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What are common law and equity?
The term common law is confusing as it has a different meaning depending on the context. The term can refer to: (1) the law that is not established by legislation (also known as “statutory law”) but by judges when they decide cases (also referred to as “case law”), (2) the law that is not equity (see below), and (3) the law of countries following the common law tradition such as England and the US (in contrast to e.g. Roman law or French law), and in this sense it includes the whole of the law, including legislation and equity.
Equity is the name given to the set of rules which traditionally supplemented common law where its application operated harshly, so as to achieve what is sometimes referred to as “natural justice.” Nowadays, equity has merged with the common law to become a branch of the law, dealing with, notably, trusts and certain remedies such as injunctions.
What is the difference between a barrister and a solicitor?
In the UK, the legal profession is divided into two kinds of lawyers: solicitors, who generally advise clients and prepare legal documents, and barristers (called advocates in Scotland) who argue cases in court. In cases where a trial is necessary, a client has to hire a solicitor, who will advise them and then retain a barrister on their behalf. Solicitors have traditionally dealt with any legal matter other than conducting proceedings in court, although nowadays solicitors may appear in the lower courts and also if they have higher “rights of audience” (i.e. the right to appear in court on behalf of another person) in the higher courts. Barristers, who have a general right of audience in all courts, represent clients in court and provide specialist advice on complex legal matters. The easiest way to distinguish the two is to look at how they dress – barristers are the ones wearing wigs and gowns (yes, even in the 21st century), whilst solicitors will invariably be decked out in a dark suit.
What is a deed?
A deed is a written document which is required by law to be executed in a particular way in order to be enforceable (traditionally “signed, sealed and delivered” but these days often by no more than the simple signature of one person). Documents required to be executed as deeds may include certain agreements (such as a transfer of real estate), or where there is a lack of consideration (see “What is consideration?” below), such as the confirmation or creation of a right or interest (such as a power of attorney), and the confirmation or creation of a binding obligation (such as a guarantee). If the formal requirements for execution are met, a deed is enforceable regardless of a lack of consideration, which is usually required for a contract to be enforceable.
What is a trust?
A trust is a legal device used to set aside money or property of one person (the settlor) for the benefit of another (the beneficiary). For example, a trust may arise where assets are left in a will to children who are too young to legally own the assets. A trust is not a legal person – the settler transfers property (such as shares or real estate) to trustees who own the trust property as far as third parties are concerned and have a duty to manage the trust property for the benefit of the beneficiaries. In this way, a trust permits the separation of legal ownership and beneficial interest.
What is consideration in a contract?
In the context of contract law, consideration is a vital element required to form a contract (along with offer, acceptance and an intention to create legal relations). As a general rule, a contract is not enforceable if there is no consideration. It is something done or given, or the promise to do so, by one party to the contract in exchange for the act or promise of the other party. The idea is that, in order for a party to enforce a promise, they must have given some quid pro quo for it. Consideration is, therefore, payment in any form under a contract (such as cash, shares, property, bananas, etc.).
What is the difference between a power of attorney and a proxy?
A power of attorney is authorisation to act on another person’s behalf and in their name in a legal or business matter. The person granting the power of attorney is known as the grantor and the person authorised to act is the agent or attorney-in-fact. The power granted may be very wide in scope and may include the power to sign documents on behalf of the grantor, deal with their financial affairs and property, etc.
A proxy commonly refers only to authorisation to vote on another’s behalf and is therefore more limited in scope than a power of attorney. For example, a shareholder entitled to attend and vote at a company meeting may appoint a proxy to attend and vote in their place or a student backpacking around the world may appoint his or her mother to vote in a general election on his or her behalf (note that a proxy is also the person to whom authorisation is granted).
What are liquidated damages?
