. See ROMAN LAW. Cf. JUSTINIAN CODE. 396 corpus possess;onis corpus possession is (kor-pds pd-zes[h]-ee-oh-nis)_ [Latin] Roman law_ The physical aspect ofpossession_ See animus possidendi under ANIMUS_ corpus pro corpore (kor-pds proh kor-pd-ree). [Latin] Hist. Body for body. _ This phrase commonly expressed the liability ofa surety in a civil action (a mainpernor). See MAINPRISE. correal (kor-ee-dl or kd-ree-dl), adj. [fr. Latin correus "codebtor"] Roman law. Ofor relating to liability that is joint and several. _ A correal debtor who paid an entire obligation had no right ofaction against a codebtor. See CORREUS; SOLIDARY. "If Aulus, having first obtained from Titius the promise of a hundred aurei, turned to Seius and said, Spondesne mihi, Sei, cosdem centum aUl"eos dal"e? (Do you engage, Seius, to give me the same one hundred aurei?), then if Seius answered, Spondeo, there was one single obligation for a hundred aurei, binding in full on each of the two debtors. Aulus could demand a hundred from Titius or a hundred from Seius, and in case of non-payment could sue either one, taking his choice between them, for the full amount. If either paid the hundred, whether willingly or by compulsion, the other was released: for there was but one debt, and that was now discharged. This kind of obligation is called correal obligation (correal, from con, and I"eus or I"ei, connected parties, parties associated in a common debt or credit)." James Hadley, Introduction to Roman Law 258 (1881). correality (kor-ee-al-;Hee), n. The quality or state of being correal; the relationship between parties to an obligation that terminates when an entire payment is made by one of two or more debtors to a creditor, or a payment is made by a debtor to one of two or more creditors, "But there were circumstances. apart from indivisibility, in which each of the parties might be liable in full. .. Several were liable or entitled. each in solidum, under an obliga tion, but the thing was due only once. Satisfaction by, or to, one of those liable, or entitled. ended the whole obligation, and action by one of the joint creditors, or against one of the debtors, not only 'novated' the obligation between the actual parties. but destroyed it altogether as against the others. This relation is commonly called correality (correi debendi vel credendi)," w.w. Buckland, A Manual ofRoman Private Law 349-50 (2d ed. 1939). correal obligation. See OBLIGATION. corrected policy. See INSURANCE POLICY. correction, n. (14c) 1. Generally, the act or an instance of making right what is wrong <mark your correc tions in red ink>. 2. A change in business activity or market price follOWing and counteracting an increase or decrease in the activity or price <the broker advised investors to sell before the inevitable stock-market cor rection>. See DOWN REVERSAL. 3. (usu. pI.) The pun ishment and treatment ofa criminal offender through a program of imprisonment, parole, and probation <Department of Corrections>. -correct, vb. cor rective (for senses 1 & 2), correctional (for sense 3), adj. correction, house of. See house ofcorrection under HOUSE. correctional institution. See PRISON. correctional system. A network of governmental agencies that administer a jurisdiction's prisons and parole system. corrective advertising. Advertising that informs con sumers that earlier advertisements contained a decep tive claim, and that provides consumers with corrected information. -This type ofadvertising may be ordered by the Federal Trade Commission. corrector ofthe staple. Hist. A clerk who records mer chants' transactions at a staple. See STAPLE (2). correi credendi (kor-ee-I kri-den-dI). [Latin] Roman law. Joint creditors. -Also termed correi stipulandi (stip ya-Ian-dr). See STIPULATIO. "The mode for stipu/atio is stated in the Institutes. Of several stipulators (correi credendi, active correality) each asks the debtor and he answers once for all. Of several promisors (correi debendi, passive correality) the creditor asks each and they answer together." w.w. Buckland, A Manual ofRoman Private Law 350 (2d ed. 1939). correi debendi (kor-ee-l di-ben-dI). [Latin] Roman & Scots law. Joint debtors. -Also termed correi promit tendi (proh-mi-ten-dI). See STlPULATIO. "Correi Debendi -The name given by the Roman law to persons jointly bound.... In the Scotch law. if bound sever ally, and not jointly and severally, each IS bound only for his share, whatever be the responsibility of the others." Hugh Barclay, A Digest of the Law ofScotland 196 (3d ed. 1865). correi stipulandi. See COR REI CREDENDI. correlative (kd-rel-;l-tiv), adj. (16c) 1. Related or corre sponding; analogous. 2. Having or involving a recipro calor mutually interdependent relationship <the term right is correlative with duty>. correlative-rights doctrine. (1938) 1. Water law. The principle that adjoining landowners must limit their use ofa common water source to a reasonable amount. [Cases: Waters and Water Courses lOL] "Under the correlative rights doctrine .. , rights to ground water are determined by land ownership. However, owners of land overlying a single aquifer are each limited to a reasonable share of the total supply of groundwater. The share is usually based on the acreage owned." David H. Getches, Water Law in a Nutshell 249 (3d ed. 1997). 2. Oil & gas. The rule that a lessee's or landowner's right to capture oil and gas from the property is restricted by the duty to exercise that right without waste or neg ligence . This is a corollary to the rule ofcapture. Cf. RULE OF CAPTURE (4). [Cases: Mines and Minerals C:=> 47.] correspondence audit. See AUDIT. correspondent. n. (17c) 1. The writer of a letter or letters. 2. A person employed by the media to report on events. 3. A securities firm or financial institution that performs services for another in a place or market that the other does not have direct access to. cor respond, vb. correspondent bank. See BANK. corresponding promise. See PROMISE. corresponding secretary. See SECRETARY. 397 correus (kor-ee-<ls), n. [Latin] Roman law. 1. A codebtor in a contract; a joint debtor. 2. A co-creditor in a contract; a joint creditor. PI. correi (kor-ee-I). See STIP ULATIO. corrigendum (kor-Cl-jen-d<lm), n. [Latin "correction"] An error in a printed work discovered after the work has gone to press. -Also termed erratum. PL corri genda (kor-<l-jen-dCl). corroborate (b-rob-Cl-rayt), vb. To strengthen or confirm; to make more certain <the witness corrobo rated the plaintiff's testimony>. corroborating evidence. See EVIDENCE. corroborating witness. See WITNESS. corroboration (k,,-rob-<l-ray-sh;m), n. (l6c) 1. Confir mation or support by additional evidence or author ity <corroboration ofthe witness's testimony>. [Cases: Witnesses (;:::>41O-416.J 2. Formal confirmation or rat ification <corroboration ofthe treaty>. corroborate, vb. corroborative (k;Hob-d-rd-tiv), adj. -corrobo rator (kd-rob-<l-ray-t<lr), n. corroborative evidence. See corroborating evidence under EVIDENCE. corrody. See CORODY. corrupt, adj. 1. Having an unlawful or depraved motive; esp., influenced by bribery. 2. Archaic. (Of a person)

ful or depraved motive; esp., influenced by bribery. 2. Archaic. (Of a person) subject to corruption ofblood. "[Tlhere are divers offences made Treason by Act of Parlia ment, whereof, though a Man be Attaint, yet his Blood. by Provisoes therein, is not corrupt, nor shall he forfeit any thing ...." Thomas Blount, Noma-Lexicon: A Law Dictionary (1670). corrupt, vb. 1. To change (a person's morals or principles) from good to bad. 2. To destroy or diminish the quality and usefulness of an electronic or mechanical device or its components. 3. Archaic. To impose corruption of blood on (a person). . corrupting, n. See IMPAIRING THE MORALS OF A MINOR. corruption. (l4c) 1. Depravity, perversion, or taint; an impairment ofintegrity, virtue, or moral principle; esp., the impairment of a public official's duties by bribery. [Cases: Officers and Public Employees (;:::> 121.J "The word 'corruption' indicates impurity or debasement and when found in the criminal law it means depravity or gross impropriety." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 855 (3d ed. 1982). 2. The act of doing something with an intent to give some advantage inconsistent with official duty and the rights ofothers; a fiduciary's or official's use ofa station or office to procure some benefit either personally or for someone else, contrary to the rights of others. corruption in office. See official misconduct under MIS CONDUCT. corruption ofa minor. See IMPAIRING THE MORALS OF AMINOR. corruption of blood. A defunct doctrine, now con sidered unconstitutional, under which a person loses cost the ability to inherit or pass property as a result of an attainder or of being declared civilly dead. -Also termed corruption ofthe blood. See ATTAINDER; civil death (1) under DEATH. "Corruption of blood is, when anyone is attainted offelony or treason, then his blood is said to be corrupt; by means whereof neither his children, nor any of his blood, can be heirs to him, or to any other ancestor, for that they ought to claim by him. And if he were a noble or gentleman before, he and all his children are made thereby ignoble and ungentle ...." Termes de fa Ley 125 (1 st Am. ed. 1812). corruptly, adv. (16c) In a corrupt or depraved manner; by means ofcorruption or bribery . As used in criminal law statutes, corruptly usu. indicates a wrongful desire for pecuniary gain or other advantage. corrupt-motive doctrine. (1962) Criminal law. The rule that conspiracy is punishable only if the agreement was entered into with an evil purpose, not merely with an intent to do the illegal act. This doctrine -which originated in People v. Powell, 63 N.Y. 88 (1875) has been rejected by the Model Penal Code. -Also termed Powell doctrine. [Cases: Conspiracy (;:::>24.5.] corrupt-practices act. (1897) A federal or state statute that regulates campaign contributions and expendi tures as well as their disclosure. [Cases: Elections 317.1.] corsnaed, n. See ordeal ofthe morsel under ORDEAL corsned, n. See ordeal ofthe morsel under ORDEAL. corvee seigneuriale (kor-vay sen-yuu-ree-ahl). [FrenchJ Hist. Services due the lord of the manor. -Often short ened to corvee. cosen, vb. See COZEN. cosening, n. See COZENING. cosign, vb. (1967) To sign a document along with another person, usu. to assume obligations and to supply credit to the principal obligor. -cosignature, n . cosigner. See COMAKER. cosinage (k;)z-;m-ij). Hist. A writ used by an heir to secure the right to land held by a great-great-grandfather or certain collateral relatives. -Also spelled cosenage; cousinage. Also termed consanguineo; de consan guineo; de consanguinitate. Cf. AIEL; BESAYEL "[Tlhere is the closest possible affinity between the Mort d'Ancestor and the action of Cosinage. If I claim the seisin of my uncle, I use the one; if I claim the seisin of a first cousin, I use the other. But procedurally, the two stand far apart." 2 Frederick Pollock & Frederic William Maitland, History ofEnglish Law Before the Time ofEdward f 569 (2d ed.1899). cosmetic damages. See DAMAGES. cost, n. (13c) 1. The amount paid or charged for some thing; price or expenditure. Cf. EXPENSE. aboriginal cost. 'The cost of an asset incurred by the first company to use it for public utilities. acquisition cost. (I926) 1. An asset's net price; the original cost of an asset. -Also termed historical cost; original cost. 2. See LOAD. after cost. A delayed expense; an expense, such as one for repair under a warranty, incurred after the prin cipal transaction. applied cost. A cost appropriated to a project before it has been incurred. average cost. The sum ofthe costs ofbeginning inven tory and the costs of later additions divided by the total number ofavailable units. average variable cost. The average cost per unit of output, arrived at by dividing the total variable expenses of production by the total units of output. Cf. LONG-RUN INCREMENTAL COST. avoidable cost. A cost that can be averted if produc tion is held below a certain level so that additional expenses will not be incurred. carrying cost. 1. Accounting. The variable cost of stocking one unit of inventory for one year. Carrying cost includes the opportunity cost of the capital invested in the inventory. -Also termed cost ofcarrying. 2. A current charge or noncapital expen diture made to prevent the causing or accelerating of the termination of a defeasible estate, as well as the sums spent on repairs required by the duty to avoid permissive waste. common cost. See indirect cost. cost ofcompletion. (1852) Contracts. An element of damages based on the expense that would be incurred by the nonbreaching party to finish the promised per formance. [Cases: Damages (:::::>120, 121.] direct cost. (1818) The amount of money for material, labor, and overhead to produce a product. distribution cost. Any cost incurred in marketing a product or service, such as advertising, storage, and shipping. fixed cost. (1894) A cost whose value does not fluctu ate with changes in output or business activity; esp., overhead expenses such as rent, salaries, and depre ciation. Also termed fixed charge;fixed expense. flotation cost. (usu. pl.) A cost incurred in issuing addi tional stock. historical cost. See acquisition cost. implicit cost. See opportunity cost. indirect cost. (1884) A cost that is not specific to the production of a particular good or service but that arises from production activity in general, such as overhead allocations for general and administrative activities. Also termed common cost. manufacturing cost. The cost incurred in the produc tion ofgoods, including direct and indirect costs. marginal cost. (1891) The additional cost incurred in producing one more unit ofoutput. mitigation cost. A party's expenditures to reduce an existing harm so that further damage might be halted, slowed, or diminished. [Cases: Damages C='42, 45.] mixed cost. A cost that includes fixed and variable costs. net book cost. The cost of property when it was first acquired or devoted to pUblic use, minus accumulated depreciation. Also termed rate-base value. net cost. The cost of an item, arrived at by subtracting any financial gain from the total cost. opportunity cost. (1894) The cost ofacquiring an asset measured by the value of an alternative investment that is forgone <her opportunity cost of $1,000 in equipment was her consequent inability to invest that money in bonds>. Also termed implicit cost. original cost. See acquisition cost (1). prime cost. The true price paid for goods on a bona fide purchase. prophylactic cost. A party's expenditures to prepare property to withstand or prevent potential future harm. These costs are not related to any existing property damage and are usu. not recoverable under insurance contracts. [Cases: Insurance (:::::>2277.] replacement cost. (1928) The cost of a substitute asset that is equivalent to an asset currently held. The new asset has the same utility but mayor may not be identical to the one replaced. social cost. 'Ine cost to society ofany particular practice or rule <although automobiles are undeniably benefi cial to society, they carry a certain social cost in the lives that are lost every year on the road>. sunk cost. (1916) A cost that has already been incurred and that cannot be recovered. tangible cost. Oil & gas. A particular expense asso ciated with drilling, such as the costs incurred for materials and land. -Drilling and testing costs are considered intangible. transaction cost. (usu. pI.) A cost connected with a process transaction, such as a broker's commission, the time and effort expended to arrange a deal, or the cost involved in litigating a dispute. unit cost. The cost of a single unit of a product or service; the total manufacturing cost divided by the number of units. variable cost. (1953) The cost that varies in the short run in dose relationship with changes in output. 2. (pl.) The charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees. Also termed court costs. 3. (pl.) The expenses of litigation, prosecution, or other legal transaction, esp. those allowed in favor of one party against the other. Some but not all states allow parties to claim attor ney's fees as a litigation cost. -Also termed (in sense 3) litigation costs. [Cases: Costs (:::::>2, 146-194, 194.16; Federal Civil ProcedureC--'-J2721-2748.] accruing costs. Costs and expenses incurred after judgment. costs ofincrease. See COSTS OP INCREASE. 399 costs ofthe day. Costs incurred in preparing for trial. costs to abide event. Costs incurred by a success ful party who is entitled to an award of those costs incurred at the conclusion of the matter; esp., appel late court's order for payment of costs to the party who finally prevails in a proceeding that has been returned to a lower court. [Cases: Costs ~69.1 interlocutory costs. Costs incurred during the pendency ofan appeal. taxable cost. A litigation-related expense that the prevailing party is entitled to as part of the court's award. [Cases: Costs C=)2; Federal Civil Procedure ~2735.1 cost accounting. See cost accounting method under ACCOUNTING METHOD. cost accounting method. See ACCOUNTING METHOD. cost and freight. A mercantile-contract term allocat ing the rights and duties of the buyer and the seller of goods with respect to delivery, payment, and risk ofloss, whereby the seller must (1) clear the goods for export, (2) arrange for transportation by water, and (3) pay the costs of shipping to the port of destination. -When the goods are safely stowed on the receiving ship while docked, the seller's delivery is complete; the risk of loss then passes to the buyer. This term is used only when goods are transported by sea or inland waterway. -Abbr. CF; CFR; C&F; CandF. Cf. COST, INSURANCE, AND FREIGHT; FREE ON BOARD. [Cases: Sales ~77(2), 202(5).] cost approach. (1949) A method of appraising real property, based on the cost of building a new structure with the same utility, assuming that an informed buyer would pay no more for the property than it would cost to build a new structure having the same usefulness. Cf. MARKET APPROACH; INCOME APPROACH. [Cases: Taxation C=348(4).] . cost basis. See BASIS (2). cost-benefit analysis. (1963) An analytical technique that weighs the costs ofa proposed decision, holding, or project against the expected advantages, economic or otherwise. cost bill. See bill ofcosts under BILL (2). cost bond. See BOND (2). cost-book mining company. An association ofpersons organized for the purpose of working mines or lodes, whose capital stock is divided into shares that are trans ferable without the consent of other members. -The management ofthe mine is entrusted to an agent called a purser. [Cases: Mines and Minerals ~101.] cost depletion. Oil &gas. The recovery ofan oil-and-gas producer's basis (i.e., investment) in a producing well by deducting the basis proportionately over the producing life of the well. Treas. Reg. 1.611-2. Cf. PERCENTAGE DEPLETION. "Under cost depletion, the taxpayer in an oil and gas property deducts the basis in the property from the income as oil and gas are produced and sold. Cost depletion is cost-of-living clause calculated by a formula ... [that] relates the recovery of the taxpayer'

tion is cost-of-living clause calculated by a formula ... [that] relates the recovery of the taxpayer's investment to the proportion that the current unit sales of oil and gas bear to the total anticipated sales of oil and gas from the property. The investment is recov ered ratably over the life of the reserves." John S. lowe. Oil and Gas Law in a Nutshell 353 (3d ed. 1995). cost, insurance, and freight. A mercantile-contract term allocating the rights and duties of the buyer and the seller of goods with respect to delivery, payment, and risk ofloss, whereby the seller must (1) clear the goods for export, (2) arrange for transportation by water, (3) procure insurance against the buyer's risk of damage during carriage, and (4) pay the costs of shipping to the port ofdestination. -The seller's delivery is complete (and the risk ofloss passes to the buyer) when the goods are loaded on the receiving ship while docked in the port of shipment. This term is used only when goods are transported by sea or inland waterway. -Abbr. ClF. Cf. COST AND FREIGHT; FREE ON BOARD. [Cases: Sales ~77(2).1 "'C.Lf.' is a mercantile symbol that is commonly used in international sales contracts. It is defined by section 2-320 of the UCC and by the Incoterms 1953 and the Revised American Foreign Trade Definitions 1941. Under all of these definitions the letters 'c.iJ.' mean that the price covers the cost of the goods, the cost of insuring them for the benefit of the order of the buyer, and the cost of carrying\ them to the named pOint, al most always the des tination. like the other mercantile symbols, the meaning of 'C.I.F.' may be varied by agreement." William D. Hawkland, Uniform Commercial Code Series 2320:01 (1984). elFdestination. A contractual term denoting that the price includes in a lump sum the cost of the goods and the insurance and freight to the named destina tion. Also termed ClFplace ofdestination. [Cases: Sales~77(2).] cost justification. (1938) Under the Robinson-Patman Act, an affirmative defense against a charge of price discrimination dependent on the seller's showing that it incurs lower costs in serving those customers who are paying less. 15 USCA 13(a). cost-of-capital method. A means of measuring a utility's cost of acquiring debt and equity capital. -Regulatory commissions often use this method to determine a fair rate of return for the utility's investors. [Cases: Gas 14.4(10); Public Utilities ~129.] cost ofcarrying. See carrying cost under COST (1). cost of completion. See COST (1). cost-of-living adjustment. An automatic increase or decrease in the amount of money, usu. support or maintenance, to be paid by one party to another, the adjustment being tied to the cost-of-Iiving-adjustment figures maintained and updated by the federal govern ment. Abbr. COLA. cost-of-living clause. (1953) A provision (as in a contract or lease) that gives an automatic wage, rent, or benefit increase tied in some way to cost-of-living rises in the economy. - A cost-oC-living clause may also cover a decrease, though this is rare. See INFLATION. [Cases: Landlord and Tenant ~200.7.] 400 cost-of-living index cost-of-living index. See CONSUMER PRICE INDEX. cost-plus contract. See CONTRACT. cost-push inflation. See INFLATION. costs de incremento. See COSTS OF INCREASE. costs of collection. (1833) Expenses incurred in receiv ing payment of a note; esp., attorney's fees incurred in the effort to collect a note. [Cases: Bills and Notes (>534.J costs ofincrease. Costs ofcourt awarded in addition to what a jury awards. Juries usu. awarded the success ful party only a small sum for costs. A party wishing to recoup the additional costs had to file an affidavit of increase setting forth what further costs were incurred by taking the matter through trial. -Also termed costs de incremento. See affidavit ofincrease under AFFIDA VIT. [Cases: Costs (>66; Federal Civil Procedure (> 2721-2748.J costs ofthe day. See COST (3). costs to abide event. See COST (3). cosurety. A surety who shares the cost of perform ing suretyship obligations with another. See SURETY. [Cases: Principal and Surety (>62, 191-200.J cosuretyship. The relation between two or more sureties who are bound to answer for the same duty of the principal, and who are jointly responsible for any loss resulting from the principal's default. cotarius (k;l-tair-ee-~s). [Law Latin] Hist. A socage tenure serf who holds land by paying rent and provid ing some personal services to the lord . Both cotarius and coterellus serfs were also known as cottagers. Cf. COTERELLUS. cotenancy. See TENANCY. coterellus (kot-~-rel-~s). [Law LatinJ Hist. A serf who inhabits a cottage; a servile tenant whose person, issue, and goods are at the disposal of the lord. -Also spelled coterell. Cf. COTARIUS. "Coterellus .... A cottager. Considered by Spelman and others, the same with cotarius. But Cowell makes the dis tinction that the cotarius had free socage tenure, and paid a stated firm (rent) in provisions or money, with some occa sional customary service; whereas the coterellus seemed to have held in mere Villenage, and had his person and issue and goods disposed at the pleasure of the lord." 1 Alexander M. Burrill, A Law Dictionary and Glossary 387 (2d ed. 1867). coterminous (koh-t~r-m~-n~s), adj. (18c) 1. (Of ideas or events) coextensive in time or meaning <Judge Smith's tenure was coterminous with Judge Jasper's>. 2. CON TERMINOUS (1). cotland (kot-l~nd). Hist. Land held by a cottager, whether in socage or villeinage tenure. cotortfeasor (koh-tort-fee-z~r). One who, together with another, has committed a tort. See TORTFEASOR. [Cases: Torts (>134.] cotrustee. One of two or more persons in whom the administration of a trust is vested . The cotrustees form a collective trustee and exercise their powers jointly. -Also termed joint trustee. See TRUSTEE. [Cases: Trusts (>238.J cotset (kot-set). Hist. A villein who provides labor to a lord in exchange for a cottage and plot ofland. -Also termed cotsetus. cottier (kot-ee-~r). 1. Hist. A serf who lives in a cottage; a cottager. Over time, cottier has come to refer to a day laborer or a rural dweller. 2. Hist. Irish law. A tenant who leases a house and a small (usu. two acre or less) plot ofland. couchant and levant (kow-ch~nt / lev-~nt), adj. See LEVANT AND COUCHANT. council. (12c) 1. A deliberative assembly <the U.N. Security Council>. common council. 1. In some cities, the lower branch of a city council. [Cases: Municipal Corporations (>82.] 2. In some cities, the city's governing board. [Cases: Municipal Corporations (>80.J general council. A body ofelected persons who repre sent all the citizens of a territory or members of an organization. select council. In some cities, the upper branch of a city council. 2. An administrative or executive body <a parish council>. councillor. See COUNCILOR. Council of Economic Advisers. A three-member council in the Executive Office ofthe President respon sible for analyzing the national economy and advising the President on economic matters . Created by the Employment Act of 1946, it now functions under Reorganization Plan No.9 of 1953. Its members are appointed by the President with the advice and consent of the Senate. -Abbr. CEA. Council of the North. Hist. A body used by the Tudors to administer the northern parts of England (esp. Yorkshire) during the 16th and 17th centuries . The council probably predated the Tudors, but Henry VIII revived it. In addition to enforcing Crown policy in the northern territories, the appointees (many of whom were lawyers) exercised wide criminal and civil juris diction. The Council disbanded ca. 1640. Council on Environmental Quality. A three-member council in the Executive Office ofthe President respon sible for developing and recommending national policy on environmental quality . The council was created by the National Environmental Policy Act of 1969. Its members are appointed by the President with the advice and consent of the Senate. 42 USCA 4321 et seq. & 4371 et seq. -Abbr. CEQ. [Cases: Environ mental Law (>571.J councilor, n. (i5c) A person who serves on a council, esp. at the local level. -Also spelled councillor. -council lorship, n. counsel, n. (13c) 1. Advice or assistance <the lawyer's counsel was to petition immediately for a change of immigration status>. 2. One or more lawyers who rep resent a client <the client acted on advice ofcounsel>. In the singular, also termed counselor; counselor-at-law. I Cf. ATTORNEY; LAWYER. 3. English law. A member of . the bar; BARRISTER. advisory counsel.!. An attorney retained merely to give advice on a particular matter, as distinguished from one (such as trial counsel) actively participating in a case. 2. See standby counsel. appellate counsel. (1921) A lawyer who represents a party on appeal. The term is often used in contrast with trial counsel. appointed counsel. See assigned counsel. assigned counsel. (17c) An attorney appointed by the court to represent a person, usu. an indigent person. Also termed court-appointed attorney; court-appointed counsel; appointed counsel; appointed counsel.lCases: Criminal LawC=>1773; Federal Civil Procedure C:=:'1951; Trial~21.] corporate counsel. An in-house attorney for a corpora tion. Cf. in-house counsel. corporation counsel. A city attorney in an incorporated municipality. See CITY ATTORNEY. [Cases: Municipal Corporations C=-}214(3).] counsel of record. See attorney of record under ATTORNEY. court-appointed counsel. See aSSigned counsel. Cum;s counsel. An independent attorney hired by a defendant in a lawsuit in which the damages may be covered by the defendant's insurer but a conflict of interest between the defendant and the insurer makes it unreasonable for an attorney selected by the insurer to represent the defendant . The term derives from San Diego Federal Credit Union v. Cumis Ins. Society, Inc., 162 CaL App. 3d 358 (1984), in which the concept was first clearly articulated. [Cases: Attorney and Client C:::. 21.5(5); Insurance <>2929.] general counsel. (1848) 1. A lawyer or law firm that represents a client in all or most of the client's legal matters, but that sometimes refers extraordinary matters such as litigation and intellectual-property cases to other lawyers. 2. The most senior lawyer in a corporation's legal department, usu. also a COf porate officer. house counsel. See in-house counsel. independent counsel. (1920) An attorney hired to provide an unbiased opinion about a case or to conduct an impartial investigation; esp., an attorney appointed by a governmental branch or agency to investigate alleged misconduct within that branch or agency. See special prosecutor under PROSECUTOR. Cf. special counsel. [Cases: United States C:::.:>40.] in-house counsel. (1974) One or more lawyers employed by a company. -Also termed house counsel; (when employed by a corporation) corporate counsel. Cf. cor porate counsel. junior counsel. 1.1he younger or lower-ranking of two or more attorneys employed on the same side of a case, esp. someone charged with the less important aspects of the case. 2. English law. The barrister who assists Queen's CounseL King's Counsel. See KING'S COU:-ISEL. lead counsel. (1956) 1. The more highly ranked lawyer iftwo or more are retained; the lawyer who manages or controls the case or cases, esp. in class actions or multidistrict litigation. -Also termed senior counsel; attorney in charge. 2. QUEEN'S COUNSEL; KING'S COUNSEL. -Also termed leading counsel. local counsel. One or more lawyers who practice in a particular jurisdiction and are retained by non resident counsel to help prepare and try a case or to complete a transaction in accordance with that juris diction's law, rules, and customs. ofcounsel. 1.

complete a transaction in accordance with that juris diction's law, rules, and customs. ofcounsel. 1. A lawyer employed by a party in a case; esp., one who although not the principal attorney of record is employed to assist in the preparation or management of the case or in its presentation on appeaL 2. A lawyer who is affiliated with a law firm, though not as a member, partner, or associate. Queen's Counsel. See QUEEN'S COUNSEL. senior counsel. 1. See lead counsel. 2. See KING'S COUNSEL; QUEEN'S COUNSEL. settlement counsel. See CIRCUIT MEDIATOR. special counsel. (1854) An attorney employed by the state or a political subdivision to assist in a particu lar case when the public interest so requires. Also termed special attorney. Cf. independent counsel. [Cases: Attorney General C:=:'2.] standby counsel. An attorney who is appointed to be prepared to represent a pro se criminal defendant if the defendant's self-representation ends . The standby counsel may also provide some advice and guidance to the defendant during the self-repre sentation. Also termed advisory counsel. [Cases: Criminal LawC=1834.] trial counsel. (1928) 1. A lawyer who represents a party at trial. The term is often used in contrast with appellate counsel. 2. Military law. The person who prosecutes a case on the government's behalf. counsel, assistance of. See ASSISTANCE OF COUNSEL. counsel, right to. See RIGHT TO COUNSEL. counsel and procure. See AID AND ABET. counselor. See COUNSEL (2). counselor-at-law. See COUNSEL (2). count, n. (l4c) Procedure. 1. The part of an indict ment charging the suspect with a distinct offense. 2. In a complaint or similar pleading, the statement of a distinct claim. Cf. DECLARATION (7). [Cases: Federal Civil Procedure Pleading C=>53.] "This word ... is in our old law-books used synonymously with declaration .... But when the suit embraces two or more causes of action (each of which of course requires a 402 count different statement), or when the plaintiff makes two or more different statements of one and the same cause of action, each several statement is called a count, and all of them, collectively, constitute the declaration." 1 John Bouvier, A Law Dictionary 245 (1839). common count. IIist. In a plaintiff's pleading in an action for debt, boilerplate language that is not founded on the circumstances ofthe individual case but is intended to guard against a possible variance and to enable the plaintiff to take advantage of any ground ofliability that the proofmay disclose. In the action for indebitatus assumpsit, the common count stated that the defendant had failed to pay a debt as' promised. See indebitatus assumpsit under ASSUMPSIT. general count. A count that states the plaintiffs claim without undue particularity. money count. Rist. A count, usu. founded on a simple contract, giving rise to a claim for payment of money. "Simple contracts, express or implied, resulting in mere debts. are of so frequent occurrence as causes of action, that certain concise forms of counts were devised for suing upon them. These are called the 'indebitatus' or 'money counts.'" 2 Stewart Rapalje & Robert L. lawrence, A Dierion ayy ofAmeriCCln and English Law 833 (1883). multiple counts. (1941) Several separate causes ofaction or charged offenses contained in a single pleading or indictment. [Cases: Indictment and Information ~ 125, 126; Pleading omnibus count (ahm-ni-b<Js). A count that combines into one count all money claims, claims for goods sold and delivered, claims for work and labor, and claims for an account stated. separate count. (18c) One of two or more criminal charges contained in one indictment, each charge constituting a separate indictment for which the accused may be tried. [Cases: Indictment and Infor mation ~97.] several count. One oftwo or more counts in a pleading, each ofwhich states a different cause ofaction. [Cases: Pleading 53.] special count. (18c) A section ofa pleading in which the plaintiff's claim is stated with great particularity llSU. employed only when the pleading rules require specificity. [Cases: Pleading ~18, 50.] 3. A canvassing. See CANVASS (2).4. Hist. The plain tiff's declaration, or initial pleading, in a real action. See DECLARATION (7). 5. Patents. The part ofa patent application that defines the subject matter in a priority contest (I.e., an interference) between two or more appli cations or between one or more applications and one or more patents. See INTERFERENCE (3). ICases: Patents (;:::lO6(2).] count, vb. (l7c) 1. In pleading, to declare or state; to narrate the facts that state a claim. 2. Rist. To plead orally; to plead or argue a case in court. counted vote. See VOTE (4). counter. Hist. An advocate or professional pleader; one who counts (Le., orally recites) for a client. Counters had coalesced into an identifiable group practicing before the Common Bench by the beginning ofthe 13th century. They were the leaders of the medieval legal profession, and over time came to be known as serjeants at law. -Also spelled countor; contor; counteur. See SERJEANT-AT-LAW. counteraction. See COUNTERCLAIM. counteraffidavit. See AFFIDAVIT. counterbond. See BOND (2). counterclaim, n. (18c) A claim for relief asserted against an opposing party after an original claim has been made; esp., a defendant's claim in opposition to or as a setoff against the plaintiff's claim. -Also termed counteraction; countersuit; cross-demand. Cf. CROSS CLAIM. [Cases: Federal Civil Procedure ~775-784; Pleading ~138; Set-off and Counterclaim counterclaim, vb. counterdaimant, n. "Under [Fed. R. Civ. P.] Rule 13 the court has broad discre tion to allow claims to be joined in order to expedite the resolution of all controversies between the parties in one suit. Rule 13(c) specifically provides that the counterclaim ant is not limited by recovery sought by the opposing party but may claim relief in excess of that amount. Further, the general legal rule is that it is immaterial whether a counterclaim is legal or equitable for purposes of determin ing whether it properly is brought under Rule 13.... The expectation is that this liberal joinder policy will further the elimination of circuity of action and multiple litigation." 6 Charles Alan Wright et aI., FedeYCII PYClctice and Procedure 1403, at 15-16 (2d ed. 1990). compulsory counterclaim. (1938) A counterclaim that must be asserted to be cognizable, usu. because it relates to the opposing party's claim and arises out of the same subject matter.Ifa defendant fails to assert a compulsory counterclaim in the original action, that claim may not be brought in a later, separate action (with some exceptions). See Fed. R. Civ_ P. 13(a). [Cases: Federal Civil Procedure C-'--::;775; Judgment (;:::585(4); Set-off and Counterclaim] ~60.1 permissive counterclaim. (I924) A counterclaim that need not be asserted to be cognizable, usu. because itdoes not arise out ofthe same subject matter as the opposing party's claim or involves third parties over which the court does not have jurisdiction . Permis sive counterclaims may be broughtin a later, separate action. See Fed. R. Civ. P. 13(b). counter-complaint. See COMPLAINT. counterdeed. See DEED. counterfeisance (kown-t<Jr-fee-z<Jnts). Archaic. The act ofcounterfeiting. counterfeit, vb. (l4c) To unlawfully forge, copy, or imitate an item, esp. money or a negotiable instru ment (such as a security or promissory note) or other officially issued item ofvalue (such as a postage stamp or a food stamp), or to possess such an item without authorization and with the intent to deceive or defraud by presenting the item as genuine. Counterfeiting includes producing or selling an item that displays a 403 reproduction of a genuine trademark, usu. to deceive buyers into thinking they are purchasing genuine mer chandise. See 18 USCA 470 et seq. [Cases: Counter feiting Trademarks ~1432.] -counterfeiting, n. -counterfeit, n. -counterfeit, adj. "Literally a counterfeit is an imitation intended to pass for an original. Hence it is spurious or false, and to counterfeit is to make false. For this reason the verbs counterfeit and forge are often employed as synonyms and the same is true to some extent of the corresponding nouns. No error is involved in this usage but it is important to distinguish between the words as far as possible when used as the labels of criminal offenses, In the most restricted sense, [c]ounterfeiting is the unlawful making of false money in the simiJitude of the genuine, At one time under English statutes it was made treason. Under modern statutes it is a felony," Rollin M. Perkins & Ronald N. Boyce, Criminal Law 431-32 (3d ed, 1982), Counterfeit Access Device and Computer Fraud and Abuse Act of 1984. A federal statute that criminalizes various computer-related activities such as accessing without permission a computer system belonging to a bank or the federal government, or using that access to improperly obtain anything of value. 18 USCA 1030. [Cases: Telecommunications <>:;:; 1342, 1348.] counterfeiter. A person who forges or otherwise makes a copy or an unauthorized imitation of something (esp. a document, currency, or another's Signature) with the intent to deceive or defraud. counterfeiting, n. The unlawful forgery, copying, or imi tation of an item, esp. money or a negotiable instru ment (such as a security or promissory note) or other officially issued item of value (such as a postage stamp), or the unauthorized possession of such an item, with the intent to deceive or defraud by claiming or passing the item as genuine. See 18 USCA 470 et seq. [Cases: Counterfeiting . -counterfeit, vb. counter feit, n. -counterfeit, adj. counterfeit mark. See counterfeit trademark under TRADEMARK. counterfeit recording. Copyright. An unauthorized copy ofa copyright-protected recording's sounds, artwork, label, trademark, or packaging. -Also termed bootleg recording. [Cases: Copyrights and Intellectual Property counterfeit trademark. See TRADEMARK. counterfoit (kown-t~r-foyl), n. A detachable part of a writing on which the particulars of the main part are summarized . The most common example is a check stub, on which the date, the payee, and the amount are typically noted. counterletter. Civil law. A document in which the parties to a simulated contract record their true intentions. La. Civ. Code art. 2025 . For example, the record owner of real property may acknowledge in a counterletter that another person actually owns the property; the counterletter may then be used when the property is to be reconveyed after a period. A counterletter can have no effect against a third party acting in good faith. See simulated contract under CONTRACT. countez countermand (kown-t~r-mand), n. (16c) 1. A contradic tory command that overrides or annuls a previous one. 2. An action that has the effect of voiding something previously ordered; a revocation. -countermand (kown-t~r-mand or kown-), vb. counteroffer, n. (I8c) Contracts. An offeree's new offer that varies the terms ofthe original offer and that ordi narily rejects and terminates the original offer . A late or defective acceptance is considered a counteroffer. See MIRROR-IMAGE RULE. [Cases: Contracts counteroffer, vb. counterofferor, n. counterpart. (l5c) 1. In conveyancing, a correspond ing part of an instrument <the other half ofthe inden ture the counterpart -could not be found>. 2. One oftwo or more copies or duplicates of a legal instrument <this lease may be executed in any number ofcounter parts, each of which is considered an original>. "Formerly 'part' was used as the opposite of 'counterpart,' in respect to covenants executed in duplicate, but now each copy is called a 'counterpart.'" 2 Stewart Rapalje & Robert L. Lawrence, A Dictionary ofAmerican and English law 927 (1883), "Counterparts are not nowadays written on the same parchment, but that which is executed by the grantor of an interest is called the 'original,' while that which is executed by the party to whom the interest passes for example, a lessee is called the 'counterpart.'" G.c. Cheshire, Modern Law of Real Property 674 (3d ed. 1933). counterpart writ. See WRIT. counterpromise, n. (l8c) A promise made in exchange for another party's promise <a promise supported by a counterpromise is binding in its inception>. See bilat eral contract under CONTRACT. [Cases: Contracts 55.]-

is binding in its inception>. See bilat eral contract under CONTRACT. [Cases: Contracts 55.]-counterpromise, vb. counter-roll. Hist. A record kept by an officer as a check on another officer's record, esp. the rolls maintained by a sheriff and a coroner. countersign, vb. (l6c) To write one's own name next to someone else's to verify the other signer's identity. [Cases: Signatures -countersignature, n. countersuit. See COl.iNTERCLAIM. countertrade. A type of international trade in which purchases made by an importing nation are linked to offsetting purchases made by the exporting nation. "Countertrade is barter in modern clothes. It developed rapidly as a form of doing business with the USSR and Eastern European nations in the 1970s and 19805, before the major economic and political reforms tended to diminish its emphasis as a means of doing business," Ralph H. Folsom & Michael W. Gordon, International Business Transactions 2,1, at 46 (1995). countervailable subsidy. See SUBSIDY. countervailing duty. See DUTY (4). countervailing equity. See EQUITY. counter will. See mutual will under WILL. counteur. See COUNTER. countez (kawn-teez). [Law French] Hist. A direction given by a clerk of a court to a crier, after a jury was sworn, to count the jury members. 404 Counting House of the King's Household "Of this ignorance we may see daily instances, in the abuse of two legal terms of ancient French; one, the prologue to all proclamations, 'oyez, or hear ye,' which is generally pronounced most unmeaningly, '0 yes:' the other, a more pardonable mistake, viz., when ajury are all sworn, the officer bids the crier number them, for which the word in law-french is, 'countez;' but we now hear it pronounced in very good English, 'count these.'" 4 William Blackstone, Commentaries on the Laws ofEngland 334 n.S (1769). Counting House of the King's Household. See BOARD OF GREEN CLOTH. countor. See COUNTER. country. 1. A nation or political state; STATE (1). 2. The territory ofsuch a nation or state. county. (14c) The largest territorial division for local gov ernment within a state, generally considered to be a political subdivision and a quasi-corporation . Every county exists as a result ofa sovereign act oflegislation, either constitutional or statutory, separating it from the rest of the state as an integral part of its territory and establishing it as one of the primary divisions of the state for purposes ofcivil administration. -Abbr. co. [Cases: Counties C=::' 1.] "A county is a part of the realm, inti rely governed by one sheriff under the king, but all subject to the general govern ment of the realm; and therefore every county is as it were an intire body of itself, so that upon a feoffment of lands in many towns in one county, livery of seisin made in one parcel in anyone of the towns in the name of all, sufficeth for all the lands in all the other towns within the same county: but upon a feoffment of lands in divers counties, there must be livery of seisin in every county." Sir Henry Finch, Law, or a Discourse Thereof 79 (1759). foreign county. Any county separate from that of a county where matters arising in the former county are called into question, though both may lie within the same state or country. county agent. See juvenile officer under OFFICER (1). county attorney. An attorney who represents a county in civil matters and, in some jurisdictions, prosecutes criminal offenders. county auditor. See AUDITOR. county bond. See BOND (3). county commissioner. See COMMISSIONER. county court. See COURT. county judge. See JUDGE. county officer. See OFFICER (1). county palatine (pal-~-trn or -tin). Hist. A county in which the lord held certain royal privileges, such as the right to pardon a felon or to have indictments recite that offenses were committed against the lord's -rather than the king's -peace. In England, there were three such counties: Chester, Durham, and Lancaster. The separate legal systems in these counties were slowly eliminated; the last vestiges of a separate system were abolished by the Courts Act (1971). Cf. proprietary gov ernment under GOVERNMENT. "The counties palatine were Chester, Durham, and Lan caster. Whatever may be the precise date at which these counties became 'Palatine,' it seems likely that there was in Saxon times a jurisdiction equivalent to that of the Palatine earl, and originating in usurpation and necessity. The Central Government was too far away both before and after the Conquest to control effectually the administration of the Marches, which were always turbulent and lawless districts." A.T. Carter, A History ofEnglish Legal Institutions 192 (4th ed. 1910). county property. Property that a county is authorized to acquire, hold, or sell. [Cases: Counties C=::' 103.] county purpose. An objective pursued by a county; esp., one that a county levies taxes for. [Cases: Counties C=::' 190.1.] county seat. The municipality where a county's principal offices are located. -Also termed county town. [Cases: Counties C=::'25.] county supervisor. See county commissioner under COM MISSIONER. county town. See COUNTY SEAT. county warrant. See WARRANT (3). coup d'etat (koo day-tah). [French "stroke of state"] A sudden, usu. violent, change of government through seizure of power. coupon (koo-pon). An interest or dividend certificate that is attached to another instrument, such as a bond, and that may be detached and separately presented for payment of a definite sum at a specified time. -Also termed interest coupon. coupon bond. See BOND (3). coupon interest rate. See coupon rate under INTEREST RATE. coupon note. See NOTE (1). coupon rate. See INTEREST RATE. coupon security. See SECURITY. coupon yield. See YIELD. Cour de Cassation. See COURT OF CASSATION. courier. A messenger, esp. one who delivers parcels, packages, and the like . In international law, the term denotes a messenger duly authorized by a sending state to deliver a diplomatic pouch. course ofbusiness. (17c) The normal routine in managing a trade or business. -Also termed ordinary course of business; regular course ofbusiness; ordinary course; regular course. [Cases: Customs and Usages C=::'9.] course of dealing. (16c) An established pattern of conduct between parties in a series of transactions (e.g., multiple sales ofgoods over a period of years). Ifa dispute arises, the parties' course ofdealing can be used as evidence ofhow they intended to carry out the transaction. Cf. COURSE OF PERFORMANCE; trade usage under USAGE. [Cases: Contracts C=::' 170.] "A course of dealing is distinguishable from a course of performance. As defined by the [UCC], 'course of dealing' relates to conduct under other transactions which occurred with regularity prior to the formation of the present contract, while 'course of performance' relates to the conduct of the parties under the contract in question subsequent to its formation. However, in meaning the two expressions are essentially equivalent." Ronald A. Anderson, Uniform Commercial Code 1-205:86 (1997). course of employment. (I7c) Events that occur or cir cumstances that exist as a part of one's employment; esp., the time during which an employee furthers an employer's goals through employer-mandated direc tives. Cf. SCOPE OF EMPLOYMENT; ZONE OF EMPLOY MENT. course of performance. (l8c) A sequence of previous performance by either party after an agreement has been entered into, when a contract involves repeated occasions for performance and both parties know the nature of the performance and have an opportunity to object to it . A course of performance accepted or acquiesced in without objection is relevant to deter mining the meaning of the agreement. Cf. COURSE OF DEALING; trade usage under USAGE. [Cases: Contracts (::::J170.] "[(lommon law courts have recognized the necessity of learning how people usually talk and what they usually mean by their language before one interprets their con tracts.... '[Clourse of performance' refers to a pattern of performance of the contract that is the subject of the dispute, as contrasted to 'course of dealing' which refers to the pattern of performance in prior contracts between the same parties." Claude Rohwer & Gordon D. Schaber, Contracts in a Nutshell 171-73 (4th ed. 1997). ''The phrase 'course of performance' relates to the way the parties have acted in performance of the particular contract in question. The judicial inquiry on this point is limited to the way the parties have acted in carrying out the particular contract that is in controversy, as distinguished from a general pattern of dealing that may embrace many other contracts or transactions between the parties." Ronald A. Anderson, Uniform Commercial Code 1-205:74 (1997). course oftrade. See trade usage under USAGE. court, n. (12c) 1. A governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice <a question oflaw for the court to decide>. "A court ... is a permanently organized body, with inde pendent judicial powers defined by law, meeting at a time and place fixed by law for the judicial public administration ofjustice." 1 Williamj. Hughes, Federal Practice, Jurisdiction & Procedure 7, at 8 (1931). 2. "The judge or judges who sit on such a governmen tal body <the court asked the parties to approach the bench>. 3. A legislative assembly <in Massachusetts, the General Court is the legislature>. 4. The locale for a legal proceeding <an out-of-court statement>. 5. The building where the judge or judges convene to adjudi cate disputes and administer justice <the lawyers agreed to meet at the court at 8:00 a.m.>. -Also termed (in sense 5) courthouse. admiralty court. See ADMIRALTY (1). appeals court. See appellate court. appellate court. (18c) A court with jurisdiction to review decisions of lower courts or administrative agencies. -Also termed appeals court; appeal court; court of appeals; court of appeal; court of review. [Cases: Courts C='203-254.J "Appellate courts are among the most important institu tions of governance in the United States. Through their review of trial court and administrative agency decisions they ensure that those bodies function lawfully and that litigants receive justice under law. Moreover, they provide authoritative interpretations of statutory and constitu tional provisions and control the shaping of the common law in response to ever-changing circumstances; they are thus major sources of law." Daniel John Meador & Jordana Simone Bernstein, Appellate Courts in the United States v (1994). Archdeacon's court. See COURT OF ARCHDEACON. Article I Court. See legislative court. Article III Court. See ARTICLE III COURT. Bail Court. See BAIL COURT. Bankruptcy Court. See BANKRUPTCY COURT. baronial court. Hist. A feudal court established by the owner of extensive lands held directly of the king under military tenure. base court. Archaic. An inferior court. basement court. See BASEMENT COURT. bishop'S court. See BISHOP'S COURT. borough court. See BOROUGH COURT. business court. (1914) A court that handles exclusively commercial litigation. _ In the late 20th century, business courts emerged as a way to unclog the general dockets and to dispose of commercial cases more efficiently and consistently. Also termed com mercial court; commercial division. byrlaw court. See BYRLAW COURT. Central Criminal Court. See CENTRAL CRIMINAL COURT. children's court. See juvenile court (1). church court. See ecclesiastical court. circuit court. (17c) I. A court usu. having jurisdiction over several counties, districts, or states, and holding sessions in all those areas. See CIRCUIT; CIRCUIT-RID ING. 2. UNITED STATES COURT OF APPEALS. city court. See municipal court. civil court. (16c) A court with jurisdiction over non criminal cases. -Abbr. Civ. Ct. claims court. See court ofclaims. closed court. See CLOSED COURT. Commerce Court. Rist. A federal court that had the power to review and enforce determinations of the Interstate Commerce Commission . The Commerce Court existed from 1910 to 1913. commercial court. 1. See business court. 2. English law. A court that hears business disputes under simpli fied procedures designed to expedite the trials . This court was created in 1971 as part of the Queen's Bench Division ofthe High Court of Justice. commissary court. 1. A court of general ecclesiasti cal jurisdiction presided over by four commission ers appointed by the Crown from the Faculty of 406 court Advocates. 2. Scots law. A sheriff or county court that appoints and confirms the executors ofdecedents who have personal property in Scotland. 3. Hist. Scots law.