Liquidated damages are a fixed or determined sum agreed by the parties to a contract to be payable on a breach of contract by one of the parties to compensate the injured party (also known as the “non-breaching party). The purpose of liquidated damages is for the non-breaching party to avoid the costs which arise in the difficult task of proving the amount of the loss actually incurred. If a liquidated damages payment constitutes a penalty, it will be void, so it is important to draft the liquidated damages clause in the contract such that it compensates the injured party for anticipated loss caused by the breach and does not serve as a penalty. Therefore, for example, the amount of damages stipulated in the contract should be reasonable, and not extend far beyond that which would normally compensate the anticipated loss. It should be noted that, in all other cases where the court quantifies or assesses damages or loss, the damages are known as unliquidated damages.
What is due diligence?
Due diligence (or DD) is the process by which a buyer of a company or business (known as the “target”) investigates the target to assist the buyer in deciding whether or not to go ahead with the proposed acquisition and on what terms (in particular to determine the price). Lawyers will often be instructed to review the target’s documentation relating to, generally, agreements with third parties, loans it has taken out, real estate it owns, environmental matters, intellectual property rights it owns, details of employees and pension schemes, taxation matters and public filings. DD is not very popular amongst lawyers since it can become repetitive and may involve long hours in dingy basements (known as “data rooms”) trawling through copious amounts of documents. Luckily, these days, virtual data rooms are commonly used, whereby documents relating to the target can be retrieved online from the comfort of one’s office desk. This doesn’t seem to have appeased the lawyers though…
Do the words within couplets such as “null and void” and “due and payable” have distinctive meanings?
The short answer is no. Using both words is an unnecessary lawyerism since both words mean exactly the same thing. The couplets came into being in England in the 11th century following the Norman conquest. Since the Normans spoke French, English courts were held in French, but most people in England still spoke English, so lawyers started using both the English and French words in order to be understood. Many of the couplets such as those above are still commonly used in legal drafting, but the fact is that they are redundant, and in these days of plain English in the legal world, it is preferable to use one word rather than two. It’s all King Harold’s fault really…
What is the difference between a contract, agreement, deed and gift?
An agreement ranges in meaning from mutual understanding (not necessarily enforceable by law) to a binding obligation. Whereas, a contract, used especially in law and business, is a binding agreement between two or more persons that is enforceable by law.
A deed is a legal document signed and sealed and delivered to effect a transfer of property and to show the legal right to possess it.
A gift is an intentional and gratuitous transfer of real or personal property by a donor with legal capacity who actually or constructively delivers the property to the donee with the intent of giving up dominion over the property and investing it in the donee who accepts it; broadly : a voluntary transfer of property without compensation.
What is the difference between best efforts and best endeavours?
The term “best efforts” is used in American English and “best endeavours” is used in British English. To use your best efforts/endeavours is to make a usually earnest attempt to do something.
Consideration in contract
Consideration is the value paid by a party in a contract in exchange for the other party’s performance. Under the Anglo-American legal system, each party must give something of value in order for a contract to be valid and binding. It is usually said that the courts will not enforce promises to make a gift. Therefore, consideration is an important concept in the Anglo-American legal tradition. Sometimes, one will see in a contract that one dollar has been paid. This is often stated just to provide some form of consideration. Courts may rule that this is a sham, but often, nowadays, courts do not look into whether valid consideration was paid.
May and can in contracts
There is a significant difference between using “may” and “can” in any legal context.
(1) “May” has several possible meanings, which makes it problematic for the discerning drafts person when deciding on which legal meaning to convey:
(i) language of discretion (e.g., “Company A may pay out a dividend at the end of each quarter.”-i.e., the Company has the choice whether to pay out the dividend);
(ii) language of possibility (e.g., “The auditor may provide information to the Company upon completing the audit.”- i.e., we do not know if that will definitely happen.); or
(iii) language of permission (e.g., “The Company may publish its financial results after the audit is completed.” – i.e., the Company is allowed to publish the results once the audit is completed)
However, the above distinctions are often difficult to identify in context. Consider the following:
“The auditor may provide the Company with an audit report.”
It is not clear from the above whether we are referring to possibility, discretion, or permission.