appoints and confirms the executors ofdecedents who have personal property in Scotland. 3. Hist. Scots law. A supreme court in which matters ofprobate and divorce were decided . This court was established in Edinburgh in 1563 to hear cases that had previ ously come under the jurisdiction ofthe ecclesiastical commissary court. It was absorbed by the Court of Session in 1836. commissioner's court. In certain states, a court having jurisdiction over county affairs and often function ing more as a managerial group than as a judicial tribunal. common pleas court. See COURT OF COMMON PLEAS. commonwealth court. 1. In some states, a court of general jurisdiction. [Cases: Courts (:::::> 118.] 2. In Pennsylvania, a court that hears suits against the state and reviews decisions of state agencies and officials. [Cases: Courts (:::::>242(1).] competent court. See court ofcompetent jurisdiction. conciliation court. See small-claims court. consistory court. See CONSISTORY COURT. constitutional court. (1823) 1. A court named or described and expressly protected in a constitution; esp., ARTICLE III COURT. 2. A court whose jurisdic tion is solely or primarily over claims that legislation (and sometimes executive action) is inconsistent with a nation's constitution . Germany, for example, has state constitutional courts and a Federal Constitu tional Court. consular court (kon-sd-ldr). A court held by the consul of one country within the territory of another. Consular courts are created by treaty, and their jurisdiction is usu. limited to civil cases. The last of the U.S. consular courts (Morocco) was abolished in 1956. [Cases: Ambassadors and Consuls (:::::>6.] coroner's court. English law. A common-law court that holds an inquisition if a person died a violent or unnatural death, died in prison, or died suddenly when the cause is not known. The court also has jurisdiction over treasure trove. corporation court. In some jurisdictions, a court that serves an incorporated municipality. See municipal court. county court. (16c) 1. A court with powers and jurisdic tion dictated by a state constitution or statute . The county court may govern administrative or judicial matters, depending on state law. -Also termed parish court; (in Latin) curia comitatus. [Cases: Counties 38; Courts (:::::> 182.] 2. See probate court. court above. (l7c) A courtto which a case is appealed. Also termed higher court; upper court. court a quo (ay kwoh). A court from which a case has been removed or appealed. court below. (17c) A trial court or intermediate appel late court from which a case is appealed. -Also termed lower court. court christian. See ecclesiastical court. court de facto. See de facto court. court merchant. Hist. A court of limited jurisdiction that decided controversies arising between merchants, dealers, shipmasters, supercargoes, and other, usu. transient, people connected with trade . Cases were usu. tried before a jury of merchants. court not of record. An inferior court that is not required to routinely make a record ofeach proceed ing and usu. does not. [Cases: Courts (:::::>49.] court ofappeals. (17c) 1. An intermediate appellate court. -Also termed (as in California and England) court ofappeal. See appellate court. 2. In New York and Maryland, the highest appellate court within the jurisdiction. [Cases: Courts (:::::>226, 237(1).] court ofchivalry. See HIGH COURT OF CHIVALRY. court ofclaims. A court with the authority to hear claims made against a state (or its political subdivi sion) for cases in which the state has waived sovereign immunity. -Also termed claims court. See UNITED STATES COURT OF FEDERAL CLAIMS. [Cases: States (:::::> 184.] court ofcompetent jurisdiction. A court that has the power and authority to do a particular act; one rec ognized by law as possessing the right to adjudicate a controversy. -Also termed competent court. court ofdomestic relations. See family court. court ofequity. (16c) A court that (1) has jurisdiction in equity, (2) administers and decides controversies in accordance with the rules, principles, and precedents ofequity, and (3) follows the forms and procedures of chancery. Cf. court oflaw. [Cases: Courts (:::::>42(7).] court offinal appeal. 1. See court of last resort. 2. Eccles. law. (cap.) JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. court offirst instance. See trial court. court ofgeneral jurisdiction. (18c) A court having unlimited or nearly unlimited trial jurisdiction in both civil and criminal cases. -Also termed general jurisdiction court. [Cases: Courts (:::::> 117.5-158.1.] court ofimpeachment. See COURT FOR THE TRIAL OF IMPEACHMENTS. court of inquiry. 1. Hist. In English law, a court appointed by the monarch to ascertain whether it was proper to use extreme measures against someone who had been court-martialed. 2. Hist. In American law, an agency created under articles of war and vested with the power to investigate the nature ofa transac tion or accusation of an officer or soldier. 3. In some jurisdictions, a procedure that allows a magistrate to examine witnesses in relation to any offense that the magistrate has a good-faith reason to believe was committed. 407 court ofinstance. See trial court. court oflast resort. (17c) The court having the authority to handle the final appeal of a case, such as the U.S. Supreme Court. court oflaw. (16c) 1. Broadly, any judicial tribunal that administers the laws of a state or nation. 2. A court that proceeds according to the course of the common law, and that is governed by its rules and principles. Cf. court ofequity. court oflimited jurisdiction. A court with jurisdiction over only certain types ofcases, or cases in which the amount in controversy is limited. [Cases: Courts ~ 159-19il court ofordinary. See probate court. court oforiginal jurisdiction. (I8c) A court where an action is initiated and first heard. [Cases; Courts 117.5-15S.1,206.] court ofrecord. (ISc) 1. A court that is required to keep a record of its proceedings . The court's records are presumed accurate and cannot be collaterally impeached. See OF RECORD (2). [Cases; Courts (;:::::< 48.] "The distinction that we still draw between 'courts of record' and courts that are 'not of record' takes us back to early times when the king asserts that his own word as all that has taken place in his presence is incontestable. This privilege he communicates to his own special court; its testimony as to ali that is done before it is concluSive. If any question arises as to what happened on a previous occasion, the justices decide this by recording or bearing record (recordantur, portant recordum). Other courts ... may and, upon occasion, must bear record; but their records are not irrefragable .... We easily slip into saying that a court whose record is incontrovertible is a court which has record (habet recordum) or is a court of record, while a court whose record may be disputed has no record (non habet recordum) and is no court of record." 2 Freder ick Pollock & Frederic William Maitland, History ofEnglish Law Before the Time of Edward 1669 (2d ed. 1899). 2. A court that may fine and imprison people for contempt. "A court of record is, strictly speaking, a court which has power to fine and imprison." Lancelot Feilding Everest, Everest and Strode's Law ofEstoppel 13 (1923). court ofreview. See appellate court. court ofspecial jurisdiction. See limited court. court ofspecial session. (1813) A court that has no stated term and is not continuous, but is organized only for hearing a particular case. [Cases: Courts (;:::::) 64.] court of summary jurisdiction. See magistrate's court. criminal court. A court with jurisdiction over criminal matters. Crown Court. See CROWN COURT. Dean ofGuild Court. See DEAN OF GUILD COURT. de facto court (di fak-toh). 1. A court functioning under the authority of a statute that is later adjudged to be invalid. -Also termed court defacto. [Cases: Courts court ~59.l2. A court established and acting under the authority of a de facto government. dependency court. A court having jurisdiction over matters involving abused and neglected children, foster care, the termination of parental rights, and (sometimes) adoption. diocesan court (dI-ahs-i-sin). Eccles. law. A court exer cising general or limited jurisdiction (as determined by patent, local custom, or legislation) of matters arising within a bishop's diocese . Diocesan courts include the consistorv court, the courts of the com missaries, and the co~rts of archdeacons. district court. (I8c) 1. A trial court having general jurisdiction within its judicial district. Abbr. D.C. [Cases: Courts 191.] 2. Scots law. A local court, usu. staffed by lay magistrates, with jurisdiction over petty crimes. divided court. See DIVIDED COURT. divisional court. An English court made up of two or more judges from the High Court of Justice sitting in special cases that cannot be disposed of by one judge. Each division of the High Court has a divi sional court, e.g., the Divisional Court of the Family Division. With the exception of the Divisional Court of the Chancery Division, which has jurisdiction to review land-registration appeals from the county court, almost all judicial appeals are from decisions of a magistrates' court. The Divisional Court of the Queen's Bench DiVision hears appeals from the Crown Court or the magistrates' court by way ofcase stated in criminal prosecutions, which is the most frequent use ofa divisional court. domestic court. (1801) 1. A court having jurisdiction at the place of a party's residence or domicile. 2. See family court. domestic-relations court. Seefamily court. drug court. A court that hears cases against nonvio lent adults and juveniles, who are often first-time offenders and who are usu. charged with posses sion of a controlled substance or with committing a minor drug-related crime . Drug courts focus on treatment rather than on incarceration. Cf. problem solVing court. [Cases: Chemical Dependents 12; Sentencing and Punishment (:..-::::02051.] ecclesiastical court (i-klee-zee-as-ti-k;:!l). 1. A religiOUS court that hears matters concerning a particular religion. 2. In England, a court having jurisdiction over matters concerning the Church ofEngland (the established church) as well as the duties and rights of the people serving it, but whose modern jurisdiction is limited to matters ofecclesiastical discipline and church property. Also termed church court; court christian; spiritual court; (in Latin) christianitatis curia; curia christianitatis. [Cases: Religious Societ ies 14.] 'The ecclesiastical courts exercised a jurisdiction which played a part of the development of the English legal system, and their work was not confined to controlling the clergy and doctrines of the Church. The jurisdiction of these courts was of particular significance before the Reformation, but, in certain matters and especially in matrimonial causes and the law of succession to property on death (testate and intestate succession), it remained of importance till the middle of the nineteenth century." 1 A.K.R. Kiralfy, Potter's Historica!lntroduction to English Law and Its Institutions 211 (4th ed. 1958). examining court. (ISc) A lower court (usu. preSided over by a magistrate) that determines probable cause and sets bail at a preliminary hearing in a criminal case. family court. (1923) A court having jurisdiction over matters involving divorce, child custody and support, paternity, domestic violence, and other family-law issues. Also termed domestic-relations court; court ofdomestic relations; domestic court. [Cases: Courts <>~)174.] federal court. (ISc) A court having federal jurisdiction, including the u.s. Supreme Court, circuit courts of appeals, district courts, bankruptcy courts, and tax courts. -Also termed United States court. foreign court. (16c) I. The court ofa foreign nation. 2. The court ofanother state. forty-days court. See COURT OF ATTACHMENTS. franchise court. See FRANCHISE COURT. full court. (16c) A court session that is attended by all the court's judges; an en bane court. Also termed full bench. General Court. See GENERAL COURT. general-jurisdiction court. See court ofgeneral juris diction. High Commission Court. See COURT OF HIGH COM MISSION. High Court. 1. See HIGH COURT OF JUSTICE. 2. See HIGH COURT OF JUSTICIARY. High Court ofAdmiralty. See HIGH COURT 01' ADMI RALTY. High Court of Chivalry. See HIGH COUR

HIGH COURT 01' ADMI RALTY. High Court of Chivalry. See HIGH COURT OF CHIVALRY. High CaurtofDelegates. See COURT OF DELEGATES. High Court of Errors and Appeals. See COURT OF ERRORS AND APPEALS. High CaurtafJustice. See HIGH COURT OF JUSTICE. High Court ofJusticiary. See HIGH COURT OF JUSTI CIARY. higher court. See court above. highest caurt. (l6c) The court oflast resort in a particu lar jurisdiction; a court whose decision is final and cannot be appealed because no higher court exists to consider the matter. -The U.S. Supreme Court, for example, is the highest federal court. hot court. (1972) A court, esp. an appellate court, that is familiar with the briefs filed in the case, and there fore with the issues, before oral argument. _ Typi cally, a hot court controls the oral argument with its questioning, as opposed to listening paSSively to set presentations ofcounsel. housing court. A court dealing primarily with land lord-and-tenant matters, including disputes over maintenance, lease terms, and building and fire codes. [Cases: Courts hundred court. Hist. In England, a larger court baron, held for all inhabitants of a particular hundred rather than a manor, in which the free suitors were the judges (jurors) and the steward the register. A hundred court was not a court of record, and it resembled a court-baron in all respects except for its larger territorial jurisdiction. The last hundred court was abolished in 1971. Also termed hundred moot. See COURT BARON. impeachment court. See COURT FOR THE TRIAL OF IMPEACHME:siTS. inferior court. (I7c) I. Any court that is subordinate to the chief appellate tribunal within a judicial system. 2. A court ofspecial, limited, or statutory jurisdiction, whose record must show the existence ofjurisdic tion in any given case to give its ruling presumptive validity. -Also termed lower court. inquisitorial court. A court in which the inquisitorial system prevails. ''We should remember that in the 'inquisitorial court' the roles of prosecutor, defender, and judge are combined in one person or group of persons. It is no accident that such a court commonly holds its sessions in secret. The usual explanation for this is that the methods by which it extracts confessions cannot stand public scrutiny. But the reason runs deeper. The methods employed by an inquisitorial court, even if open to the public, could scarcely be a secret of meaningful observation by an outsider. It is only when the roles of prosecutor, defender, and judge are sepa rated that a process of decision can take on an order and coherence that will make it understandable to an outside audience and convince that audience that all sides of the controversy have been considered." Lon L. Fuller, Anatomy ofthe Law 35-36 (1968). instance court. 1. See trial court. 2. Hist. The admiralty court in England that exercised original jurisdiction in all cases except those involving prizes. insular court. A federal court with jurisdiction over U.S. island territories, such as the Virgin Islands. [Cases: Federal Courts C::=> 1021-1024.] intermediate court. An appellate court that is below a court oflast resort. International Court ofJustice. See INTERNATIONAL COURT OF JUSTICE. International Criminal Court. See I~TERNATIO~AL CRIMINAL COURT. International Trade Court. See UNITED STATES COURT OF INTERNATIONAL TRADE. J.P. court. Seejustice court. justice court. (16c) A court, presided over by a justice of the peace, that has jurisdiction to hear minor criminal cases, matters involving small amounts ofmoney, or certain specified claims (such as forcible-entry-and detainer suits). -Also termed justice-of-the-peace court; J.P. court. [Cases: Justices ofthe Peace C::='31.] juvenile court. (1903) 1. A court having jurisdiction over cases involving children under a specified age, usu. 18. _ Illinois enacted the first statewide juvenile court act in 1899. Today every state has a specialized juvenile or family court with exclusive original delin quency jurisdiction. -Also termed children's court. [Cases: Courts 174.] 2. A court having special jurisdiction over orphaned, delinquent, dependent, and neglected children. _ This type ofjuvenile court is created by statute and derives its power from the specific wording ofthe statute, usu. haVing exclusive original jurisdiction over matters involving abuse and neglect, adoption, status offenses, and delin quency. Generally, juvenile courts are special courts of a paternal nature that have jurisdiction over the care, custody, and control of children (as defined by the statute). The jurisdiction of the juvenile court is exercised as between the state (for the child) and the parents of the child and is not concerned with a custody controversy that does not affect the morale, health, or welfare ofthe child. A juvenile court is not a criminal court. The primary concern of a juvenile court is the child's immediate welfare. See UNIFORM JUVENILE COURT ACT. [Cases: Infants kangaroo court. (1849) 1. A self-appointed tribunal or mock court in which the principles of law and justice are disregarded, perverted, or parodied. -Kangaroo courts may be assembled by various groups, such as prisoners in a jail (to settle disputes between inmates) and players on a baseball team (to "punish" team mates who commit fielding errors). 2. A court or tribunal characterized by unauthorized or irregu lar procedures, esp. 80 as to render a fi:tir proceeding impossible. 3. A sham legal proceeding. -The term's origin is uncertain, but it appears to be an American ism. It has been traced to 1853 in the American West. "Kangaroo" might refer to the illogical leaps between "facts" and conclusions, or to the hapless defendant's quick bounce from court to gallows. King's Court. See CURIA REGIS. land court. A court having jurisdiction over land related matters including: (1) exclusive original juris diction of applications for registration ofland titles and related questions, writs ofentry and petitions to clear title to real estate, petitions to determine the validity and extent of municipal zoning ordinances, bylaws, and regulations, and proceedings for fore closure and redemption from tax titles; (2) original concurrent jurisdiction ofdeclaratory judgment pro ceedings, shared with the supreme judicial, superior, and probate courts; and (3) original concurrent equity jurisdiction in land-related matters, except for cases of specific performance ofland contracts. -Land courts today exist in the United States in Massachusetts and Hawaii. [Cases: Courts landed-estates court. Hist. English law. A statutorily established tribunal to dispose of encumbered real estate more promptly and easily than could be accom plished through the ordinary judicial machinery. This type of court was first established in Ireland by acts of 11 & 12 Vict., ch. 48 and 12 & 13 Vict., ch. 77. The purpose ofthe court was to enable the owner, or any lessee of an unexpired term of63 years or less, of encumbered land to apply to commissioners to direct a sale. The court served as a court of record and was called the Incumbered Estates Court. A later act abolished that court and created a new perma nent tribunal called the Landed Estates Court. 21 & 22 Vict., ch. 72. legatine court. A court held by a papal legate and having ecclesiastical jurisdiction. legislative court. (1828) A court created by a statute, as opposed to one created by a constitution. -Also termed (in federal law) Article I court. [Cases: Courts levy court. Hist. A court in the District of Columbia that exercised many of the functions typical of county commissioners or county supervisors in the states, such as constructing and repairing roads and bridges. limited court. A court haVing special jurisdiction conferred by statute, such as a probate court. - Also termed court ofspecial jurisdiction. [Cases: Courts (~:::159-197.] liquidation court. Any court in which a liquidation proceeding takes place. local court. A court whose jurisdiction is limited to a particular territory, such as a state, municipal, or county court. lord mayor's court. Hist. A court oflaw and equity that had jurisdiction in civil cases arising within the city of London and acted as the appellate court from the Chamberlain Court. _ It was abolished by the Court Act of 1971. lower court. 1. See court below. 2. See inferior court. magistrate's court (maj-i-strayts or -strits). (1904) 1. A court with jurisdiction over minor criminal offenses. _ Such a court also has the power to bind over for trial persons accused of more serious offenses. -Also termed police court. 2. A court with limited jurisdiction over minor criminal and civil matters. -Sometimes spelled (esp. in England) mag istrates' court. --Also termed (in England) court of petty sessions; court ofsummary jurisdiction. [Cases: Justices ofthe Peace C::>31.j maritime court. See ADMIRALTY (1). mayor's court. A municipal court in which the mayor presides as the judge, with jurisdiction over minor criminal (and sometimes civil) matters, traffic offenses, and the like. [Cases: Municipal Corpora tions C::>635.] military court. A court that has jurisdiction over members of the armed forces and that enforces the Code of Military Justice. See CODE OF MILITARY JUSTICE. [Cases: Military Justice <>=)870.] military court ofinquiry. A military court that has special and limited jurisdiction and that is convened to investigate specific matters and, traditionally, to determine whether further procedures are warranted. 10 USCA 935. [Cases: Armed Services ~41.] moot court. See MOOT COURT. municipal court. (17c) A court having jurisdiction (usu. civil and criminal) over cases arising within the municipality in which it sits. _ A municipal court's civil jurisdiction to issue a judgment is often limited to a small amount, and its criminal jurisdiction is limited to petty offenses. -Also termed city court. [Cases: Courts <8="::> 186; Municipal Corporations C~' 634.] naturalization court. See NATURALIZATION COURT. nisi prius court. See NISI PRIUS. open court. See OPEN COURT. ordinary's court. See probate court. orphan's court. See probate court. Palace Court. See PALACE COURT. parish court. See county court. peacemaker's court. Native American law. A tribal court that adjudicates, arbitrates, or mediates some disputes, usu. according to traditional and statutory tribal law. rCases: Indians people's court. See PEOPLE'S COURT. piepowder court. See PIEPOWDER COURT. police court. See magistrate's court (1). policy court. An appellate court, usu. a court of last resort, that must consider a decision's effects not only on the litigants but also on public policy. practice court. 1. See MOOT COURT. 2. (cap.) See BAIL COURT. prerogative court. In New Jersey, a probate court. See probate court. Courts C=: 200.] pretorial court. Hist. A 17th-century Maryland court that had jurisdiction over capital and other serious crimes. -It consisted of three judges: the colony's lord proprietor or his lieutenant-general, the Secre tary or Register ofthe Council ofState, and one other member ofthe Council. prize court. A court having jurisdiction to adjudicate the captures made at sea in time ofwar. See PRIZE (2). Cf. COURT OF APPEALS IN CASES OF CAPTURE. [Cases: War and National Emergency ~28(1).J probate court. (18c) A court with the power to declare wills valid or invalid, to oversee the administration of estates and (in some states) to appoint guardians and approve the adoption of minors. Also termed surrogate's court; surrogate court; court ofordinary; ordinary's court; county court; orphan's court (abbr. o.c.). See PROBATE. [Cases: Courts ::> 198.J problem-solving court. A specialized court that matches community resources to litigants whose problems or cases may benefit from those resources. In criminal cases, a problem -solving court endeavors to promote solutions to underlying behavior problems that may lead to misconduct by providing treatment rather than imprisonment. For example, it may match ofFenders with resources for drug-abuse or mental health treatment, often with close court supervision. In civil cases, a problem-solving court may help the parties try to resolve disputes through counseling or mediation rather than litigation. Cf. drug court. provisional court. A federal court with jurisdiction and powers governed by the order granting its authority, such as a temporary court established in a conquered or occupied territory. Quarter Sessions Court. See COURT OF GENERAL QUARTER SESSIONS OF THE PEACE. recorder's court. A court having jurisdiction over felony cases. -This court exists in only a few jurisdictions, such as Michigan, where the recorder's court hears felony cases arising within the Detroit city limits. [Cases: Criminal Law

, where the recorder's court hears felony cases arising within the Detroit city limits. [Cases: Criminal Law register'S court. Hist. A probate court in Pennsylvania or Delaware. See probate court. [Cases: Courts G-'J 200.J rogue court. A court that fails to apply controlling law in making its decisions. sheriff's court. Scots law. The principal inferior court in Scotland, haVing both civil and criminal jurisdic tion. small-claims court. (1923) A court that informally and expeditiously adjudicates claims that seek damages below a specified monetary amount, usu. claims to collect small accounts or debts. -Also termed small-debts court; conciliation court. [Cases: Courts ~~174.] spiritual court. See ecclesiastical court. state court. (18c) A court of the state judicial system, as opposed to a federal court. superior court, (18c) 1. In some states, a trial court of general jurisdiction. [Cases: Courts C=:117.5-158.1.] 2. In Pennsylvania, an intermediate court between the trial court and the chiefappellate court. [Cases: Courts C=:242(3).J supreme court. See SUPREME COURT. Supreme Court ofthe United States. See SUPREME COURT OF THE UNITED STATES. Supreme Judicial Court. (18c) The highest appellate court in Maine and Massachusetts. [Cases: Courts C=:225,227.J surrogate's court. See probate court. tax court. See TAX COURT. teen court. A group of teenagers who (1) hear cases involving juveniles, usu. first-time offenders, who have acknowledged their guilt or responsibility, and 411 (2) impose sanctions within a fixed range, usu. involv ing counseling, community service, or restitution. Some local jurisdictions in more than half the states have provided for this type of tribunal. The juvenile offender consents to the assessment of punishment by this jury ofpeers. The American Bar Association encourages the formation ofthese kinds ofcourts. Also termed youth court. Teind Court. See TEIND COURT. territorial court. A U.S. court established in a U.S. ter ritory (such as the Virgin Islands) and serving as both a federal and state court. The Constitution autho rizes Congress to create such court. U.S. Canst. art. IV, 3, cl. 2. [Cases: Federal Courts C=:='1021-1024.] three-judge court. A court made up of three judges; esp., a panel ofthree federal judges convened to hear a trial in which a statute is challenged on constitutional grounds. Three-judge courts were Virtually abol ished in 1976 when Congress restricted their juris diction to constitutional challenges to congressional reapportionments. Occasionally, Congress creates three-judge courts in special legislation, as with the 2002 campaign-finance law. Appeals from a three judge court go directly to the Supreme Court. See 28 USCA 2284. [Cases: Federal Courts (;::::)991-1013.] traffic court. A court with jurisdiction over prosecu tions for parking violations and infractions of road law. trial court. (18c) A court oforiginal jurisdiction where the evidence is first received and considered. -Also termed court offirst instance; instance court; court ofinstance. Tribal Court. See TRIBAL COURT. unified family court. In some jurisdictions, a court that hears all family matters, including matters ofdivorce, juvenile delinquency, adoption, abuse and neglect, and criminal abuse. A unified family court also hears matters typically heard in family court (in juris dictions that have statutory family courts) or in courts ofgeneral jurisdiction, such as divorce, paternity, and emancipation proceedings. Proponents of unified family courts cite the benefits of having all family related matters heard by one court -for instance, the benefit ofhaving a child testify only once rather than forcing the child to testify in one court in a divorce proceeding, in a different court in criminal proceed ings against an abuser, and in yet another in a civil proceeding initiated Child Protective Services. [Cases: Courts United States Claims Court. See UNITED STATES COURT OF FEDERAL CLAIMS. United States court. Seefederal court. United States Court of International Trade. See UNITED STATES COURT OF INTERNATIONAL TRADE. United States Customs Court. See UNITED STATES CUSTOMS COURT. court below United States District Court. See UNITED STATES DISTRICT COURT. United States Supreme Court. See SUPREME COURT OF THE UNITED STATES. United States Tax Court. See TAX COURT, U.S. upper court. See court above. vice-admiralty court. See VICE-ADMIRALTY COURT. Wood-Plea Court. See WOOD-PLEA COURT. World Court. See INTERNATIONAL COURT OF JUSTICE. youth court. See teen court. court administrator. See ADMINISTRATOR (1). court-appointed attorney. See assigned counsel under COUNSEL. court-appointed counsel. See assigned counsel under COUNSEL. court-appointed expert. See impartial expert under EXPERT. court-appointed special advocate. A trained volun teer appointed by a court to represent the interests of a child in an abuse or neglect case. -Abbr. CASA. Cf. guardian ad litem under GUARDIAN. [Cases: Infants C=:='20S.] Court Appointed Special Advocates. A federally funded program in which trained laypersons act on behalf of children in abuse and neglect cases. The CAS A program began in 1977 in Seattle, Washington. In 1989, the American Bar Association endorsed using a com bination of CASA volunteers and attorneys in abuse and neglect cases. CASA volunteers are sanctioned by the ABA as permissible guardians ad litem. Abbr. CASA. (Cases: Infants C=:='205.] court a quo. See COURT. court baron. Hist. Amanorial court that had jurisdiction over amounts in controversy of 40 shillings or less. According to some authorities, the court baron devel oped into two courts: the customary court baron for disputes involving copyholders, and the court baron proper (also known as the freeholders' court baron), in which freeholders were allowed to hold court con cerning minor disputes. -Also termed freeholder's court baron. "In Coke's day it was said that the lord of a manor had one court, 'a court baron,' for his freeholders and another court, 'a customary court,' for his copyholders, and that in the latter the lord or his steward was the judge. Now over his unfree men the lord had, according to the law of the king's court, almost unlimited power; short of maiming them he might do what he liked with them; and every tenant of an unfree tenement was a tenant at will. Nevertheless in the court rolls and the manuals for stewards which come to us from the thirteenth and fourteenth centuries we cannot discover two courts or two methods of constituting the court. Freeholders and serfs are said to owe suit to the same halimoot, and so far as we can see, the curia which pronounces judgment is always the same body." 1 Freder ick Pollock & Frederic W. Maitland, The History of Eng/ish Law Before the Time of Edward / 593 (2d ed. 1898). court below. See COURT. 412 court calendar court calendar. (1852) A list of matters scheduled for trial or hearing; DOCKET (2). court christian. See ecclesiastical court under COURT. court dinic. A medical clinic, established for the benefit of the courts, to which a judge may send a defendant for psychiatric evaluation or, esp. in the case of a juvenile, to explore why the defendant committed the offense and what treatment is appropriate. "Court Clinics have developed in two ways: one, in which the clinic has its own social workers to take case histories and to investigate the past ofthe offenders, and the second is when the Clinic utilizes the probation department as his torians and as therapists. In both types of clinics, a history is taKen. appropriate psychological tests are given to the offender, with particular reference to his intelligence, and a physical examination and a psychiatric examination are made. Usually these clinics have a meeting in which the whole staff discuss the cases when a diagnosis is made and. finally a report is sent to the referring judge, inform ing him as to the probable reason why the offender has committed the offense. the appropriate treatment if any is necessary, and the probably outcome of the case if the treatment procedures recommended are carried out." Encyclopedia ofCriminology 79-80 (Vernon c. Branham & Samuel B. Kutash eds . 1949). court commissioner. See COMMISSIOKER. court costs. See COST (2). court crier. See CRIER (1). court day. See DAY. court de facto. See de facto court under COURT. courtesan. l. A court mistress. 2. A loose woman. 3. A prostitute. -Also spelled courtezan. Cf. CONCUBINE. courtesy. See CURTESY. courtesy supervision. (1970) Oversight ofa parolee by a correctional agency located in a jurisdiction other than where the parolee was sentenced . Courtesy supervi sion is usu. arranged informally between correctional authorities in cases in which the offense is not serious and the parolee's rehabilitative needs are better served in another jurisdiction. Court for Consideration of Crown Cases Reserved. Hist. A court established in 1848 to review questions of law arising in criminal cases . Trial judges posed the postverdict questions of law to the Court, which decided whether error had been committed. The Court was abolished in 1907, and its jurisdiction was trans ferred to the Court of Criminal Appeal. -Also termed Court for Crown Cases Reserved. "It was an old practice for the judge, in case of a convic tion, if he felt a doubt as to the law, to respite judgment or sentence, and discuss the matter informally with the other judges. If they thought that the prisoner had been improperly conVicted, he was pardoned. Statutory author ity was given to this practice in 1848 by the establishment of the court for Crown Cases Reserved. All the judges were members of this court; and five, of whom the Lord Chief Justice must be one, formed a quorum." 1 William Holds worth, A History ofEnglish Law 217 (7th ed. 1956). Court for Divorce and Matrimonial Causes. Hist. A court that exercised jurisdiction over family issues, such as legitimacy and divorce . The Court, which was established in 1857, acquired the matrimonial jurisdic tion previously exercised by the ecclesiastical courts. It consisted of the Lord Chancellor, the Chief Justices of the Queen's Bench and Common Pleas, the Chief Baron ofExchequer, the senior puisne judges ofthe last three courts, and the Judge Ordinary. In most instances, the Judge Ordinary heard the cases. The Judicature Act of 1873 abolished the Court and transferred its jurisdic tion to the Probate Divorce and Admiralty Division (now Family Division) of the High Court ofJustice. Court for the Correction of Errors. A court having jurisdiction to review a lower court . The name was formerly used in New York and South Carolina. Court for the Relief ofInsolvent Debtors. Hist. A court located in London that had jurisdiction over bank ruptcy matters . The Bankruptcy Act of 1861 abol ished the Court. court for the trial of impeachments. (18c) A tribunal empowered to try a government officer or other person brought before it by the process ofimpeachment. The U.S. Senate and the British House of Lords have this authority, as do the upper houses of most state legis latures. Also termed impeachment court; court of impeachment. court hand. Hist. A script style used by English court derks, the words being abbreviated and contracted according to a set ofcommon principles for maintain ing brevity and uniformity . This type of writing, along with the use of Latin (except for technical or untranslatable phrases), was banned early in the 18th century in an effort to make court records more acces sible to nonlawyers. "[Tlechnical Latin continued in use from the time of its first introduction, till the subversion of our ancient constitution under Cromwell; when. among many other innovations in the law. some for the better and some for the worse, the language of our records was altered and turned into English. But, at the restoration of king Charles, this novelty was no longer countenanced; the practicers finding it very difficult to express themselves so conCisely or significantly in any other language but the Latin. And thus it continued without any sensible inconvenience till about the year 1730, when it was again thought proper that the proceedings at law should be done into English, and it was accordingly so ordered by statute 4 Geo. II. c. 26. .. What is said of the alteration of language by the statute 4 Geo. II. c. 26 will hold equally strong with respect to the prohibition of using the ancient immutable court hand in writing the records of other legal proceedings; whereby the reading of any record that is forty years old is now become the object of science, and calls for the help of an antiquarian." 3 William Blackstone. Commentaries on the Laws ofEngland 322-23 (1768). courthouse. See COURT (5). courth

322-23 (1768). courthouse. See COURT (5). courthouse steps. The figurative location of settlement negotiations that occur shortly before trial commences, regardless ofthe literal location of the negotiations <the parties settled the lawsuit on the courthouse steps>, court lands. Hist. The part ofa manor used for the lord's household. Also termed (in Latin) curtiles terrae. court leet (kort leet). Hist. A feudal court responsible for frankpledges and notices of criminal 413 Court of Assistants accusations . Courts leet exercised both governmen tal and judicial powers, but they declined in the 14th century after the justices in eyre began to take over serious criminal cases. The court met once or twice a year, and was presided over by the lord's steward, a lawyer who acted as judge. court-martial, n. (18c) An ad hoc military court convened under military authority to try someone, particularly a member ofthe armed forces, accused of violating the Uniform Code ofMilitary Justice. [Cases: Military Justice C=870-898.] PI. courts-martial. court-martial, vb. "[Clourts-martial are not a part of the federal judicial system, and the procedure in such courts is regulated by the Articles of War, Army Regulations, orders of the Presi dent, and military custom." Altmayer v. Sanford, 148 F.2d 161, 162 (5th Cir. 1945). BCD special court-martial. A special court-martial in which a possible punishment is a bad-conduct dis charge (a "BCD"). general court-martial. A proceeding that is preSided over by a military judge, and no fewer than five members (who serve as jurors), and that has juris diction over all the members of the armed forces. It is the highest military trial court. special court-martial. A proceeding that is presided over by a military judge and no fewer than three members (who serve as jurors) to hear noncapital offenses and prescribe a sanction of hard labor, dis missal, or extended confinement (up to one year) . It is the intermediate level ofcourts-martial. summary court-martial. A proceeding preSided over by a single commissioned officer who is jurisdiction ally limited in what sanctions can be imposed . It is the lowest level ofcourts-martial. court-martial order. A written order containing the result ofa court-martial trial. Court-Martial Reports. A publication containing the opinions of the U.S. Court of Military Appeals and select decisions of the Courts ofMilitary Review . This publication appeared during the years 1951-1975. - Abbr. CMR. court merchant. See COURT. court not ofrecord. See COURT. Court of Admiralty. See HIGH COURT OF ADMIRALTY. court of ancient demesne. Hist. A court made up of freeholders ofland held by the Crown (Le., an ancient demesne) . The freeholders acted as judges much the same way that freeholders ofan ordinary manor would in a court baron. See ancient demesne under DEMESNE; COURT BARON. Court ofAppeal. An English court of civil and criminal appellate jurisdiction established by the Judicature Acts of 1873 and 1875. The court is made up of the Lord Chancellor, Lord Chief Justice, Master of the Rolls, President of the Family Division, Vice-Chancellor of the Chancery Division, former Lord Chancellors, Lords of Appeal in Ordinary, and Lords Justices of AppeaL In practice it is made up ofthe Master of Rolls and the Lords Justices. It sits in several divisions, each having three members. Court ofAppeal in Chancery. Hist. An English court of intermediate appeal in equity cases, established in 1851 and abolished in 1873-1875, when its jurisdiction was transferred to the Court of Appeal. court ofappeals. See COURT. Court ofAppeals, U.S. See UNITED STATES COURT OF APPEALS. Court of Appeals for the Armed Forces. See UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES. Court of Appeals for the Federal Circuit. See UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT. Court ofAppeals for Veterans Claims. The federal court that reviews decisions ofthe Board ofVeterans Appeals. [Cases: Armed Services C=:o 154.] Court ofAppeals in Cases of Capture. Hist. A court responsible for reviewing state-court decisions con cerning British ships captured by American priva teers during the Revolution . Congress established the court under the Articles ofConfederation. It was the first federal court in the United States and the chief United States court from 1780 to 1787. Cf. prize court under COURT. Court ofArchdeacon (ahrch-dee-bn). Hist. Eccles. law. An inferior ecclesiastical court that had jurisdiction over cases arising within the archdeaconry and probate matters. Appeal was to the Bishop's Court. The Court of Archdeacon was abolished in 1967. Also termed Archdeacon's Court; Archdiaconal Court (ahr-b-dI ak-,m-<ll). Court of Arches. Eccles. law. The ecclesiastical court of the province of Canterbury, responsible for appeals from provincial diocesan courts. The Pope heard appeals from the Court of Arches until the break with Rome prompted a transfer of the appellate jurisdiction to the Court of Delegates. The Judicial Committee of the Privy Council now hears certain appeals from the Court ofArches. Also termed Arches Court ofCan terbury; Court ofCanterbury; Court ofthe Official Prin cipal. Cf. CHANCERY COURT OF YORK. 'The Court of Arches is the provincial court of the Arch bishop of Canterbury. It is held by ajudge generally called the Dean of the Arches. Its jurisdiction was important while testamentary cases were dealt with in the Ecclesi astical Courts. The name is derived from the fact that the court was originally held in the Church of St. Mary-ie-BOW (Ecciesia Beatae Mariae de Arcubus), the steeple of which is raised on stone pillars formed archwise like bent bows." W.J.v. Windeyer, Lectures on Legal Historv 184 n.11 (2d ed. 1949). Court ofAssistants. Hist. A colonial body organized in Massachusetts Bay Colony in 1630 to act as a legislature and court for the colony. Cf. GENERAL COURT. 'The court of assistants, made up of governor, deputy governor, and magistrates, heard appeals from lower 414 Court of Attachments courts, and took original jurisdiction in certain cases for example, cases of divorce. Below it were the county courts." Lawrence M. Friedman, A History ofAmerican Law 40 (2d ed. 1985). Court of Attachments. Hist. An inferior forest court with jurisdiction over trespasses of the royal forests. 'The judges of this court (the verderers) met every 40 days to hear charges made by the royal foresters. Major trespass cases were heard by the justices in eyre. -Also termed wood-mote;forty-days court. See VERDERER. Court ofAudience. Rist. Eccles. law. A court in which the Archbishop of York or Canterbury exercised personal jurisdiction . This court was abolished in 1963. ')ust as the bishop did not deprive himself of all jurisdiction by delegation to an official or commissary, so the arch bishop did not originally deprive himself of all jurisdic tion by delegation to the official principal. He possessed a jurisdiction concurrent with that of the court of the Arches, which was exercised in the court of Audience. In later times this jurisdiction was exercised by the judge of the court of Audience. At one time the archbishop may have exercised a considerable part of this jurisdiction in this court." 1 William Holdsworth, A History of English Law 601 (7th ed. 1956). Court of Augmentations. Hist. A court established in 1536 by Henry VIII to determine controversies arising from the royal policy of taking over property owned by monasteries . The court was merged into the Court of Exchequer in 1554. Court of Canterbury. See COURT OF ARCHES. Court of Cassation (ka-say-shan). The highest court of France. The court's name derives from its power to quash (casser) the decrees of inferior courts. Also termed (more formally) Cour de Cassation. court ofchancery. See CHANCERY (1). court ofchivalry. See HIGH COURT OF CHIVALRY. Court ofCivil Appeals. (1892) An intermediate appellate court in some states, such as Alabama and (formerly) Texas. [Cases: Courts 247.] court of claims. l. See COURT. 2. (cap.) See UNITED STATES COCRT OF FEDERAL CLAIMS. Court ofCommon Pleas. (l6c) 1. Hist. A superior court having jurisdiction of all real actions and common pleas (i.e., actions between subjects) . The Court was presided over by a chief justice with four (later five) puisne judges. In 1873 it became the Common Pleas Division of the High Court ofJustice. In 1881 it merged into the Queen's Bench Division. 2. An intermediate level court in some states, such as Arkansas. [Cases: Courts 3. A trial court ofgeneral jurisdiction in some states, such as Ohio, Pennsylvania, and South Carolina. [Cases: Courts 150, 151, 153.] -Also termed Court ofCommon Bench. -Abbr. c.P. "Common pleas is the kings Court now held in Westminster hall, but in auncient time moveable, as appeareth by the statute called Magna charta . ... [U]ntill the time that Henry the third granted the great charter, there were but two courts in all, called the Kings courts: whereof one was the Exchequer, and the other, the kings bench, which was then called (curia Domini regis) and (aula regis) because it followed the court or king: and that upon the grant of that charter, the court of common pleas was erected and setled in one place certaine: viz. at Westminster . ... All civil I causes both reall and personall are, or were in former times, tryed in this court, according to the strict lawe of the realme: and by Fortescue, cap. 50 it seemeth to have bene the onely court for reall causes." John Cowell, The Interpreter (1607) . court ofcompetent jurisdiction. See COURT. court of conscience. Hist. A local English court that had jurisdiction over small-debt cases . The court was so called because its judgments were supposed to reflect equity and good conscience. County courts assumed the jurisdiction of the courts of conscience in 1846. Court ofConvocation. Eccles. law. An assembly ofhigh ranking provincial officials and representatives of the lower clergy haVing jurisdiction over cases of heresy, schism, and other ecclesiastical matters. Court of Criminal Appeals. (1856) 1. For each armed service, an intermediate appellate court that reviews court-martial decisions. The court was estab lished by the Military Justice Act of 1968. 10 USCA 859-876. -Formerly termed Court ofMilitary Review (abbr. CMR). Military Justice (::::>1411.] 2. In some jurisdictions, such as Texas and Oklahoma, the highest appellate court that hears criminal cases. Court ofCustoms and Patent Appeals. Hist. An Article III court created in 1929 to hear appeals in customs and patent cases . This court was abolished in 1982 and was superseded by the V.S. Court of Appeals for the Federal Circuit. Abbr. CCPA. See UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT. [Cases: Patents Court ofDelegates. Hist. Eccles. law. A court serving as the final court ofappeal for admiralty and ecclesiasti cal matters . The Court was established in 1534 to serve in the stead ofthe Papal Curia when the English Church severed its ties with the Papacy. Six delegates, appointed to hear only one case, made up the Court, usu. three persons trained in common law and three in civil law. This mixture led to confused rulings and unreliable precedents that hindered the Court's cred ibility and ultimately led to its dissolution. The Court was abolished in 1833 and its jurisdiction transferred to the Judicial Committee of the Privy Council. Also termed High Court ofDelegates. "The crown had an absolute discretion as to the person to be appointed. But, as the lawyers of Doctors' Commons were the only lawyers acquainted with canon or civil law, certain of them were usually included in the commission .... It is not surprising to find that the [Court of Delegates] was unsatisfactory. It was a shifting body, so that no general rules of procedure could be established. It did not as a rule give reasons for its decisions. Its members were only paid a guinea a day: and consequently it was usually composed of the junior civilians. On them, the judges of the common law courts, appointed as delegates, were obliged to rely for their law. In consequence of the dissatisfaction felt at its working the EccleSiastical Commission of 1832, in a special report, recommended the transfer of its jurisdiction to the Privy Council ...." 1 William Holdsworth, A History ofEnglish Law 605 (7th ed. 1956).