(2) “Can” is different as it is typically applied when referring to ability (e.g., “The Company can complete the transaction within the specified period.”)
Please note: “can” and “may” should never be used interchangeably in contracts; instead, their use and meaning should be carefully separated to avoid any legal ambiguity.
What is the difference between refutable and rebuttable proof?
Generally, rebuttable presumption is used to describe where a court assumes something is true unless someone proves otherwise. Refutable proof is not commonly used.
Notably, some legal linguists argue that rebut means to attempt to refute something, and therefore refute and rebut are not synonyms. However, they are considered to be synonyms by several British and American dictionaries, and commonly used synonymously.
What’s the difference between “larceny” vs.”theft” and “battery” vs. “assault”?
Larceny and theft both refer to the crime of taking someone else’s goods with the intent to keep them. Larceny was the common-law name of the crime and, in 1986, English law replaced it with the statutory crime of theft. In the US, the term larceny is still used in many jurisdiction. Where the value of the goods stolen is below a certain level, the crime is called petty or petit larceny. Where the value exceeds that level, the crime is called grand larceny.
The difference between assault and battery is very small and only observed by lawyers. Laypeople use these terms synonymously. Assault is the use or the threat of force on another that causes that other person to have a reasonable fear of unwanted touching or physical injury. Battery is the actual use of force or violence, or repugnant intentional contact with another. For example, shooting a blank gun at someone so as to frighten them would constitute assault. Hitting someone with a bullet is battery.
What is the difference between a proxy and a power of attorney?
Both terms mean written authorization for a person to act on behalf of another. However, a power of attorney can be very wide in scope and may include the power to sign documents, deal with financial affairs and property, etc. A proxy commonly refers only to authorization to vote on another’s behalf and is therefore more limited in scope than a power of attorney.
For example, a shareholder entitled to attend and vote at a company meeting may appoint a proxy to attend and vote in their place.
A proxy is also the person to whom authorization is granted.
Is there a difference between an agreement, contract and deed?
The terms agreement and contract have the same basic meaning, however, a contract is generally considered to be a legally-binding agreement, whereas an agreement is an arrangement between parties which may or may not be legally binding. Thus, all contracts are agreements, but not all agreements are contracts. The term deed is broader, and refers to any written instrument in British English. In American English, deed usually refers to a writing by which real estate is conveyed.
Can I use the term ‘by-laws of a company’ in British English?
In the U.S., bylaws are the administrative provisions for the internal management of a corporation, for example shareholders’ annual meetings, the board of directors, and corporate contracts and loans. The corresponding document in a UK company is called the articles of association and it contains similar provisions.
In the UK, by-laws are a type of delegated legislation in the form of regulations or ordinances made by local authorities pursuant to powers given to them through Acts of Parliament, or, generally, the internal rules of an organization (but not a company).
LEGAL ENGLISH VOCABULARY
Articles of Association (U K phrase)
Definition= The Document that sets out the internal rules governing the working of a company
Example= The company’s Articles of Association provided that 5 Directors had to be present at a meeting to form a quorum.
Definition= Items or property that have a value
Example= The company’s main asset is the factory it owns in Birmingham
Definition= the process of acquiring rights similar to those of an owner over an asset through a legal process – Often used to acquire security for a debt or loan
Example= Many lenders require loans to companies to be secured by attaching them to assets through a charge
Definition= The right to take or seize goods as a result of a court instruction issued before the main trial to protect assets to ensure that they will be available after the trial
Example= The Court issued an attachment lien to prevent the Defendant company selling all its assets before the trial.
Authorised share capital (also known as Nominal Capital)
Definition= The amount of shares, mentioned in the Memorandum of Association, which a company may sell to raise money for its business
Example= The Authorised share capital was $20,000,000 made up of 1,000,000 shares with a value of $20 each.
Definition= A draft Law submitted to a Parliament or Governing House for approval
Example= The Offensive Weapons Bill was put before the House of Commons today for its first reading
Bill of Exchange
Definition= A negotiable instrument, (e g a cheque), for a specific amount of money containing the name of the party paying, the party receiving, and the party who will conduct the payment (usually the bank)
Example= payment for the goods will be made by use of a valid negotiable instrument.