1 William Holdsworth, A History ofEnglish Law 605 (7th ed. 1956). 415 Court of Great Sessions in Wales court of domestic relations. See family court under COURT. Court ofEarl MarshaI.1. See COURT OF THE LORD HIGH CONSTABLE AND EARL MARSHAL. 2. See HIGH COURT OF CHIVALRY. court ofequity. See COURT. court of error. 1. Hist. Formerly, the Court of Exche quer Chamber and the House ofLords. Appeals from common-law courts lay to the Court of Exchequer Chamber, and then to the House of Lords until 1873, when the Judicature Act gave jurisdiction of superior court appeals to the Court of AppeaL Cf. COURT OF EXCHEQUER CHAMBER. 2. Generally, a court having jurisdiction to review a lower court's rulings. Court of Errors and Appeals. Hist. Formerly, the court oflast resort in New Jersey and New York. Also termed High Court ofErrors and Appeals. Court of Exchequer (eks-chek-~r or eks-chek-~r). Hist. A former English superior court responsible primarily for adjudicating disputes about the collection ofpublic revenue. In 1873 it became the Exchequer Division of the High Court ofJustice. In 1881 that Division was merged into the Queen's Bench Division. See QUEEN'S BENCH DIVISION. Cf. CHAMBER OF ACCOUNTS. Court of Exchequer Chamber. Hist. 1. An informal assembly of common-law judges who (sometimes with the Lord Chancellor) gathered to discuss important cases that had adjourned pending an opinion from the Court. This body never became a court oflaw in a technical sense, but judges gave great weight to its decisions. The last reported decision of this body is from 1738. "Earlier than these two statutory courts was the practice, which apparently originated about the time of Edward I, of informal meetings of the judges in the Exchequer Chamber to decide matters connected with litigation.... The purpose ofthe meeting was to bring before the judges a point of law which caused difficulty and which had arisen in a case being heard before one or other of the courts. Any resolution passed did not constitute ajudgment; it was left to the court concerned to make the appropriate decree, and the official record made no reference to the informal decision.... Civil cases were debated in the Exchequer Chamber as late as the seventeenth century, and criminal cases continued to be 'reserved' for full discussion by all the common law judges until the nineteenth century." A.K.R. Kiralfy, Potter's Outlines of English Legal History 202-04 (5th ed. 1958). 2. A court created by statute in 1357 to hear appeals from the Court of Exchequer. 3. A court created by statute in 1585 to hear appeals from the King's Bench. This court consisted ofall the justices ofthe Common Pleas and the Barons of Exchequer who were ser jeants. At least six judges were necessary to render a judgment. "Parliament was only occasionally summoned in the six teenth century; and as Parliament was the only court which could amend errors of the King's Bench, the want of a court which could hold regular sessions was much felt. To supply this want a new court of Exchequer Chamber was created in 1585 for the purpose of amending the errors of the King's Bench." 1 William Holdsworth, A History of English Law 244 (7th ed. 1956). 4. A court charged with hearing appeals from the com mon-law courts of record . This court was created in 1830 by combining the courts created by the statutes of 1357 and 1585. Appeals from one common-law court were heard by judges from the other two courts. "This complicated system ofappellate courts was abolished in 1830, when a new Court of Exchequer Chamber was set up as the court of error from each of the three common law courts. It was composed of the judges of the two common law courts other than those of the court appealed from. At the same time the right of the King's Bench to hear error from the Common Pleas was abolished. From the judgment of this new court a further appeal still lay to the House of Lords. This court was thus, until the Judicature Act, 1873, a court of intermediate appeals. Its jurisdiction after the Judicature Act passed to the Court of Appeal which was then created." W.J.V. Windeyer, Lectures on Legal History 144 (2d ed. 1949). Court ofFaculties. Eccles. law. An archbishop's tribunal that grants special dispensations (such as a marriage license) and decides questions relating to monuments and mortuary matters. See MASTER OF THE FACUL TIES. Court of Federal Claims, U.S. See UNITED STATES COURT OF FEDERAL CLAIMS. court officer. See OFFICER OF THE COURT. court offinal appeal. See COURT. court of first instance. See trial court under COURT. court ofgeueral jurisdiction. See COURT. Court of General Quarter Sessions of the Peace. Hist. 1. English law. A court of criminal jurisdiction held in each county (or borough) once in every quarter of a year. The court was made up of a county's justices ofthe peace. It committed certain cases to the Assizes. Quarter Sessions were abolished in 1971, with most jurisdiction transferred to the Crown Court. Often shortened to Quarter Sessions; Sessions. "The court of general quarter sessions of the peace is a court that must be held in every county, once in every quarter of a year .... It is held before two or more justices of the peace, one of which must be of the quorum. The jurisdiction of this court, by statute 34 Edw. III. c. I. extends to the trying and determining all felonies and trespasses whatsoever, though they seldom, if ever, try any greater offence than small felonies within the benefit ofclergy ...." 4 William Blackstone, Commentaries on the Laws ofEngland 268 (1769). 2. A court held in some states four times a year with jurisdiction over misdemeanors and occasionally tasks of an administrative nature, such as the care of public roads and bridges. -Often shortened to Quarter Sessions Court. Also termed Court of Quarter Sessions ofthe Peace. Court of Great Sessions in Wales. Hist. A common-law court established in 1543 in Wales with jurisdiction equivalent to that of the English assizes . 1he Court of Great Sessions was bound to follow English law, but not necessarily English case precedent. Also termed King's Great Sessions in Wales. 416 Court of High Commission 'There was no outcry when, in 1536, 'the sinister usages and customs' of the Welsh were abrogated and Welsh subjects were granted the same laws and liberties as the English .. , . A new system of courts, called the Great Sessions in Wales, was set up. The courts were to sit twice a year in four circuits, each comprising three counties, and to each circuit were appointed justices 'learned in the laws of this realm'. These courts operated alongside the English courts, and they had the same jurisdiction in Wales as the King's Bench and Common Pleas had in England .... In 1830 the Great Sessions were abolished, and by complete procedural assimilation England and Wales became at las! one unified jurisdiction, two extra circuits being added to the English aSSize system." J.H. Baker, An Introduction to English Legal History 37-38 (3d ed. 1990). Court of High Commission. Hist. Eccles. law. A tribunal responsible for inquiring into religiOUS offenses such as the holding ofheretical opinions, and absence from church. Functioning as a court, the High Commis sion also prosecuted violations of the Acts of Suprem acy and Uniformity (1559), the statutes that gave the Crown supreme power over the Church of England. The Commission's broad powers and use of civil-law proce dures in wavs counter to the common law (such as com pelling suspects to testify against themselves) sparked opposition to its existence. Its close relationship with the Court ofStar Chamber hastened its demise (along with the Star Chamber) in 1641. -Also termed High Commission Court. "[T1he court of the king's high commission in causes eccle siastical .. _ was intended to vindicate the dignity and peace of the churCh, by reforming, ordering, and correct ing the ecclesiastical state and persons, and all manner of errors, hereSies, schisms, abuses, offences, contempts, and enormities. Under the shelter of which very general words, means were found in that and the two succeeding reigns, to vest in the high commissioners extraordinary and almost despotic powers, of fining and imprisoning; which they exerted much beyond the degree of the offence itself, and frequently over offences by no means of spiritual cognizance. For these reasons this court was justly abol ished by Statute 16 Car. I, c. 11. And the weak and illegal attempt that was made to revive it, during the reign of King James the second, served only to hasten that infatuated prince's ruin." 3 William Blackstone, Commentaries on the Laws ofEngland 67-68 (1768). Court of Honor. Hist. 1. English law. A feudal court of the manor. 2. English law. A court with jurisdiction to hear complaints concerning either affronts to honor or encroachments in precedence rights, heraldry, or coat-armor. 3. A tribunal of army officers convened to review and punish any dereliction from a code of honor. Court of Hustings (h<ls-tingz). Hist. 1. English law. A local court with jurisdiction over real and mixed actions, held in the Guildhall of London before the Recorder, the Lord Mayor, and Sheriff (the latter two officials serving as honorary judges) . This court dates from before the Conquest. 2. Formerly, a local court in Virginia. -Also termed curia burgi. See HUSTING. court of impeachment. See COURT FOR THE TRIAL OF IMPEACHMENTS. court ofinquiry. See COURT. court of instance. See trial court under COURT. Court ofInternational Trade, U.S. See UNITED STATES COURT OF INTERNATIONAL TRADE. Court of Justice Seat. See COURT OF THE CHIEF JUSTICE IN EYRE. Court of Justiciary, High. See HIGH COURT OF JUSTI CIARY. Court of King's Bench. See KINe'S BENCH. court oflast resort. See COURT. court oflaw. See COURT. court of limited jurisdiction. See COURT. Court of Magistrates and Freeholders. Hist. A South Carolina court with criminal jurisdiction over alleged offenses committed by slaves and free persons of color. Court of Military Appeals. See UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES. Court of Military Review. See COURT OF CRIMINAL APPEALS (1). court of nisi prius. See NISI PRIUS. Court ofthe Official Principal. See COURT OF ARCHES. court ofordinary. See probate court under COURT. court of original jurisdiction. See COURT. Court ofOrphans. Hist. In Maryland and Pennsylvania, a court that exercised probate jurisdiction. Court of Oyer and Terminer (oY-<1r an[d] t<lr-ma-nar). (l7c) 1. Hist. An assize court commissioned by the Crown to pass through the counties two or more times a year and hear felonies and treason cases . The judges sat by virtue of several commissions, each of which, strictly speaking, created a separate and distinct court. A judge with an oyer and terminer commission, for example, was allowed to hear only cases of felony and treason; he could not try persons charged with other criminal offenses. But if the judge also carried a com mission ofgaol delivery (as most did), he could try all prisoners held in gaol for any offense; in this way most Courts ofOyer and Terminer gathered full criminal jurisdiction. The jurisdiction of the assize courts was taken over by the Crown Court in 1971. See ASSIZE (1); COMMISSION OF OYER AND TERMINER; COMMISSION OF GAOL DEl.IVERY. 2. In some states, a court of higher criminal jurisdiction. Court of Oyer and Terminer and General Gaol Delivery. Hist. 1. A court that carries the commissions of oyer and terminer and gaol delivery. See COMMIS SION OF OYER AND TERMINER; COMMISSION OF GAOL DELIVERY. 2. In Pennsylvania, a court of criminal juris diction. Court of Peculiars. Hist. Eccles. law. A branch of the Court ofArches that had jurisdiction over the provin cial parishes of Canterbury that were exempt from the jurisdiction of the diocesan bishop and responsible to the metropolitan only . The Court of Peculiars was abolished in the 19th century. See COURT OF ARCHES; PECULIAR. 417 court of petty sessions. See magistrate's court under COURT. court of piepowder. See PIEPOWDER COURT. Court of Pleas. Hist. A court of the county palatine of Durham, England having a local common-law jurisdic tion. It was abolished in 1873, and its jurisdiction was transferred to the High Court. Also termed Court ofPleas ofDurham. Court of Policies of Insurance. Hist. A court that determines in a summary way insurance-policy issues arising between merchants . The Court's jurisdiction extended only to London, and

a summary way insurance-policy issues arising between merchants . The Court's jurisdiction extended only to London, and appeal was taken to the Court ofChancery. The Court was abolished in 1863. Also termed Court of Policies ofAssurance. Court ofPrivate Land Claims. Hist. A federal court in existence from 1891 to 1895 with jurisdiction to hear private parties' claims to public-domain land located in the southwestern part of the United States and deriving from Spanish or Mexican grants. Court of Probate. 1. Hist. A court established in 1857 to receive the testamentary jurisdiction formerly held by the ecclesiastical courts. e In 1873 the Court was merged into the High Court ofJustice, where its jurisdiction was exercised by the Probate Divorce and Admiralty (now Family) Division. 2. See probate court under COURT. Court of Quarter Sessions ofthe Peace. See COURT OF GENERAL QUARTER SESSIONS OF THE PEACE. Court of Queen's Bench. See BENCH. court ofrecord. See COURT. Court of Regard. Hist. A forest court responsible for looking into matters of waste and encroachment onto forest land (Le., purpresture). eThe Court also ensured that the feet of all mastiffs a breed allowed in royal forests as guard dogs within the forest were declawed and cut so as to prevent them from chaSing deer. Court of Requests. Rist. A royal court whose jurisdic tion was mainly civil, though it exercised quasi-crim inal jurisdiction in offenses such as riot and forgery. Dating from 1483, the Court of Requests was a part of the Privy Council. It was disbanded in 1641 when Parliament limited the Privy Council's judicial func tions. ''The establishment of the court of Requests was due to the large increase in the judicial business of the Council and the Chancery under the Tudors .... It was related both to the judicial side of the Council, which, as we shall see. came, in the course of the Tudor period, to be known as the court of Star Chamber, and to the court of Chancery .... [FJrom the end of Henry VIII's reign onwards, the legal assessors of the court assumed entire control, with the result that it became a court which was quite separate from the court of Star Chamber. These legal assessors were styled Masters of Requests, and from their title the court got its name." 1 William Holdsworth, A History of English Law 412-13 (7th ed. 1956). court of review. See appellate court under COURT. Court ofSession. 1. Scots law. 1he supreme Scottish civil court. Its jurisdiction corresponds generally to the Court of the Lord High Steward English High Court ofJustice. The Court of Session is divided into Outer House and Inner House. In Outer House, one judge hears cases of first instance. The Outer House's jurisdiction corresponds generally to the English High Court ofJustice. The Outer House has two appellate chambers, the First and Second Division, in which three-judge panels sit. The Inner House's juris diction corresponds generally to the English Court of Appeal. The Court of Session also has several Lords Ordinary, who sit individually as trial judges. Also termed Supreme Civil Court in Scotland. 2. In a few states, a court with jurisdiction over criminal cases. Court ofShepway. Hist. The Court ofthe Lord Warden ofthe Cinque Ports, exercising civil jurisdiction . The civil jurisdiction of the Cinque Ports was abolished in 1855. See CINQUE PORTS. court of special jurisdiction. See limited court under COURT. court ofspecial session. See COURT. Court ofStar Chamber. See STAR CHAMBER (1). court ofsummary jurisdiction. See magistrate's court under COURT. Court ofSwain mote. See COURT OF SWEINMOTE. Court of Sweinmote (swayn-moht). Hist. A medieval forest court with jurisdiction over a variety ofmatters, esp. the right to graze animals during the summer when deer were fawning . The forest freeholders (the sweins) made up the jury of the Court. By the 14th century, the Court's jurisdiction had expanded, and it acquired a form similar to the eyre courts. Also spelled Court ofSwainmote. Court ofTeinds. See TEIND COURT. Court of the Chief Justice in Eyre (air). Hist. An eyre court responsible for trying offenses against the forest laws. The jurisdiction of this Court was similar to that ofthe Court ofSweinmote. Also termed Court ofJustice Seat. Court ofthe Earl Marshal. 1. COURT OF THE LORD HIGH CONSTABLE AND EARL MARSHAL. 2. HIGH COURT OF CHIVALRY . Court ofthe Lord High Admiral. See HIGH COURT OF ADMIRALTY. Court ofthe Lord High Constable and Earl Marshal. Hist. A court having jurisdiction over diverse military matters, such as treason, prisoners ofwar, and disputed coats ofarms. The Lord High Constable and the Earl Marshal were the top military officials ofthe Norman kings. After the office ofLord High Constable was for feited in 1521, the court continued on as the Court ofthe Earl Marshal, but its jurisdiction was reduced to ques tions ofchivalry only. Cf. HIGH COURT OF CHIVALRY. Court of the Lord High Steward. Hist. A court com missioned to try a peer indicted for treason or a felony. The Court met only if the House of Lords was not in session. The Lord High Steward sat as a judge and decided questions oflaw, and the peers decided facts only. The Court last sat in 1688. 418 Court of the Lord High Steward of the Universities Court of the Lord High Steward of the Universities. Hist. A court convened to try scholars, esp. Oxford or Cambridge students, who have been indicted for treason, felony, or mayhem. Court ofthe Marshalsea (mahr-shdl-see). Hist. A court that moved about with the king, and had jurisdiction over certain cases arising within 12 miles of the king's residence tan area known as the verge). _ The Court's steward and marshal acted as judges of the Court, and heard criminal cases and the common pleas of debt, covenant, and certain trespasses. The court's migra tory nature made it inconvenient for litigants, and prompted its abolition in 1849. -Also termed Court ofthe Steward and Marshal. Cf. PALACE COURT. "Coke points out that all the Acts passed concerning this court restrained, or explained, but never added to its juris diction. He decided, in the Case of the Marsha/sea, that it could not try the newer forms of action such as assumpsit and trover. Its once general jurisdiction had passed to the court of King's Bench, and the attitude of that court to the more limited court of the Marshalsea made the court of the Marshalsea almost useless. There were complaints in the seventeenth century of the conduct of its officials; and, as it was obliged to follow the king in his progresses, it was a court extremely inconvenient to use." 1 William Holds worth, A History ofEnglish Law 208 (7th ed. 1956). Court ofthe Official Principal. See COURT OF ARCHES. Court ofthe Steward and Marshal. See COURT OF THE MARSHALSEA. Court ofthe Steward ofthe King's Household. Hist. A court having jurisdiction over criminal cases involv ing a member of the royal household. -This court's jurisdiction was at first limited to acts of violence by the king's servants toward a member ofthe king's council, but it was later given broader criminal authority. The Court was abolished in 1828. Court of Verge. 1. See VERGE (1). 2. See VERGE (2). Court of Veterans Appeals, U.S. See UNITED STATES COURT OF VETERANS APPEALS. Court of Wards and Liveries. Hist. A court created in 1540 to assert the Crown's right to income from a variety of feudal tenures . The Court's unpopularity led to its abolition in 1660. "[I]nquests of office were more frequently in practice than at present, during the continuance of the military tenures among us: when, upon the death of everyone of the king's tenants, an inquest of office was held, called an inquisitio post mortem, to enquire of what lands he died seised, who was his heir, and of what age, in order to entitle the king to his marriage, wardship, relief, primer-seisin, or other advantages, as the circumstances of the case might turn out. To superintend and regulate these enquiries, the court of wards and liveries was instituted by statute 32 Hen. VIII c. 46 which was abolished at the restoration of king Charles the second, together with the oppressive tenures upon which it was founded." 3 William Blackstone, Commentaries on the Laws ofEng/and 258 (1768). courtoisie internationale. See COMITY. court order. See ORDER (2). court-ordered arbitration. Seejudicial arbitration under ARBITRATION. court-packing plan. A unsuccessful proposal- made in 1937 by President Franklin D. Roosevelt -to increase the number of U.S. Supreme Court justices from nine to fifteen. -'The ostensible purpose ofthe proposal was to increase the court's efficiency, but President Roosevelt wanted to appoint justices who would not block his administration's New Deal programs. court papers. (l7c) All documents that a party files with the court, including pleadings, motions, notices, and the like. Often shortened to papers. -Also termed suit papers. court probation. See bench probation under PROBA TION. court recorder. See RECORDER. court reporter. (1894) 1. A person who records testi mony, stenographically or by electronic or other means, and when requested, prepares a transcript <the deposi tion could not start until the court reporter arrived>. Also termed (in BrE) official shorthand writer. Cf. court recorder under RECORDER. [Cases; Courts C=>57; Trial C.~23.]2. REPORTER OF DECISIONS. court roll. Hist. A record of a manor's tenures; esp., a record of the terms by which the various tenants held their estates. -Copyhold tenure, for example, devel oped from the practice of maintaining court rolls. See COPYHOLD. courtroom. The part of a courthouse where trials and hearings take place. Cf. judge's chamber under CHAMBER. [Cases; Courts C-=72.] courtroom deputy. See DEPUTY. courtroom privilege. See judicial privilege under PRIVI LEGE (1). court rules. (17c) Regulations having the force of law and governing practice and procedure in the various courts, such as the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the U.S. Supreme Court Rules, and the Federal Rules of Evidence, as well as any local rules that a court promulgates. -Also termed rules ofcourt. [Cases; Courts C=>78-85; Federal Civil Procedure C=>21.] courts ofthe franchise. See FRANCHISE COURT. court system. The network ofcourts in a jurisdiction. court trial. See bench trial under TRIAL. court witness. See WITNESS. cousin. 1. A child ofone's aunt or uncle. -Also termed first cousin;full cousin; cousin-german. 2. A relative descended from one's ancestor (such as a grandpar ent) by two or more steps in a diverging line. 3. Any distant relative by blood or marriage; a kinsman or kinswoman. cousin-german. A first cousin; a child of a full sibling ofone's mother or father. See GERMAN. cousin-in-law. 1. The husband or wife ofone's cousin. 2. A cousin of one's husband or one's wife. 419 cousin once removed. 1. A child of one's cousin. 2. A cousin ofone's parent. cousin twice removed. 1. A grandchild ofone's cousin. 2. A cousin of one's grandparent. first cousin. See COUSIN (I). second cousin. A person related to another by descend ing from the same great-grandfather or great-grand mother. third cousin. A person related to another by descend ing from the same great-great-grandfather or great great-grandmother. covenant (k;>v-a-nant), n. (14c) 1. A formal agreement or promise, usu. in a contract or deed, to do or not do a particular act. absolute covenant. (17c) A covenant that is not quali fied or limited by any condition. Cf. conditional covenant. affirmative covenant. A covenant that obligates a party to do some act; esp., an agreement that real property will be used in a certain way . An affirma tive covenant is more than a restriction on the use of property. For the real-property sense, see affirmative covenant under COVENANT (4). Cf. negative covenant. [Cases: Covenants (;::::)49, 69.] assertory covenant (..-sar-t ..-ree). One that affirma tively states certain facts; an affirming promise under seal. auxiliary covenant (awg-zil-Yd-ree). A covenant that does not relate directly to the primary subject of the agreement, but to something connected to it. Cf. prin cipal covenant. collateral covenant (k.J-!at-.J-f.JI). A covenant entered into in connection with the grant ofsomething, but that does not relate immediately to the thing granted

.JI). A covenant entered into in connection with the grant ofsomething, but that does not relate immediately to the thing granted; esp., a covenant in a deed or other sealed instrument not pertaining to the conveyed property. Cf. inherent covenant. concurrent covenant. (1819) A covenant that reqUires performance by one party at the same time as anoth er's performance. conditional covenant. (17c) A covenant that is qualified by a condition. Cf. absolute covenant. continuing covenant. A covenant that requires the suc cessive performance ofacts, such as an agreement to pay rent in installments. covenant in deed. See express covenant. covenant in law. See implied covenant. covenant not to compete. See noncompetition cove nant. covenant not to execute. A covenant in which a party who has won a judgment agrees not to enforce it. 'Ihis covenant is most common in insurance law. [Cases: Insurance (;::::>3367; Release (;::::>37.] covenant not to sue. (l8c) A covenant in which a party having a right of action agrees not to assert that covenant right in litigation. -Also termed contract not to sue. [Cases: Release 37.] "A covenant not to sue is a promise by the creditor not to sue either permanently or for a limited period. If the promise is one never to sue It operates as a discharge just as does a release. The theory is that should the creditor sue despite his promise not to. the debtor has a counterclaim for damages for breach of the creditor's covenant not to sue which is equal to and cancels the original claim .... If the covenant is not to sue for a limited time, the modern view is that the covenant may be raised as an affirmative defense to any action brought in violation of the covenant." John D. Calamari &Joseph M. Perillo, The Law ofContracts 2111, 878-79 (3d ed. 1987). dependent covenant. A covenant that imposes a duty that depends on the other party's prior performance. Until the performance, the other party does not have to perform. Cf. concurrent covenant; indepen dent covenarlt. executed covenant. A covenant that has been fully per formed. executory covenant (eg-zek-ya-tor-ee). A covenant that remains unperformed in whole or in part. express covenant. (17c) A covenant created by the words of the parties. Also termed covenant in deed. Cf. implied covenant. implied covenant. (17c) A covenant that can be inferred from the whole agreement and the conduct of the parties. Also termed covenant in law. See implied term under TERM (2). Cf. express covenant. implied covenant ofgood faith andfair dealing. (1924) An implied covenant to cooperate with the other party to an agreement so that both parties may obtain the full benefits ofthe agreement; an implied covenant to refrain from any act that would injure a contracting party's right to receive the benefit of the contract . Breach ofthis covenant is often termed bad faith. See BAD FAITH (2). [Cases: Contracts 168.] implied negative covenant. (1890) A covenant binding a grantor not to permit use of any reserved right in a manner that might destroy the benefits that would otherwise inure to the grantee. independent covenant. A covenant that imposes a duty that does not depend on the other party's prior per formance. Cf. dependent covenant. inherent covenant. A covenant that relates directly to land, such as a covenant of quiet enjoyment. Cf. col lateral covenant. intransitive covenant. A covenant whose performance does not pass from the original covenantor to the cov enantor's representatives. Cf. transitive covenant. joint covenant. A covenant that binds two or more cov enantors together. Cf. several covenant. negative covenant. (I8c) A covenant that requires a party to refrain from doing something; esp., in a real estate financing transaction, the borrower's promise to the lender not to encumber Of transfer the real estate as long as the loan remains unpaid. Cf. affir mative covenant. covenant 420 noncompetition covenant. A promise, usu. in a sale of-business, partnership, or employment contract, not to engage in the same type ofbusiness for a stated time in the same market as the buyer, partner, or employer. Noncompetition covenants are valid to protect business goodwill in the sale of a company. In other contexts, they are generally disfavored as restraints of trade: courts generally enforce them for the duration of the business relationship, but provisions that extend beyond the termination of that relationship must be reasonable in scope, time, and territory. Also termed noncompetition agree ment; noncompete covenant; covenant not to compete; restriCtive covenant; promise not to compete; contract not to compete. [Cases: Contracts C=> 115.] positive covenant. A covenant that requires a party to do something (such as to erect a tence within a speci fied time). principal covenant. A covenant that relates directly to the principal matter of an agreement. Cf. auxiliary covenant. protection covenant. See PROTECTION COVENANT. restrictive covenant. See noncompetition covenant. (For the real-property sense, see restrictive covenant under COVENANT (4).) several covenant. A covenant that binds two or more covenantors separately. Also termed separate covenant. Cf. joint covenant. transitive covenant. A covenant whose duty ofperfor mance passes from the original covenantor to the cov enantor's representatives. Cf. intransitive covenant. 2. TREATY. 3. A common-law action to recover damages for breach of contract under seal. 4. A promise made in a deed or implied by law; esp., an obligation in a deed burdening or favoring a landowner. See contract under seal under CONTRACT. [Cases: Covenants C=> 1-84.] covenantal, adj. "A covenant is properly defined as a promise made in deed, although in practice the term is used rather more loosely to mean simply an obligation affecting a landowner whether created by deed or not." Peter Butt, Land Law 334-35 (2d ed. 1988). "In their nature, covenants are first cousins to easements appurtenant. The burdened land corresponds to a servient tenement, the benefitted land, to a dom inant tenement, In concept, the main difference between easements and covenants is that, whereas an easement allows its holder to go upon and to do something upon the servient tenement, the beneficiary of a covenant may not enter the burdened land, but may require the owner of that land to do, Of more likely not to do, something on that land," Roger A. Cunningham et aI., The Law of Property 8.13, at 467 (2d ed. 1993). affirmative covenant. An agreement that real property will be used in a certain way. An affirmative covenant is more than a restriction on the use of property. It requires the owner to undertake certain acts on the property. For a more general definition of this term, see affirmative covenant under COVENANT (1). covenant against encumbrances. (1807) A grantor's promise that the property has no visible or invis ible encumbrances . In a special warranty deed, the covenant is limited to encumbrances made by the grantor. Also termed general covenant against encumbrances. Cf. special covenant against encum brances. [Cases: Covenants 64.] covenant appurtenant (;J-par-t;J-n;mt). (1899) A covenant that is connected with the grantor's land; a covenant running with the land. Cf. covenant in gross. [Cases: Covenants C=:.J53-70.J covenant for further assurances. (18c) A covenant to do whatever is reasonably necessary to perfect the title conveyed if it turns out to be imperfect. See further assurance under ASSURANCE. [Cases: Covenants 44, 66.J covenant for possession. A covenant giving a grantee or lessee possession ofland. covenant for quiet enjoyment. (17c) 1. A covenant insuring against the consequences of a defective title or any other disturbance of the title. [Cases: Cov enants 65.] 2. A covenant ensuring that the tenant will not be evicted or disturbed by the grantor or a person having a lien or superior title . This covenant is sometimes treated as being synonymous with covenant ofwarranty. Also termed covenant ofquiet enjoyment. covenant for title. (I8c) A covenant that binds the grantor to ensure the completeness, security, and continuance of the title transferred . This covenant usu. includes the covenants for seisin, against encum brances, for the right to convey, for quiet enjoyment, and of warranty. [Cases: Covenants C::>38-48, 62-67.] covenant in gross. (17c) A covenant that does not run with the land. Cf. covenant appurtenant. covenant ofgood right to convey. See covenant of seisin. covenant ofhabitability (hab-;J-t;)-bil-;J-tee). See implied warranty ofhabitability under WARRANTY (2). covenant ofnonclaim. (1848) A covenant barring a grantor or the grantor's heirs from claiming title in the conveyed land. covenant ofquiet enjoyment. See covenant for quiet enjoyment. covenant ofseisin (see-zin). (ISc) A covenant, usu. appearing in a warranty deed, stating that the grantor has an estate, or the right to convey an estate, of the quality and size that the grantor purports to convey. For the covenant to be valid, the grantor must have both title and possession at the time of the grant. Also termed covenant ofgood right to convey; right-to convey covenant. [Cases: Covenants C=>40, 62.] covenant ofwarranty. (ISc) A covenant by which the grantor agrees to defend the grantee against any lawful or reasonable claim of superior title by a third party and to indemnify the grantee for any loss sustained ~21 by the claim. This covenant is sometimes treated as being synonymous with covenant for quiet enjoy ment. The covenant is not breached if the grantor fails to defend the grantee against an invalid claim. See WARRANTY (1). [Cases: Covenants ~46-48, 67.] covenant running with the land. (l8c) A covenant intimately and inherently involved with the land and therefore binding subsequent owners and successor grantees indefinitely. -Also termed real covenant. [Cases: Covenants C=53-70.J "The important consequence of a covenant running with the land is that its burden or benefit will thereby be imposed or conferred upon a subsequent owner of the property who never actually agreed to it. Running covenants thereby achieve the transfer of duties and rights in a way not per mitted by traditional contract law." Roger Bernhardt, Real Property in a Nutshell 212 (3d ed. 1993). covenant running with the title. 1. A covenant that relates to the land but has a specific or reasonably determinable expiration time. 2. See covenant running with the land. covenant to convey. A covenant in which the cove nantor agrees to transfer an estate's title to the cov enantee. covenant to renew. An executory contract that gives a lessee the right to renew the lease. covenant to stand seised (seezd). Archaic. A covenant to convey land to a relative . This covenant could not be used to convey land to a stranger; the only consid eration that supports the covenant is the relationship by blood or marriage. [Cases: Deeds C::c24.] future covenant. A covenant that can be breached only upon interference with the possession ofthe grantee or the grantee's successors . The covenants in this class are the covenant for further assurances, the covenant for quiet enjoyment, and the covenant of warranty. The distinction between future and present covenants becomes important in determining when the statute of limitations begins to run. Cf. present covenant. general covenant against encumbrances. See covenant against encumbrances. implied reciprocal covenant. A presumption that a promisee has, in return for a promise made respect ing land, impliedly made a promise to the promisor respecting other land. Also termed implied recip rocal servitude. personal covenant. A covenant that creates a personal right or obligation enforceable only between the cov enanting parties and that is not binding on the heirs or assigns of the parties. Cf. covenant running with the land. [Cases: Covenants ~1.] present covenant. A covenant that can be breached only at the time ofconveyance . 1he three covenants in this class are the covenant against encumbrances, the covenant of right to convey, and the covenant of seisin. Cf. future covenant. protection covenant. See PROTE

, and the covenant of seisin. Cf. future covenant. protection covenant. See PROTECTION COVENANT. coventurer real covenant. See covenant running with the land. restrictive covenant. (1811) 1. A private agreement, usu. in a deed or lease, that restricts the use or occu pancy of real property, esp. by specifying lot sizes, building lines, architectural styles, and the uses to which the property may be put. Some restrictive covenants, such as race-based restrictions on trans fers, are unenforceable but do not necessarily void the deed. Also termed restrictive covenant in equity; equitable easement; equitable servitude. [Cases: Cov enants 69.]2. See noncompetition covenant under COVENANT (1). right-to-convey covenant. See covenant ofseisin. special covenant against encumbrances. (1860) A grantor's promise that the property is free ofencum brances created by the grantor only, not the grantor's predecessors. See special warranty deed under DEED. Cf. covenant against encumbrances. [Cases: Covenants ~42,64.1 covenant, vb. (14c) To promise Of undertake in a covenant; to agree formally. covenantee (bv-<l-n<ln-tee). (17c) The person to whom a promise by covenant is made; one entitled to the benefit of a covenant. covenanter. See COVENANTOR. covenant marriage. See MARRIAGE (1). covenant ofgood right to convey. See covenant ofseisin under COVENANT (4). covenant of seisin. See COVENANT (4). covenantor (kav-<l-n<ln-t<lf or k<lv-<l-n,m-tor). (17c) The person who makes a promise by covenant; one subject to the burden of a covenant. -Also spelled covenanter. covenant rnnning with the land. See COVENANT (4). covenant to protect against drainage. See PROTECTION COVENANT. Coventry Act (kav-an-tree or kov-). Hist. An 1803 English statute establishing the death penalty for anyone who, with malice aforethought, did "cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member ofany subject; with the intention in so doing to maim or disfigure him." "[At common law,] an injury such as cutting off [a man's] ear or nose did not constitute mayhem ... , because it did not result in permanent disablement, but merely dis figured the victim. This was corrected by an early English statute. It seems that an assault was made upon Sir John Coventry on the street by persons who waylaid him and slit his nose in revenge for obnoxious words uttered by him in Parliament. This emphasized the weakness of the law of mayhem, and the so-called 'Coventry Act' was passed [in 1803]." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 239-40 (3d ed. 1982). coventurer (koh-ven-ch;Jr-;Jr). (1913) A person who undertakes a joint venture with one or more persons. Also termed co-adventurer. Cf. JOINT VENTURE. lCases: Joint Adventures cover, n. The purchase on the open market, by the buyer in a breach-of-contract dispute, of goods to substitute for those promised but never delivered by the seller. Under VCC 2-712, the buyer can recover from the seller the difference between the cost ofthe substituted goods and the original contract price. [Cases: Sales 418(7).] coverage, n. (1912) 1. Inclusion ofa risk under an insur ance policy; the risks within the scope ofan insurance policy. [Cases: Insurance (::::;>2091.] -cover, vb. dependent coverage. An insurance provision for pro tection ofan insured's dependents. full coverage. I nsurance protection that pays for the full amount ofa loss with no deduction. 2. The ratio between corporate pretax income and cor porate liability for bond interest payments. coverage opinion. See OPINION (2). coverage ratio. (1975) A measurement ofa firm's ability to cover its financing charges. cover-all clause. See MOTHER HUBBARD CLAUSE (2). cover-baron. See COVERT BARON. covered-interest arbitrage. See ARBITRAGE. covered wages. See WAGE. cover letter. See TRANSMITTAL LETTER. cover note. A written statement by an insurance agent confirming that coverage is in effect. The cover note is distinguished from a binder, which is prepared by the insurance company. covert baron (kav-art bar-;m). [Law French] Hist. The condition or status of a married woman at common law. Also written cover-baron. -Also termed covert de baron. "By marriage, the husband and Wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a femecovert; is said to be covert baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture." 1 William Blackstone, Commentaries on the Laws of England 430 (1765). covert-entry search warrant. See SEARCH WARRANT. coverture (kav-ar-char also -tyoor), n. Archaic. The condition ofbeing a married woman <under former law, a woman under coverture was allowed to sue only through the personality of her husband>. See feme covert under FEME. [Cases: Husband and Wife (::::;> -covert (k"v-art), adj. "Coverture, is a french word signifying any thing that covereth, as apparel!. a coverlet .... It is particularly applied in our common lawe, to the estate and condition of a maried woman, who by the lawes of our realme, is in (potestate viri) and therefore disabled to contract with any, to the preiudice of her selfe or her husband, without his consent and privity: or at the least, without his allowance and confirmation." John Cowell, The Interpreter (1607). "Coverture is by law applied to the state and condition of a married woman, who is sub potestati viri, (under the power of her husband) and therefore unable to contract with any to the damage of herself or husband, without his consent and privity, or his allowance and confirmation thereof. When a woman is married she is called a Femme couvert, and whatever is done concerning her during marriage is said to be done during coverture." The Pocket Lawyer and Family Conveyancer 96 (3d ed. 1833). cover-up, n. Concealment ofwrongdOing, esp. by a con spiracy of deception, nondisclosure, and destruction ofeVidence, usu. combined with a refusal to cooperate with investigators . A cover-up often involves obstruc tion ofjustice. cover up, vb. covin (kav-.m). Hist. A secret conspiracy or agreement between two or more persons to injure or defraud another. -Also spelled covine. "Covin is a secret assent determined in the hearts of two or more, to the prejudice of another: As if a tenant for term of life, or tenant in tail, will secretly conspire with another, that the other shall recover against the tenant for life the land which he holds, &c. in prejudice of him in the rever sion." Termes de la Ley 129 (lst Am. ed. 1812). covinous (kaV-<'l-ildS), ad;. Hist. Ofa deceitful or fraudu lent nature. cozen (k<lz-an), vb. Hist. To cheat or defraud. Also spelled cosen. cozening (kaz-;m-ing). Hist. A deceitful practice; the offense of cheating, or fraudulent dealing. Also spelled cosening. Cf. STELLIONATUS. "Cosening is an offence unnamed, whereby any thing is done guilefully in or out of contracts, which cannot be fitly termed by any special! name. It is called stellionatus in the civile law ...." John Cowell, The Interpreter(1607). C.P. abbr. COURT OF COMMON PLEAS. CPA. abbr. 1. See certified public accountant under ACCOUNTANT. 2. See continued-prosecution applica tion under PATENT APPLICATION. Cpc. abbr. Certificate of probable cause. See CERTIFI CATE OF APPEALABILITY. CPD. abbr. OFFICE OF COMMUNITY PLANNING AND DEVELOPMENT. CPI. abbr. CONSUMER PRICE INDEX. CPS. abbr. CHILD PROTECTIVE SERVICES. CPSC. abbr. CONSUMER PRODUCT SAFETY COMMIS SION. CPT. abbr. CARRIAGE PAID TO. CR. abbr. CURIA REGIS. crack. vb. Slang. 1. To open (a lock). 2. To decode (security information); esp., to decipher or discover (a code, a password, etc. needed to break into a computer, network, server, or database). Cf. HACK. 3. To bypass (an encryption or a security device, esp. one deSigned to prevent unauthorized access, as in a cable televi sion box, or copying, as in a DVD player). 4. To hack (a computer, network, server, or database) with the inten tion ofcausing damage or disruption. cracking, n. A gerrymandering technique in which a geo graphically concentrated political or racial group that is large enough to constitute a district's dominant force is broken up by district lines and dispersed through out two or more districts. Cf. PACKING; STACKING (2). [Cases: Elections l2(6).] craft union. See UNION. cramdown, n. (1954) Court confirmation of a Chapter II bankruptcy plan despite the opposition of certain creditors. Under the Bankruptcy Code, a court may confirm a plan -even ifit has not been accepted by all classes of creditors -ifthe plan (1) has been accepted by at least one impaired class, (2) does not discrimi nate unfairly, and (3) is fair and equitable. 11 USCA 1129(b). [Cases: Bankruptcy C;:>3563.] -cram down, vb: crash-and-dash. See RAM RAID. crashworthiness doctrine. (1969) Products liability. The principle that the manufacturer of a product will be held strictly liable for injuries occurring in a collision, even if the collision results from an independent cause, to the extent that a defect in the product causes injuries above and beyond those that would have occurred in the collision itself. -Also termed second-collision doctrine; second-impact doctrine. [Cases: Products Liability C;:>20.8.] crassa ignorantia (kras-a ig-na-ran-shee-a). Hist. Gross ignorance, esp. in circumstances where a person was able to acquire knowledge and should have done so. crassa negligentia (kras-a neg-li-jen-shee-a). [Latin] Hist. Crass negligence; gross negligence. "In the Civil Law: Crassa negligentia is termed magna culpa or lata culpa, and it is in some cases deemed equivalent to fraud or deceit .... In the Common Law: it is defined to be the want of that care which every man of common sense, under the circumstances, takes of his own property." Henry C. Adams, A Juridical Glossary 510 (1886). crastino (kras-ta-noh). [Law Latin] Hist. Tomorrow; on the morrow. The return day of writs, so-called because the court terms always began on a saint's day; writs were therefore returnable the day after. CRAT. abbr. Charitable-remainder annuity trust. See charitable remainder annuity trust under TRUST. creancer (kree-an-sJr). [Law French] Hist. A creditor. Also spelled creansour. create a blank. Parliamentary law. To amend a motion by striking out one or more terms and replacing them with blanks rather than different terms. See amendment by striking out and inserting under AMENDMENT (3). This form allows a vote on several competing proposals at one time, rather than the usual process ofvoting sepa rately upon each proposal. See BLANK (2). creationism. The teaching of the biblical version of the creation ofthe universe . The United States Supreme Court held unconstitutional a Louisiana law that forbade the teaching of the theory of evolution unless biblical creation was also taught. The Court found the law violated the Establishment Clause of the First Amendment because it lacked a "clear secular purpose." Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct 2573 (1987). See ANTI-EVOLUTION STATUTE. [Cases: Constitutional Law ~~,1354(2); Schools scientific creationism. A doctrine holding that the biblical account ofcreation is supported by scientific evidence. creation science. The interpretation ofscientific evidence, arguments, and knowledge to support creationism. See CREATIONISM. creative sentence. See alternative sentence under SENTENCE. creative work. See work ofauthorship under WORK (2). creativity. Copyright, The degree to which a work displays imaginativeness beyond what a person ofvery ordinary talents might create .

. Copyright, The degree to which a work displays imaginativeness beyond what a person ofvery ordinary talents might create . Labor and expense are not elements of creativity; for that reason, they are not protected by copyright. Feist Pubs. Inc. v. Rural Tel. Servo Co., 499 U.S. 340, 111 S.Ct. 1282 (1991). Cf. ORIG INALITY, SWEAT-OF-THE-BROW DOCTRINE. [Cases: Copyrights and Intellectual Property C=> 12.] "Where creativity refers to the nature of the work itself, originality refers to the nature of the author's contribution to the work. Thus, a public domain painting may evince great creativity, but if a copyright claimant adds nothing of his own to it, by way of reproduction or otherwise, then copyright will be denied on the basis of lack of original ity. Conversely, a work may be entirely the product of the claimant's independent efforts, and hence original, but may nevertheless be denied protection as a work of art if it is completely lacking in any modicum of creativity." 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 2.08[B][2], at 2-88 (Supp. 1995). creator. See SETTLOR (i). creature. See ANIMAL. creature of statute. (1854) A doctrine, governmental agency, etc. that would not exist but for a legislative act that brought it into being. credential. (usu. pI.) 1. A document or other evidence that proves one's authority or expertise, 2. A testimo nial that a person is entitled to credit or to the right to exercise official power. 3. The letter of credence given to an ambassador or other representative of a foreign country. [Cases: Ambassadors and Consuls C;:>4.] 4. Parliamentary law. Evidence of a delegate's entitle ment to be seated and vote in a convention or other deliberative assembly . Before the meeting begins, the evidence usu. takes the form ofa certificate or proof of election or appointment, which the delegate presents to a credentials committee so that the committee can list the delegate on its roster. During the meeting, the evidence usu, takes the form of a badge or card that the credentials committee issues to each delegate on its roster. See credentials committee under COMMIT TEE. -credential, vb. credentials committee. See COMMITTEE. credibility, n. (l6c) The quality that makes something (as a witness or some evidence) worthy of belief. [Cases: Criminal Law Evidence C;:>588.] -credible, adj. credible evidence. See EVIDENCE. 424 credible witness credible witness. See WITNESS. credit, n. (l6c) 1. Belief; trust <the jury gave credit to Benson's version>. 2. One's ability to borrow money; the faith in one's ability to pay debts <a customer with good credit>. 3. The time that a seller gives the buyer to make the payment that is due <30 days' credit>. 4. The availability offunds either from a financial institution or under a letter ofcredit <the bank extended a line of credit to the customer>. bank credit. Credit that a bank makes available to a borrower. consumer credit. Credit extended to an individual to facilitate the purchase of consumer goods and services. [Cases: Consumer Credit (;= 1.] installment credit. Consumer credit scheduled to be repaid in two or more payments, usu. at regular inter vals. The seller ordinarily exacts finance charges. non installment credit. Consumer credit arranged to be repaid in a single payment. Examples include doctors' and plumbers' bills. revolving credit. A consumer-credit arrangement that allows the borrower to buy goods or secure loans on a continuing basis as long as the outstanding balance does not exceed a specified limit. -Also termed open credit; revolving charge account. Cf. revolver loan under LOAN. [Cases: Consumer Credit (;=34.] 5. LETTER OF CREDIT <the bank issued a credit in favor ofthe exporter>. 6. A deduction from an amount due; an accounting entry reflecting an addition to revenue or net worth <confirm that the credit was properly applied to my account>. Cf. DEBIT. 7. TAX CREDIT <the $500 credit reduced their income-tax liability by $500>. accumulated-earnings credit. Tax. A deduction allowed in arriving at a corporation's accumulated taxable income . It offsets the base on which the tax is assessed by reducing the taxable base by the greater of$250,000 or the accumulated earnings retained for the reasonable needs of the corporation, reduced by the net capital gain. IRC (26 USCA) 535. See accu mulated-earnings tax under TAX. credit, vb. (17c) 1. To believe <the jury did not credit this testimony>. 2. To enter (as an amount) on the credit side of an account <the account was credited with $500>. creditable. 1. Worthy ofbeing believed; credible <credit able evidence>. 2. Capable ofbeing ascribed or credited <creditable service time>. 3. Reputable; respectable <creditable witness>. credit balance. Accounting. The status of an account when the sum of the credit entries exceeds the sum of the debit entries. credit bureau. (1874) An organization that compiles information on people's creditworthiness and publishes it in the form of reports that are used chiefly by mer chants and service-providers who deal directly with customers. The practices of credit bureaus are regu lated by federal (and often state) law. Most bureaus are members ofthe Associated Credit Bureaus ofAmerica. Cf. CREDIT-REPORTING BUREAU. [Cases: Credit Report ing Agencies 1-4.] credit card. An identification card used to obtain items on credit, usu. on a revolving basis. See revolving credit under CREDIT. Cf. DEBIT CARD. [Cases: Consumer Credit C-::8.] credit-card cramming. 1. A credit-card issuer's practice of charging consumers for optional goods or services that the consumers have not agreed to payor do not understand . For example, the credit-card crammer may offer the consumer a free service for a limited period without making it clear that ifthe service is not canceled when the period ends, it will be automatically renewed for a fee. [Cases: Consumer Credit C:;8.J 2. A single act ofcharging a consumer's credit card without authorization, particularly for goods or services that the consumer did not agree to or receive. [Cases: Consumer Credit credit-card crime. (1970) The offense of using a credit card to purchase something with knowledge that (1) the card is stolen or forged, (2) the card has been revoked or canceled, or (3) the card's use is unauthorized. [Cases: Consumer Credit (;=20.] credit freeze. See FREEZE. credit insurance. See INSlJRANCE. credit life insurance. See LIFE INSURANCE. credit line. See LINE OF CREDIT. credit memorandum. A document issued by a seller to a buyer confirming that the seller has credited (Le., reduced) the buyer's account because of an error, return, or allowance. credit mobilier. A company or association that carries on a banking business by making loans on the security of personal property. creditor. (15c) 1. One to whom a debt is owed; one who gives credit for money or goods. Also termed debtee. 2. A person or entity with a definite claim against another, esp. a claim that is capable of adjustment and liquidation. 3. Bankruptcy. A person or entity having a claim against the debtor predating the order for relief concerning the debtor. [Cases: Bankruptcy (;= 2822.] 4. Roman law. One to whom any obligation is owed, whether contractual or otherwise. Cf. DEBTOR. attaching creditor. A creditor who has caused an attachment to be issued and levied on the debtor's property. [Cases: Attachment C=>16.] bond creditor. A creditor whose debt is secured by a bond. catholic creditor. Scots law. A person who has a security interest in more than one piece ofthe debtor's property. certificate creditor. A creditor ofa municipal corpora tion who receives a certificate ofindebtedness rather than payment because the municipality cannot pay the debt. Cf. warrant creditor. 425 creditor dominii conditional creditor. Civil law, A creditor who has either a future right of action or a right of action in expectancy. creditor at large. A creditor who has not established the debt by reducing it to judgment, or who has not oth erwise secured a lien on any of the debtor's property. See unsecured creditor. domestic creditor. A creditor who resides in the same state or country as the debtor or the debtor's property. double creditor. A creditor who has a lien on two funds. Cf. single creditor. execution creditor. A judgment creditor who has caused an execution to issue on the judgment. [Cases: Execution (;:::::0'17,] foreign creditor. A creditor who resides in a different state or country from that of the debtor or the debtor's property. gap creditor. Bankruptcy. A creditor who extends credit to, lends money to, or has a claim arise against the debtor in the period between the filing ofan involun tary bankruptcy petition and the entry ofthe order for relief. -Under the Bankruptcy Code, a gap creditor's claim receives second priority, immediately below administrative claims. 11 USCA S02(f), S07(a)(2). [Cases: BankruptcyC:;:>2833.] general creditor. See unsecured creditor. hypothetical creditor. Bankruptcy. An actual or code created judicial-lien creditor or bona fide purchaser who establishes a bankruptcy trustee's status under the Bankruptcy Code's priority scheme, claiming property through the debtor at the time ofthe bank ruptcy filing. II USCA S44. -Also termed hypo theticallien creditor. [Cases: Bankruptcy C:;>2704, 270S.] joint creditor. A creditor who is entitled, along with another creditor, to demand payment from a debtor. judgment creditor. See JUDGMENT CREDITOR. junior creditor. A creditor whose claim accrued after that of another creditor; a creditor who holds a debt that is subordinate to another's. known creditor. A creditor whose identity or claim is either known or reasonably ascertainable by the debtor. -Known creditors are entitled to notice ofthe debtor's bankruptcy or corporate dissolution, as well as notice ofany deadline for filing proofs ofclaim. lien creditor. A creditor whose claim is secured by a lien on the debtor's property. UCC 9-102(a)(52). [Cases: Secured Transactions (;:::::0 140.] preferred creditor. A creditor with a superior right to payment, such as a holder of a perfected security interest as compared to a holder of an unsecured claim. [Cases: Secured Transactions 138-140, 168.] principal creditor. A creditor whose claim or demand greatly exceeds the claims ofother creditors. prior creditor. A creditor who is given priority in payment from the debtor's assets. secondary creditor. A creditor whose claim is subordi nate to a preferred creditor's. secured creditor. A creditor who has the right, on the debtor's default, to proceed against collateral and apply it to the payment of the debt. UCC 9-102-(a) (72). -Also termed secured party. '''Secured party' means (A) a person in whose favor a security interest is created or provided for under a security agreement, whether or not any obligation to be secured is outstanding; (B) a person that holds an agricultural lien: (C) a consignor; (0) a person to which accounts, chattel paper, payment intangibles, or promissory notes have been sold; or (E) if a security interest or agricultural lien is created or provided for in favor of a trustee, agent, col lateral agent, or other representative, that representative." UCC 91 02(a)(50). single creditor. In the marshaling of assets, a creditor with a lien on one fund. See RULE OF MARSHALING ASSETS. Cf. double creditor. specialty creditor. A creditor to whom an heir is liable for a decedent's debts to the extent of the land inher ited. Historically, unless the creditor obtained a judgment against the debtor before the debtor's death, the creditor's right of action on the debt was limited to the decedent's lawful heir. Ifthe debtor devised the land to a stranger, the creditor's claim was defeated. See HEIR (1). [Cases: Descent and Distribution C:;:> 126; Executors and Administrators ".r~~VJ. 'There were three exceptions to this rule that a fee simple estate was not liable to the creditors of the deceased. Debts due to the Crown and debts due to judgment creditors were enforceable against the land notwithstanding the death of the owner, and thirdly, if the fee simple tenant had in his lifetime executed a deed whereby he covenanted for himself and his heirs to pay a sum of money, the creditor (called a specialty creditor) could make the heir liable for the debt to the extent of the land which had descended to him. But this privilege of the specialty creditor was not at first enforceable against an equitable fee Simple, and it was strictly limited to a right of action against the he