Definition= Tying into, cannot be varied from
Example= The 2 companies had entered into a binding contract which they could not alter or change
Board of Directors
Definition= The people elected by the shareholders to manage and make decisions concerning the running of a company
Example= The Board of Directors decided to sell the company’s old factory building to raise extra cash for the business.
By-Law – U S
Definition= The internal rules of a company setting out how it is to be run
Example= The By Laws provided that at least one month’s notice had to be given to all shareholders before there could be an A G M.
Definition= The money raised to start or fund a business, the amount of value of assets of a business
Example= The company sold one million shares to raise ten million pounds of capital to begin business
Definition= The raising of capital through the selling of stocks or shares
Example= The company intends to begin capitalisation in 2011.
Definition= Group of parties who agree to act together to control prices in or supply to the market
Example= The E U has strict rules to prevent any company trying to form a cartel
Certificate of Incorporation
Definition= The document issued by the appropriate Government dep’t confirming that the company is in existence
Example= The company’s certificate of incorporation was issued by the U K Registrar of Companies on 1st July 2007.
Definition= Property or assets pledged as security for a debt or a loan
Example= The bank was only prepared to lend money to Mr Smith if he could provide sufficient collateral to cover the amount of the loan
Definition= The first document filed by a person who wants to sue someone else, usually contains very brief details of what the case is about.
Example= Mr Jones issued a complaint against his neighbour claiming the neighbour had damaged the wall between their houses
Compulsory Winding Up (U K phrase)
Definition= The liquidation of a company at the order of the court
Example= The company faced a compulsory winding up after one of its creditors requested the court to issue an order when the company could not pay its debts.
Conflict of Interest
Definition= A conflict between a person’s own best interests and their professional duties
Example= The Director was forced to resign because he failed to reveal a conflict of interest in relation to the purchase of the land which was later discovered to belong to his brother.
Definition= With the agreement of all the parties
Example= The two companies agreed to a consensual ending of the contract after 15 years.
Definition= A lien created with the mutual consent and agreement of the debtor and the creditor
Example= The bank loan to the company was secured by a consensual lien agreed by both the bank and the company
Definition= The thing having a value which is offered by each side to a contract to induce the other to enter into the contract e g money paid for goods
Example= In a contract there must be valuable consideration for the contract to be valid
Definition= A change to the Memorandum or name of a Company
Example= The company needed a constitutional amendment to change the amount of its share capital
Definition= The sole and exclusive right to copy or use an original piece of music, writing or similar form of artistic enterprise.
Example= You cannot use or replay any Michael Jackson songs without permission as they are still subject to copyright
Definition= The anonymity which shareholders in a Limited company are entitled to. Example= Courts rarely lift the corporate veil to enquire into the identities of the shareholders unless there has been some sort of wrongdoing
Definition= Relating to companies and their operation.
Example= Corporate governs how companies must act in their day to day business.
Definition= The laws upon which a country, state, or organization is based, including how it is governed, how departments will function and rules on how it will carry out its purpose and function
Example= Arrest without trial is usually contrary to the constitution of most countries
Definition= an agreement or understanding as to behavior and protocol between organizations and nations. It is frequently used because it involves international matters which no one nation can legislate upon to bind other countries.
Example= In the U K there are conventions which govern how the different parts of the government deal with each other
Definition= a lawsuit brought by a representative member of a large group of people on behalf of all
members of the group in respect of the same or connected type of complaint
Example = A class action suit has been filed on behalf of all the mobile telephone customers of that company for bad service.
Definition= negligence of two of more people acting independently to cause a loss or suffering; the plaintiff may sue both together or separately
Example = Both John and James drove their cars badly resulting in the accident and so were concurrently negligent
Definition = pronounce a sentence on somebody in a court of law;
Example = He was condemned to ten years in prison. OR The condemned man ate his last meal before being hanged
Definition = a secret agreement between two or more people to perform an unlawful act
Example = The two robbers formed a conspiracy to rob the bank. There was a conspiracy to commit a fraud.