itor was not at first enforceable against an equitable fee Simple, and it was strictly limited to a right of action against the heir of the deceased, so that the creditor was defrauded of his money Ifthe deceased devised his land to a stranger." C.C Cheshire, Modern Law ofReal Property 738 (3d ed. 1933). subsequent creditor. A creditor whose claim comes into existence after a given fact or transaction, such as the recording ofa deed or the execution of a voluntary conveyance. unsecured creditor. A creditor who, upon giving credit, takes no rights against specific property ofthe debtor, Also termed general creditor. See creditor at large. warrant creditor. A creditor ofa municipal corporation who is given a municipal warrant for the amount of the claim because the municipality lacks the funds to pay the debt. Cf. certificate creditor. [Cases: Municipal Corporations C:;:>896.] creditor beneficiary. See BENEFICIARY. creditor dominii (kred-i-tor da-min-ee-l). [Law Latin] Hist. The creditor who is entitled to ownership of an object; a secured creditor. "Creditor dominii .... In commodate the lender is creditor of the subject. and on the bankruptcy of the borrower may vindicate his right of property and recover the subject itself ...." John Trayner. Trayner's Latin Maxims 114 (4th ed. 1894). creditor's bill. (1826) An equitable suit in which a judgment creditor seeks to reach property that cannot be reached by the process available to enforce a judgment. -Also termed creditor's suit. [Cases: Debtor and Creditor creditor's claim. See CLAIM (5). creditors' committee. (1874) Bankruptcy. A committee comprisjng representatives ofthe creditors in a Chapter 11 proceeding, formed to negotiate the debtor's plan of reorganization. -Generally, a committee has no fewer than 3 and no more than 11 members and serves as an advisory body. 11 USCA 1102. [Cases: Bankruptcy (;::::>3024.] creditors' composition. See COMPOSITION (1). creditors' meeting. See MEETING. creditors' scheme of arrangement. See SCHEME OF ARRANGEMENT. creditor's suit. See CREDITOR'S BILL. credit plan. A financing arrangement under which a borrower and a lender agree to terms for a loan's repay ment with interest, usu. in installments. open-end credit plan. A plan under which a creditor reasonably expects repeated transactions, prescribes terms for those transactions, and includes a finance charge that may be periodically computed on the out standing balance. 15 USCA 1602(i). credit rating. An evaluation of a potential borrower's ability to repay debt, prepared by a credit bureau at the request ofa lender. [Cases: Credit Reporting Agencies (;::::>1-4.] credit report. 1. A credit bureau's report on a person's financial status, usu. including the approximate amounts and locations ofa person's bank accounts, charge accounts, loans, and other debts, bill-paying habits, defaults, bankruptcies, foreclosures, marital status, occupation, income, and lawsuits. See CREDIT BUREAU. 2. The report of a credit-reporting bureau, usu. including highly personal information gathered through interviews with a person's friends, neigh bors, and coworkers. See CREDIT-REPORTING BUREAU. [Cases; Credit Reporting Agencies credit-reporting bureau. (1904) An organization that, on request, prepares investigative reports not just on people's creditworthiness but also on personal infor mation gathered from various sources, including inter views with neighbors, friends, and coworkers. -These reports are used chiefly by employers (for prospective employees), insurance companies (for applicants), and landlords (for prospective tenants). -Also termed investigating bureau. Cf. CREDIT BUREAU. [Cases: Credit Reporting Agencies (;::::> 1-4.J creditrix (kred-;Hriks), n. [fro Latin credere "to lend, entrust"] Civil law. Archaic. A female creditor. credit sale. See SALE. credit service charge. See SERVICE CHARGE (2). credit-shelter trust. See bypass trust under TRUST. credit slip. A document that allows a store customer to either purchase another item or receive cash or credit for merchandise the customer has returned to the store. credit union. A cooperative association that offers low interest loans and other consumer banking services to persons sharing a common bond -often fellow employees and their family members. -Most credit unions are regulated by the National Credit Union Administration. State-chartered credit unions are also subject to regulation by the chartering state, and they may be regulated bystate bankingboards. [Cases: Building and Loan Associations C::;) 1-6,24-40.) "Credit unions were the last major thrift institutions developed in the United States .... What distinguished credit unions from mutual savings banks and savings and loan associations was their emphasis on a common bond of workers, church members, or people in a local area, wanting to borrow relatively small amounts at reasonable interest rates from each other. and help each other save to meet these short-term needs. Their goal was to provide a low interest rate alternative _.. to loan sharks and pawn brokers." William A. Lovett. Banking and Financial institu tions Law in a Nutshell 284 (1997). creditworthy, adj. (1924) (Of a borrower) financially sound enough that a lender will extend credit in the belief default is unlikely; fiscally healthy. -creditwor thiness, n. creeping acquisition. See ACQUISITJON. creeping tender offer. See creeping acquisition under ACQUISITION. C reorganization. See REORGANIZATION (2). crescendo rental. See RENTAL. cretion (kree-sh;m), n. [fro Latin cernere "to decide") Roman law. 1. A method or form ofaccepting an inher itance by an heir who is appointed in a testament. - Cretion usu. had to be declared within 100 days from the date an heir received notice ofthe appointment. "In the old law it was the practice to fix a time limit, usually of one hundred days, within which the heir was to make a formal acceptance, with the addition that if he failed to do so, he was to be disinherited and a substitute was to take the inheritance in his place. This formal acceptance was known as cretio from the Latin verb cernere to decide. The practice had fallen into disuse before Justinian, who formally abolished it." R.W. Lee, The Elements of Roman Law 199 (4th ed. 1956). 2. The period within which an heir might decide whether to accept an inheritance. -Also termed (in Latin) cretio (kree-shee-oh). cretionary (kree-sh;m er-ee), adj. crew member. See SEAMAN. CRF. abbr. CRIMINAL-REFERRAL FORM. crib, n. [Origin unknown] Hist. An enclosure at the side ofa court where the apprentices stood to learn the law. -For a full historv ofthis term and its variants, see J.H. Baker, "The Pecu~es," in The Legal Profession and the Common Law 171, 173 (1986). Also spelled cribbe; crubbe. Also termed pecune. cri de pais. See CRY DE PAIS. crier (krI-ar). (15c) 1. An officer ofthe court who makes public pronouncements as required by the court. Cf. BAILIFF (1). -Also termed court crier. [Cases: Courts C=>58.] 2. An auctioneer. Also spelled cryer. criez la peez (krI-eez 1.'1 pees). [Law French] Hist. Rehearsethe concord (or peace). -This phrase was used to confirm the conveyance of land by fine. The serjeant or countor in attendance read the phrase aloud in court. See FINE (1). crim. con. abbr. CRIMINAL CONVERSATION. crime. (14c) An act that the law makes punishable; the breach ofa legal duty treated as the subject-matter ofa criminal proceeding. -Also termed criminal wrong. See OFFENSE (1). "Understanding that the conception of Crime, as distin guished from that of Wrong or Tort and from that of Sin, involves the idea of injury to the State of collective com munity, we first find that the commonwealth, in literal conformity with the conception, itself interposed directly, and by isolated acts, to avenge itself on the author of the evil which it had suffered." Henry S. Maine, Ancient Law 320 (17th ed. 1901). "It is a curious fact that all the minor acts enumerated in the penal code of a state like, say, New York are in law called crimes, which term includes both murder and overparking. It is a strong term to use for the latter, and of course the law has for centuries recognized that there are more serious and less serious crimes. At the common law, however, only two classes were recognized, serious crimes or felonies, and minor crimes or misdemeanors." Max Radin, The Law and You 91 (1948). administrative crime. (1943) An offense consisting ofa violation ofan administrative rule or regulation that carries with it a criminal sanction. capital crime. See capital offense under OFFENSE (1). commercial crime. (1900) A crime that affects commerce; esp., a crime directed toward the property or revenues ofa commercial establishment. -Examples include robbery ofa business, embezzle ment, counterfeiting, forgery, prostitution, illegal gambling, and extortion. See 26 CFR 403.38. common-law crime. (1827) A crime that is punish able under the common law, rather than by force of statute. Cf. statutory crime. complainantless crime. See victimless crime. computer crime. (1971) A crime involving the use of a computer, such as sabotaging or stealing electroni cally stored data. -Also termed cybercrime. [Cases: Telecommunications C=> 1342, 1348.] consensual crime. See victimless crime. constructive crime. A crime that is built up or created when a court enlarges a statute by altering or straining the statute's language, esp. to drawing unreasonable implications and inferences from it. -Also termed implied crime; presumed crime. continuous crime. (1907) 1. A crime that continues after an initial illegal act has been consummated; a crime that involves ongoing elements. -An example is illegal U.S. drug importation. The criminal act is completed not when the drugs enter the country, but when the drugs reach their final destination. 2. A crime (such as driving a stolen vehicle) that continues over an extended period. Cf. instantaneous crime. corporate crime. (l934) A crime committed by a cor poration's representatives acting on its behalf. Examples include price-fixing and consumer fraud. Although a corporation as an entity cannot commit a crime other than through its representatives, it can be named as a criminal defendant -Also termed organizational crime. Cf. occupational crime. [Cases: Corporations C=>526.] credit-card crime. See CREDIT-CARD CRIME. crime against nature. See SODOMY. crime against the environment. See ENVIRONMENTAL CRIME. crime malum in se. See MALUM IN SE. crime malum prohibitum. See MALUM PROHIBITUM. crime ofomission. (I8c) An offense that carries as its material component the failure to act. crime ofpassion. (I8c) A crime committed in the heat of an emotionally charged moment, with no oppor tunity to reflect on what is happening. See HEAT OF PASSION. crime ofviolence. See violent crime. crime without victims. See victimless crime. cybercrime. See computer crime. economic crime. A nonphysical crime committed to obtain a financial gain or a professional advantage. 'There are two major styles of economic crime. The first consists of crimes committed by businessmen as an adjunct to their regular business activities. Businessmen's responsibilities give them the opportunity, for example, to commit embezzlement, to violate regulations directed at their areas of business activity, or to evade the payment of taxes. This style of economic crime is often called white collar crime. The second style of economic crime is the provision of illegal goods and services or the provision of goods and services in an illegal manner. Illegal provi sion of goods and services requires coordinated economic activity similar to that of normal business, but all of those engaged in it are involved in crime. The madam operat ing a brothel has many concerns identical to the manager of a resort hotel, and the distributor of marijuana must worry about the efficacy of his distribution system just as does a distributor of any other product. This type of economic crime is often called organized crime because the necessity of economic coordination outside the law leads to the formation of criminal groups with elaborate organizational customs and practices." Edmund W. Kitch, "Economic Crime," in 2 Encyclopedia ofCrime and justice 670,671 (Sanford H. Kadish ed., 1983). environmental crime. See ENVIRONMENTAL CRIME. crime 428 expressive crime. A crime committed for the sake of the crime itself, esp. out offrustration, rage, or other emotion rather than for financial gain. Cf. instrumen tal crime. federal crime.

rage, or other emotion rather than for financial gain. Cf. instrumen tal crime. federal crime. See FEDERAL CRIME. general-intent crime. A crime that involves performing a particular act without intending a further act or a further result. [Cases: Criminal Law C'-:;)20.] hate crime. (1984) A crime motivated by the victim's race, color, ethnicity, religion, or national origin. Certain groups have lobbied to expand the defini tion by statute to include a crime motivated by the victim's disability, gender, or sexual orientation. Cf. hate speech under SPEECH. [Cases: Civil Rights 1808; Sentencing and Punishment (.=70, 753.J high crime. (17c) A crime that is very serious, though not necessarily a felony. _ Under the U.S. Constitu tion, a government officer's commission ofa "high crime" is, along with treason and bribery, grounds for removal from office. U.S. Const. art. II, 4. See IMPEACHABLE OFFENSE. honor crime. A crime motivated by a desire to punish a person who the perpetrator believes has injured a person's or group's sense ofhonor. -The term is most often applied to crimes committed against Muslim women by members oftheir own families for behavior that leads to perceived social harm, esp.loss offamily honor. The term also extends to non-Muslims and covers many acts ofviolence, including assault, rape, infanticide, and murder. When the crime involves a death, it is also termed honor killing. implied crime. See constructive crime. inchoate crime. See inchoate offense under OFFENSE (1). index crime. See index offense under OFFENSE (1). infamous crime (in-f"-m,,s). (16c) 1. At common law, a crime for which part ofthe punishment was infamy, so that one who committed it would be declared ineli gible to serve on a jury, hold public office, or testify. -Examples are perjury, treason, and fraud. [Cases: Jury (;=;;45; Officers and Public Employees (;:= 31.] 2. A crime punishable by imprisonment in a peni tentiary. -The Fifth Amendment requires a grand jury indictment for the prosecution of infamous (or capital) crimes, which include all federal felony offenses. See indictable offense under OFFENSE (1). cr. noninfamous crime. "At common law an infamous crime was one ... inconsis tent with the common principles of honesty and humanity. Infamous crimes were treason, felony, all offenses found in fraud and which came within the general notion of the crimen falSi of the Civil law, piracy, swindling, cheating, barratry, and the bribing of a witness to absent himself from a trial, in order to get rid of his evidence." Justin Miller, Handbook ofCriminai Law 8, at 25 (1934). instantaneous crime. (1887) A crime that is fully completed by a single act, as arson or murder, rather than a series of acts. -The statute of limitations for an instantaneous crime begins to run with its completion. Cf. continuous crime. instrumental crime. A crime committed to further another end or result; esp., a crime committed to obtain money to purchase a good or service. Cf. expressive crime. international crime. See INTERNATIONAL CRIME. major crime. See FELONY (1). noninfamous crime. A crime that does not qualify as an infamous crime. Cf. infamous crime. occupational crime. A crime that a person commits for personal gain while on the job. Cf. corporate crime. organizational crime. See corporate crime. organized crime. See ORGANIZED CRIME. personal-condition crime. See status crime. personal crime. A crime (such as rape, robbery, or pick pocketing) that is committed against an individual's person. political crime. See POLITICAL OFFENSE. predatory crime. A crime that involves preying upon and victimizing individuals. -Examples include robbery, rape, and carjacking. preliminary crime. See inchoate offense under OFFENSE (1). presumed crime. See constructive crime. quasi-crime. (18c) Hist. 1. An offense not subject to criminal prosecution (such as contempt or violation of a municipal ordinance) but for which penalties or forfeitures can be imposed. _ The term includes offenses that give rise to qui tam actions and forfei tures for the violation of a public duty. 2. An offense for which someone other than the actual perpetrator is held liable, the perpetrator being presumed to act on the command ofthe responsible party. See quasi delict (1) under DELICT. serious crime. 1. See serious offense under OFFENSE (1). 2. See FELONY (1). signature crime. (1974) A distinctive crime so similar in pattern, scheme, or modus operandi to previous crimes that it identifies a particular defendant as the perpetrator. [Cases: Criminal Law C='369.15.] spontaneous crime. A criminal act that occurs suddenly and without premeditation in response to an unfore seen stimulus. -For example, a husband who dis covers his wife in bed with another man and shoots him could be said to have committed an effectively spontaneous crime. status crime. (1961) A crime ofwhich a person is guilty by being in a certain condition or ofa specific char acter. -An example ofa status crime is vagrancy. Also termed status offense; personal-condition crime. [Cases: Criminal Law~26.J statutory crime. (1940) A crime punishable by statute. Cf. common-law crime. [Cases: Criminal Law (:::'::, 21.1 429 street crime. (1966) A crime generally directed against a person in public, such as mugging, theft, or robbery. Also termed visible crime. strict-liability crime. A crime that does not require a mens rea element, such as traffic offenses and illegal sales ofintoxicating liquor. [Cases: Criminal Law Cc'=' 21.] substantive crime. See substantive offense under OFFENSE (1). vice crime. A crime of immoral conduct, such as gambling or prostitution. victimless crime. (1964) A crime that is considered to have no' direct victim, usu. because only consenting adults are involved. -Examples are possession of illicit drugs and deviant sexual intercourse between consenting adults. Also termed consensual crime; crime without victims; complainantless crime. "When a man's house has been robbed or his brother murdered, he is likely to take this complaint vigorously to the police and demand action. His presence on the scene dramatizes the need for law enforcement and gives sense and purpose to the work of the police and district attorney. In contrast, the absence of a prosecuting witness surrounds 'crimes without victims' with an entirely different atmo sphere. Here it is the police who must assume the initiative. If they attempt to work without the aid of informers, they must resort to spying, and this spying is rendered all the more distasteful because what is spied upon 15 sordid and pitiable." Lon L. Fuller, Anatomy of the Law44 (1968). violent crime. (18c) A crime that has as an element the use, attempted use, threatened use, or substan tial risk ofuse ofphYSical force against the person or property ofanother. 18 USCA 16; USSG 2El.3. Also termed crime ofviolence. visible crime. See street crime. war crime. See WAR CRIME. white-collar crime. See WHITE-COLLAR CRIME. crime against humanity. Int'llaw. A brutal crime that is not an isolated incident but that involves large and systematic actions, often cloaked with official author ity, and that shocks the conscience of humankind. Among the specific crimes that fall within this category are mass murder, extermination, enslavement, depor tation, and other inhumane acts perpetrated against a population, whether in wartime or not. See Statute of the International Criminal Court, art. 3 (37 ILM 999). crime against international law. See CRIME AGAINST THE LAW OF NATIONS. crime against peace. Int'llaw. An international crime in which the offenders plan, prepare, initiate, or wage a war ofaggression or a war in violation ofinternational peace treaties, agreements, or assurances. crime against the law of nations. Int'llaw. L A crime punishable under internationally prescribed criminal law or defined by an international convention and required to be made punishable under the criminal law ofthe member states. 2. A crime punishable under international law; an act that is internationally agreed crimen to be of a criminal nature, such as genocide, piracy, or engaging in the slave trade. -Also termed crime against international law. crime against the person. See CRIMES AGAINST PER SONS. crime-fraud exception. (1973) The doctrine that neither the attorney-client privilege nor the attorney-work product privilege protects attorney-client communi cations that are in furtherance ofa current or planned crime or fraud. Clark v. United States, 289 U.S. 1, 53 S.Ct. 465 (1933); In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032 (2d Cir. 1984). [Cases: Criminal Law (;:J627.5(6); Federal Civil Procedure (;:::,1604(1); Pretrial Procedure Privileged Communications and Confidentiality ~154.] crime insurance. See INSURANCE. crime malum in se. See MALUM IN SE. crime malum prohibitum. See MALUM PROHIBITUM. crimen (krI-man), n. [Latin]l. An accusation or charge ofa crime. 2. A crime. PI. crimina (krim-a-na). crimen expilatae hereditatis (krI-mm eks-p.:>-lay-tee ha-red-i-tay-tis). Roman law. A false claimant's willful spoliation ofan inheritance. crimen falsi (krI-man fal-51 or fawl-sI). [Latin "the crime of falSifying") 1. A crime in the nature of perjury. -Also termed falsum. 2. Any other ofiense that involves some element of dishonesty or false statement. See Fed. R. Evid. 609(a)(2). [Cases: Wit nesses (;:J337(12).] "The starting point [for perjury] seems to have been the so-called crimen falSi, --crime of falsifying. In the begin ning, perhaps, one convicted of perjury was deemed too untrustworthy to be permitted to testify in any other case, and the idea grew until the term 'crimen falsI' included any crime involving an element of deceit. fraud or corruption." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 26 (3d ed.1982). crimen feloniae imposuit (kn-m.:>n fa-Ioh-nee-ee im-poz-ya-wit). To accuse or charge with a felony. crimenfurti (kn-man far-tr). [Latin "the crime of stealing") See THEFT. crimen incendii (krI-man in-sen-dee-r). [Latin "the crime ofburning"] See ARSON. crimen innominatum (krI-man i-nom-a-nay-tam). [Latin "the nameless crime"] See SODOMY. crimen majestatis (kri-man maj-.:>-stay-tis). [Latin "crime against majesty"] Hist. High treason; any crime against the king's person or dignity; LESE MAJESTY. -Under Roman law, crimen majestatis denoted any enterprise by a Roman citizen or other person against the republic or the emperor. Also termed crimen laesae majestatis. See LESE MAJESTY. 0: PERDUELLIO. crimen plagii (krI-man play-jee-r). [Latin] Roman law. See PLAGIUM. crimen raptus (krI-man rap-tas). [Latin "the crime of rape") See RAPE. crimen repetundarum (kn-mitn rep-it-t;,n-dair-;,m). [Latin "accusation of (money) to be repaid"] Roman law. 1. A charge ofextortion brought against a Roman provincial governor. 2. Any act of misgovernment or oppression on the part of a magistrate or official. crimen roberiae (kn-mitn rit-beer-ee-ee). [Latin "the crime of robbery"] ROBBERY. crime ofomission. See CRIME. crime ofpassion. See CRIME. crime ofviolence. See violent crime under CRIME. crimes against persons. (1827) A category of criminal offenses in which the perpetrator uses or threatens to use force . Examples include murder, rape, aggravated assault, and robbery. -Also termed crimes against the person. Cf. offense against the person under OFFENSE (1). crimes against property. (1827) A category ofcriminal offenses in which the perpetrator seeks to derive an unlawful benefit from or do damage to -another's property without the use or threat offorce . Examples include burglary, theft, and arson (even though arson may result in injury or death). -Also termed property