Definition = the force of policemen and its officers;
Example = The Devon Constabulary, The French Constabulary
Definition = Combining 2 existing companies to form a single entirely new company. The two former companies cease to exist and are replaced by the new company.
Example = Acme Sweet Company and Glopro Chocolate company have consolidated to form a new company Acme Glopro Ltd
Definition = recklessly acting without reasonable caution and putting another person at risk of injury or death (or failing to do something with the same consequences)
Example = The car hire company was found to be culpably negligent for the accident as they had failed to check the car’s brakes before hiring the car to the claimant.
Definition= a formal notice filed with a court or officer to suspend a proceeding until the person filing the notice is given a hearing. It prevents dealing with property such as a sale or mortgage until the person filing the ‘caveat’ can explain why their interest in the property has to be considered, e g an ex-wife or husband in relation to the sale of the matrimonial home
Example = The house sale was stopped when the purchaser found that a Caveat against dealing had been entered on the Land Register in respect of the house
Definition = a common law writ issued by a superior court to a lower court demanding the record of a particular case - usually used to check that the lower court’s proceedings were correctly conducted and that it did not over-exceed its powers.
Example = The High Court issued a Writ of Certiorari against the tribunal to check the claim that the way it dealt with the unfair-dismissal claim had been conducted unfairly.
Definition= go against rules and laws
Example = He contravened the speed limit in his car. The building contravened the City planning regulations
Definition = clearly defined or formulated. The best example of what a thing should be.
Example = “The definitive case on corporate officer’s responsibilities”.
Definition = no longer in force or use; inactive;
e g "a defunct (or dead) law"; "a defunct organization – means they no longer are operating.
Definition = a formal objection to an opponent''s pleadings or argument.
e g I demur from that assumption. I demur from that conclusion.
Definition = any pleading that attacks the legal sufficiency or strength of the opponent's pleadings, I e Says that there is no legal case made out.
e g serve a demurrer pointing out that the claim doesn’t show any legal right for the claimant against our client.
Definition = a pre-trial interrogation of a witness; This is usually done in a lawyer''s office. The witness answers questions before the main trial – This helps the lawyers know the strengths and weaknesses of a case and also ties the witness’s evidence to what they state at the deposition.
e.g. The witnesses deposition was taken in the law office of the defence lawyer. The witness deposition clearly states that the witness was in the bank at the time.
Definition = taking away some of the effectiveness of a law or rule; a partial repeal or abolition of a law;
e. g "any derogation of the common law is to be strictly construed" “a derogation of duties” means not carrying out the duties imposed by law.
Definition = capable of being determined or limited or fixed;
e g "determinable speeds"; "matters determinable by law" means that they can be decided by legal process.
Definition = a gift of real property (e g Land or buildings) by a will.
e g I give, devise and bequeath my house to my wife.
Definition = an opinion spoken by a judge on a point of law not directly bearing on the case in question and therefore not binding.
e g The Judge’s dictum suggested similar contracts might be illegal if the parties had agreed to dominate the market’.
Definition = The compulsory pre-trial disclosure of documents relevant to a case; This enables one side in a case to obtain information from the other side concerning the facts in the case, e g specialist’s reports, or contracts, relating to the case.
e g “we will ask for the architect’s drawings to be produced in discovery to see if the company followed the building code”
Definition= the expulsion of someone (e g a tenant) from the possession or occupation of land by process of law.
E g the landlord dispossessed the tenant because he did not pay the rent.
Ab initio (Latin)
Definition= From the beginning, frequently used to describe something as wholly bad.
Example= The contract was based on a complete misunderstanding of what was being agreed and was void Ab Initio. The whole scheme was flawed Ab initio. The purported contract between the two 15 year olds was void ab initio.
Definition= The person or party identified by name at an earlier stage in this document.