include burglary, theft, and arson (even though arson may result in injury or death). -Also termed property crimes. Cf. offense against property under OFFENSE (1). crimes against the person. See CRIMES AGAINST PERSONS. crime score. (1952) A number assigned from an estab lished scale, indicating the relative seriousness of an offense based on the nature of the injury or the extent of property damage . Prosecutors use crime scores and defendant scores to promote uniform treatment of similar cases and to assess which cases need extensive pretrial preparation. Cf. DEFENDANT SCORE. crime statistics. Figures compiled by a governmental agency to show the incidence ofvarious types ofcrime within a defined geographic area during a specified time. crime without victims. See victimless crime under CRIME. crimina extraordinaria (krim-;)-n;) ek-stror-dCl-nair ee-a). [Latin] Roman law. Extraordinary crimes; crimes not brought before a quaestio perpetua . These crimes carried no fixed penalty and were punished according to the judge's discretion. criminal, adj. (I5c) 1. Having the character of a crime; in the nature of a crime <criminal mischief>. 2. Con nected with the administration of penal justice <the criminal courts>. criminal, n. (17c) 1. One who has committed a criminal offense. 2. One who has been convicted ofa crime. career criminal. See RECIDIVIST. dangerous criminal. (18c) A criminal who has either committed a violent crime or used force in trying to escape from custody. episodic criminal. (1976) 1. A person who commits crimes sporadically. 2. A person who commits crimes only during periods of intense stress, as in the heat of passion. habitual criminal. See RECIDIVIST. state criminal. 1. A person who has committed a crime against the state (such as treason); a political criminal. 2. A person who has committed a crime under state law. criminal action. See ACTION (4). criminal anarchy. See ANARCHY. criminal anthropology. See CRIMINOLOGY. criminal assault. See ASSAULT. criminal attempt. See ATTEMPT. criminal bankruptcy. See bankruptcy fraud under FRAUD. criminal battery. See BATTERY (1). criminal behavior. Conduct that causes social harm and is defined and punished by law. criminal capacity. See CAPACITY (3). criminal charge. See CHARGE (1). criminal code. See PENAL CODE. criminal coercion. See COERCION. criminal conspiracy. See CONSPIRACY. criminal contempt. See CONTEMPT. criminal conversation. Archaic. A tort action for adultery, brought by a husband against a third party who engaged in sexual intercourse with his wife . Criminal conversation has been abolished in most jurisdictions. -Abbr. crim. con. See HEARTBALM STATUTE. [Cases: Husband and Wife <::::=340-354.J "An action (whether of trespass or case is uncertain, but probably trespass) formerly lay against one who had com mitted adultery with the wife of the plaintiff. It was known as an action for criminal conversation. The wife's consent was irrelevant. The action was distinct from that of entice ment: one may commit adultery without enticing a wife away from her husband. The action was no doubt a neces sity when divorce could only be obtained by Act of Parlia ment: as Parliament was not a tribunal suitable for trying allegations of adultery it was reasonable to require the petitioner to establish the truth of his allegations before a court of law. The action might also have been justified on the ground that the plaintiff is in substance complaining of the invasion of privacy of his marriage, and the insult thereby caused to his honour as a husband." R.F.V. Heuston, Salmond on the Law of Torts 358 (17th ed. 1977). criminal court. See COURT. criminal-court judge. See JUDGE. criminal damage to property. (1946) 1. Injury, destruc tion, or substantial impairment to the use ofproperty (other than by fire or explosion) without the consent of a person having an interest in the property. [Cases: Malicious Mischief C=:> 1.] 2. Injury, destruction, or substantial impairment to the use of property (other than by fire or explOSion) with the intent to injure or defraud an insurer or lienholder. Cf. ARSON. criminal defendant. One who is accused in a criminal proceeding. 431 criminal desertion. See DESERTION. criminal forfeiture. See FORFEITURE. criminal fraud. See FRAUD. criminal homicide. See HOMICIDE. criminal infringement. See INFRINGEMENT. criminal instrument. (1901) l. Something made or adapted for criminal use. Model Penal Code 5.06(1) (a). 2. Something commonly used for criminal purposes and possessed under circumstances showing an unlawful purpose. Model Penal Code 5.06(I)(b). Also termed instrument ofcrime. criminal-instrumentality rule. (1942) The principle that when a criminal act is committed, that act -rather than the victim's negligence that made the crime possible - will be considered to be the crime's proxi mate cause. criminal intent. 1. See INTENT (1). 2. MENS REA. criminalism. l. A pathological tendency toward crim inality. 2. Archaic. The branch of psychiatry dealing with habitual criminals. criminalist (krim-a-nal-ist). L A person who practices criminalistics as a profession. 2. Archaic. One versed in criminal law. 3. Archaic. A psychiatrist who treats criminals. 4. Archaic. A habitual criminal. criminalistics (krim-G-nG-lis-tiks), n. (1943) The science of crime detection, usu. involving the subjection of physical evidence to laboratory analysis, including bal listic testing, blood-fluid and tissue analysis, and other tests. Cf. CRIMINOLOGY. -criminalistic, adj. crimina liter (krim-G-nay-IG-tGr), adv. [Latin] Criminally. Cf. CIVILITER (1). criminality (krim-d-nal-G-tee). (17c) L The state or quality of being criminal. 2. An act or practice that constitutes a crime. See DOUBLE CRIMINALITY. criminalization (krim-G-nal-a-zay-shGn), n. (1945) 1. The act or an instance of making a previously lawful act criminal, usu. by passing a statute. Cf. DECRIMI NALIZATION; CIVILIZATION. [Cases: Criminal Law 3.] 2. The process by which a person develops into a criminal. criminalize (krim-G-nal-Iz), vb. To make illegal; to outlaw. criminal jurisdiction. See JURISDICTION. criminal justice. (I6c) 1. The methods by which a society deals with those who are accused ofhaving committed crimes. See LAW ENFORCEMENT (1). Cf. CIVIL JUSTICE. 2. The field of study pursued by those seeking to enter law enforcement as a profession . Many colleges oiter degrees in criminal justice, typically after two to four years ofstudy. -Also termed (in sense 2) police science; law enforcement. criminal-justice system. (1929) The collective institu tions through which an accused offender passes until the accusations have been disposed ofor the assessed punishment concluded . The system typically has criminal protector three components: law enforcement (police, sheriffs, marshals), the judicial process (judges, prosecutors, defense lawyers), and corrections (prison officials, probation officers, and parole officers). Also termed law-enforcement system. criminal law. (18c) The body of law defining offenses against the community at large, regulating how suspects are investigated, charged, and tried, and establishing punishments for convicted offenders. Also termed penal law. 'The criminal law represents the pathology of civilization." Morris R. Cohen, Reason and Law 70 (1961). "Often the term 'criminal law' is used to include all that is involved in 'the administration of criminal justice' in the broadest sense. As so employed it embraces three different fields, known to the lawyer as (1) the substantive criminal law, (2) criminal procedure, and (3) special problems in the administration and enforcement of criminal justice.... The phrase 'criminal law' is more commonly used to include only that part of the general field known as the substan tive criminal law ...." Rollin M. Perkins &Ronald N. Boyce, Criminal Law 1, 5 (3d ed. 1982). criminal lawyer. See LAWYER. criminal letter. Scots law. A summons. criminal libel. See LIBEL. criminally negligent homicide. See negligent homicide under HOMICIDE. criminal miscarriage. Hist. See ABORTION (1). criminal mischief. See MALICIOUS MISCHIEF. criminal neglect of family. See NONSUPPORT. criminal negligence. See NEGLIGE!IICE. criminal nonsupport. See NO!llSUPPORT. criminal offense. See OFFENSE (1). criminal operation. Hist. ABORTION (1). criminal plea. See PLEA (1). criminal policy. (1893) The branch of criminal science concerned with protecting against crime . It draws on information provided by criminology, and its subjects for investigation are (1) the appropriate measures of social organization for preventing harmful activities, and (2) the treatment to be accorded to those who have caused harm, i.e., whether the offenders should receive warnings, supervised probation, or medical treatment, or whether they should suffer serious deprivations of life or liberty such as imprisonment or capital punish ment. criminal possession. See POSSESSIO!ll. criminal procedure. (18c) The rules governing the mech anisms under which crimes are investigated, pros ecuted, adjudicated, and punished . It includes the protection ofaccused persons' constitutional rights. criminal proceeding. See PROCEEDING. criminal process. See PROCESS. criminal prosecution. See PROSECUTION (2). criminal protector. (1978) An accessory after the fact to a felony; one who aids or harbors a wrongdoer after the commission of a crime. [Cases: Compounding Offenses '>3.5; Criminal LawC=74.J criminal-referral form. A form once required by federal regulatory authorities (from 1988 to 1996) for reporting every instance when a bank employee or affiliate com mitted or aided in committing a crime such as credit card fraud, employee theft, or check-kiting . This form, like the suspicious-transaction report, has since been superseded by the suspicious-activity report. Abbr. CRF. See SUSPICIOUS-ACTIVITY REPORT. criminal registration. See REGISTRATION (1). criminal responsibility. 1. See RESPONSIBILITY (2). 2. See RESPONSIBILITY (3). criminal sanction. See SANCTION. criminal science. (1891) The study of crime with a view to discovering the causes ofcriminality, devising the most effective methods of reducing crime, and perfecting the means for dealing with those who have committed crimes. The three main branches ofcriminal science are criminology, criminal policy, and criminal law. criminal sexual conduct in the first degree. See FIRST DEGREE SEXUAL CONDUCT. criminal solicitation. See SOLICITATION (2). criminal statute. See STATUTE. criminal syndicalism. See SYNDICALISM. criminal term. See TERM (5). criminal trespass. See TRESPASS. criminal wrong. See CRIME. criminate, vb. See INCRIMINATE. crimination (krim-<l-nay-sh,m), n. 1. INCRIMINATION. 2. An accusation or strong censure. criminative (krim-<l-nay-tiv), adj. Of, relating to, or involving incrimination or accusation. Cf. INFIRMA TIVE. criminogenic (krim-<l-nJ-jen-ik), adj. Tending to cause crime or criminality. -criminogenesis, n. criminology (krim-<l-nol-J-jee), n. (1872) The study of crime and criminal punishment as social phenomena; the study of the causes of crime and the treatment of offenders, comprising (1) criminal biology, which examines causes that may be found in the mental and physical constitution of an offender (such as heredi tary tendencies and physical defects), and (2) criminal SOciology, which deals with inquiries into the effects of environment as a cause of criminality. -Also termed criminal anthropology. Cf. CRIMINALISTICS; PENOLOGY. criminological (krim-J-n<l-loj-a-kal), adj. -criminologist, n. comparative criminology. The scholarly study of the similarities and differences between the criminal justice systems ofdifferent nations. environmental criminology. The scholarly study of areas where crime occurs and of why offenders are active in those areas. -Also termed geography of crime; ecology ofcrime. crimping. Hist. Ihe offense of decoying and confin ing persons to force them into military service. Cf. IMPRESSMENT (3). criss-cross agreement. See cross-purchase agreement under AGREEMENT

f. IMPRESSMENT (3). criss-cross agreement. See cross-purchase agreement under AGREEMENT. cdt. (1985) An adherent to the Critical-legal-studies school ofthought. Also termed CLSer; Critic; critter. fem-crit. A feminist adherent ofcriticallegaJ studies. critical evidence. See EVIDENCE. Critical Legal Studies. (1978) 1. A school of thought advancing the idea that the legal system perpetuates the status quo in terms of economics, race, and gender by using manipulable concepts and by creating an imagi nary world of social harmony regulated by law . The Marxist wing of this school focuses on socioeconomic issues. Fem-crits emphasize gender hierarchy, whereas critical race theorists focus on racial subordination. See fem-erit under CRlT; CRITICAL RACE THEORY. 2. The body of work produced by adherents to this school of thought. -Abbr. CLS. critical limitation. Patents. A limitation essential either to the operativeness of an invention or to the patent ability of a patent claim for the invention. [Cases: Patents (~165(2).] Critical Race Theory. (1989) 1. A reform movement within the legal profession, particularly within academia, whose adherents believe that the legal system has disempowered racial minorities . The term first appeared in 1989. Critical race theorists observe that even ifthe law is couched in neutral language, it cannot be neutral because those who fashioned it had their own subjective perspectives that, once enshrined in law, have disadvantaged minorities and even perpetuated racism. 2. The body of work produced by adherents to this theory. Abbr. CRT. critical stage. (1962) Criminal procedure. A point in a criminal prosecution when the accused's rights or defenses might be affected by the absence of legal representation . Under the Sixth Amendment, a critical stage triggers the accused's right to appointed counseL Examples ofcritical stages include preliminary hearings, jury selection, and (of course) trial. C( ACCU SATORY STAGE. [Cases: Criminal Law C=17l8.] critter. See CRlT. crop insurance. See INSURANCE. crop rent. See RENT (1). crops. Products that are grown, raised, and harvested . Crops usu. are from the soil, but fruit grown on trees are also considered crops. [Cases: Crops ~I.] annual crops. 1. Crops that must be planted each year, such as cotton, wheat, barley, corn, carrots, potatoes, and melons. 2. Crops for which the produce in any single year is mainly the result of attention and care exerted in the same agricultural year, such as hops and sugar cane. away-going crops. A tenant's crops that were sown and will not be ready to harvest before the tenancy expires. The tenant retains the ownership of the crop after the tenancy expires. [Cases: Landlord and Tenant 139(2}.] basic crops. Crops (such as wheat and corn) that are usu. subject to government-price supports. growing crops. Crops that are in the process ofgrowth. Growing crops are goods under VCC 2-105(1). Judicial decisions vary on the growth stage at which a crop becomes a growing crop and on whether pas turage grass is a growing crop. Cf. FARM PRODUCT. [Cases: Crops C=c 1.] standing crops. Crops that have not been harvested or otherwise severed from the land. [Cases: Crops cross, n. L CROSS-EXAMINATION. 2. A sale of a large amount of publicly traded stock between two private parties. Although the transaction does not happen on the exchange floor, it typically requires exchange permission. cross-action. 1. See ACTION (4). 2. See CROSS-CLAIM. cross-appeal. See APPEAL. cross-bill. See BILL (2). cross-claim, n. (1825) A claim asserted between code fendants or coplaintiffs in a case and that relates to the subject ofthe original claim or counterclaim. See Fed. R. Civ. P. 13(g). Also termed cross-action; cross-suit. Cf. COUNTERCLAIM. [Cases: Federal Civil ProcedureC=c 786; Pleading C=c147,148,149; Set-off and Counterclaim cross-claim, vb. -cross-claimant, n. "The courts have not always distinguished clearly between a cross-claim and a counterclaim, and have used one name where the other is proper under the rules, perhaps because in some states, and in the old equity practice, the term cross-complaint or cross-bill is used for what the rules regard as a counterclaim. Under Rule 13 a counterclaim is a claim against an opposing party, while a cross-claim is against a co-party. Further there is not the same freedom in asserting cross-claims that the rules provide for coun terclaims. An unrelated claim against an opposing party may be asserted as a permissive counterclaim, but only claims related to the subject matter of the original action. or property involved therein. are appropriate as cross claims." Charles Alan Wright, The Law of Federal Courts 80. at 574 (5th ed. 1994). cross-collateral. See COLLATERAL. cross-collateral clause. (1965) An installment-contract provision allOWing the seller, if the buyer defaults, to repossess not only the particular item sold but also every other item bought from the seller on which a balance remained due when the last purchase was made. -Also termed dragnet clause. cross-collateralization. See cross-collateral under COL LATERAL. cross-complaint. (1854) 1. A claim asserted by a defen dant against another party to the action. -Also termed (in some jurisdictions) cross-petition. [Cases: Federal Civil Procedurec-;;'786; Pleading 148,149.] 2. A claim asserted by a defendant against a person not a party to the action for a matter relating to the subject ofthe action. cross-default clause. (1979) A contractual provision under which default on one debt obligation triggers default on another obligation. cross-defendant. The party against whom a cross-claim is asserted. Cf. CROSS-PLAINTIFF. [Cases: Federal Civil Procedure C="786.] cross-demand. See DEMAND (l). crossed check. See CHECK. cross-elasticity of demand. Antitrust. A relationship between two products, usu. substitutes for each other, in which a price change for one product affects the price ofthe other. cross-error. See ERROR (2). cross-examination, n. (ISc) The questioning of a witness at a trial or hearing by the party opposed to the party who called the witness to testify . The purpose of cross-examination is to discredit a witness before the fact-finder in any of several ways, as by bringing out contradictions and improbabilities in earlier testimony. by suggesting doubts to the witness, and by trapping the witness into admissions that weaken the testimony. 1he cross-examiner is typically allowed to ask leading questions but is traditionally limited to matters covered on direct examination and to credibility issues. -Also termed cross-interrogation. Cf. DIRECT EXAMINA TION; RECROSS-EXAMINATION. [Cases: Witnesses 266-284,330.1 -cross-examine, vb. cross-interrogatory. See INTERROGATORY. cross-license. See LICENSE. cross-marriage. See MARRIAGE (l). cross-motion. See MOTION (1). cross-offer, n. (1931) Contracts. An offer made to another in ignorance that the offeree has made the same offer to the offeror. cross-offer, vb. cross-offeror, n. cross-petition. See CROSS-COMPLAINT. cross-plaintiff. The party asserting a cross-claim. Cf. CROSS-DEFENDANT. cross-purchase agreement. See AGREEMENT. cross-purchase buy-sell agreement. 1. BUY-SELL AGREE MENT (1). 2. A partnership insurance plan in which each partner individually buys and maintains enough insur ance on the life or lives ofother partners to purchase a deceased or expelled partner's equity. cross-question. See QUESTION (1). cross-rate. The exchange rate between two currencies expressed as the ratio oftwo foreign exchange rates in terms ofa common third currency (usu. the U.S. dollar) . Foreign-exchange-rate dealers use cross-rate tables to look for arbitrage opportunities. See ARBITRAGE. cross-reference, n. An explicit citation to a related pro vision within the same or a closely related document; esp., in a patent application the explicit citation in a continuing patent application to all interrelated appli cations, back to the original filing . A cross-reference alone does not incorporate the disclosure ofthe parent application. C[ INCORPORATION BY REFERENCE (1), (2). -cross-reference, vb. cross-remainder. See REMAINDER. cross-stream guaranty. See GUARANTY. cross-suit. See CROSS-CLAIM. Crown. English law. The sovereign in his or her official capacity as a governing power. See KING; QUEEN (1), "In modern times it has become usual to speak ofthe Crown rather than of the King, when we refer to the King in his public'capacity as a body politic. We speak ofthe property of the Crown, when we mean the property which the King holds in right of his Crown. So we speak of the debts due by the Crown, of legal proceedings by and against the Crown, and so on. The usage is one of great convenience, because it avoids a difficulty which is inherent in all speech and thought concerning corporations sole, the difficulty, namely, of distinguishing adequately between the body politic and the human being by whom it is represented and whose name it bears." John Salmond, Jurisprudence 341-42 (Glanville L. Williams ed., 10th ed. 1947). Crown case. English law. A criminal action. Crown Court. An English court haVing jurisdiction over major criminal cases . Crown Courts date from 1971, when they assumed the criminal jurisdiction of the Assize Courts and all the jurisdiction of the Courts ofQuarter Sessions. crown jewel. A company's most valuable asset, esp. as valued when the company is the subject of a hostile takeover. A common antitakeover device is for the target company to sell its crown jewel to a third party so that the company will be less attractive to an unfriendly suitor. crown-jewel defense. An antitakeover device in which the target company agrees to sell its most valuable assets to a third party ifa hostile bid is tendered, so that the company will be less attractive to an unfriendly suitor. Cf. SCORCHED-EARTH DEFENSE; PAC-MAN DEFENSE. Crown land. See LAND. Crown loan. See LOAN. CRS. abbr. See CONGRESSIONAL RESEARCH SERVICE. CRT. abbr. 1. CRITICAL RACE THEORY. 2. See charitable- remainder trust under TRUST. crucial evidence. See critical evidence under EVI DENCE. cruel and abusive treatment. See ABUSE (2), cruel and inhumane treatment. See extreme cruelty under CRUELTY. cruel and unusual punishment. See PUNISHMENT. cruelty. (13c) The intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage. Cf. ABUSE; INHUMAN TREATMENT; INDIGNITY. "When William Blake opined that 'Cruelty has a human heart', he posited the physical and emotional forms which cruelty may take. But when is one party so cruel to the other that it goes to the heart of the marriage and justifies dissolution? A New York court defined cruelty as bodily harm, or a reasonable apprehension of bodily harm, which endangers life, limb, or health and renders marital cohabi tation unsafe or improper. Some states are reluctant to permit divorce when there has been only emotional suf fering without physical harm. And in a marriage of long duration, some courts require that the cruelty be more extreme to justify divorce than if the relationship has been brief. Acts constituting the ground must continue over an extended period of time unless they are so severe as to shock the conscience. or raise the probability that it would be unsafe for the innocent party if the couple remain together." Walter Wadlington & Raymond C. O'Brien, Family Law in Perspective 73 (2001). cruelty to a child. See child abuse under ABUSE. cruelty to animals. A malicious or criminally negli gent act that causes an animal to suffer pain or death. [Cases: Animals (~3.5(5).] extreme cruelty. (17c) As a ground for divorce, one spouse's physical violence toward the other spouse, or conduct that destroys or severely impairs the other spouse's mental health. -Also termed cruel and inhumane treatment. Cf. ABUSE (2). [Cases: Divorce (;::=c27.] legal cruelty. (18c) Cruelty that will justify granting a divorce to the injured party; specif. conduct by one spouse that endangers the life, person, or health ofthe other spouse, or creates a reasonable apprehension of bodily or mental harm. [Cases: Divorce (.:::>27.] ment