Example= The parties agree to pay $1,000 to the above named ship-owners for the transport of their goods. OR The above-named vendor agrees to sell the ship known as… ..all the rents relating to the above named property.
Definition= A brief listing of the documents or authorities providing the history or legitimacy of ownership
Example= When buying a piece of land always ask a lawyer to examine the abstract of title of ownership. OR the Abstract showed the source of the information in the document. Here is an abstract of the history of ownership of the painting.
An Accord (1)
Definition= agreement, understanding as to future behaviour – may refer to a written agreement or document
Example= The 2 companies signalled their accord by signing a memorandum of understanding. OR All the companies agreed to act together and entered into an Accord.
To Accord (2)
Definition = To comply with a law or what has been agreed between two or more parties.
Example= I will accord with the terms of this agreement. The Defendant says he will accord with the court order made today
Definition= Therefore, Following on from this fact, etc
Example= The companies having agreed a deal accordingly entered into a binding contract. The court ordered the payment which the defendant accordingly paid to the Claimant.
Definition= To gather together over a period of time – frequently used about money or wealth
Example= Over the past 10 years I have accumulated a lot of stocks and shares. together will all interest accrued on the money deposited in the accounts.
Definition= Gain possession of, get.
Example= I want to acquire a new factory. He has acquired the ability to draft clear legal documents. We have acquired two new excellent lawyers in the legal department.
Definition= The thing that is, or will be acquired, the target to acquire. This is frequently used in corporate law departments when buying or selling controlling shares in a company or business.
Example = Our recent share acquisitions are providing a healthy income for us. Purchasing your rival company was not a wise acquisition for your group
Ad infinitum (Latin)
Definition= Forever, for eternity, to go on until the end of time
Example = So long as the tenant occupies the land he will pay $100 per year ad infinitum.
Great fleas have little fleas upon their backs to bite 'em, And little fleas have lesser fleas, and so ad infinitum.
Definition= an addendum is an additional document not included in the main part of the original document, frequently it contains additional terms or provisions
Example= You will find the latest list of prices for the goods in the addendum to the contract. There is an addendum to the Will of your dead relative which relates to some paintings he purchased a year before he died.
Definition= To comply with conditions, to stick to
Example= The Tenant shall adhere to all repairing requirements in this lease. Your client must adhere to the contract. We will claim damages for any failure to adhere to this agreement.
Definition= To organize and manage. The process of someone running a business on another person’s behalf.
Example= The Court put the bankrupt company into administration so that it could continue running OR the lawyers had to administer the hospital patient’s finances
Definition= Occupying land or property despite any claims by other parties that they have rights over the property. Staying on land without having permission from the owner.
Example= In the U K it is possible to claim a house as your own if you have lived there for 12 years with adverse possession. OR Sometimes squatters are able to claim houses they have been living in for many years as their own through Adverse Possession
Definition= To accept as a member, subordinate associate, or branch. To associate (oneself) as a subordinate
Example= The Book publishing company agreed to affiliate several smaller book store companies last year. OR Our affiliates in the U S had a record year for sales which helped the group’s overall financial performance
Definition= To add or attach to something – usually used in relation to documents.
Example= ‘I affix my signature and fingerprints to this Power of Attorney document. OR Please look at the map of the land affixed to this report.
Definition= a reference in a document to something which has already been referred to in an earlier part of the document.
Example= ...The rights to occupy the house situate at 22 Birmingham Road, aforesaid. OR The aforesaid list of fixtures and fittings in the property.
Definition= a reference in a document to something which has already been referred to in an earlier part of the document.
Example= ...subject to completing the building works in the aforementioned building schedule. OR The aforementioned purchaser will pay the sum of £10,000 for the painting.
Agency – Agent (the person)
Definition= Acting on behalf of another with their permission and instructions. Frequently used in contract law and contracts.
Example= The Car showroom sold Toyota cars under an agency agreement with Toyota car company. OR I will send my agent to the meeting with you in New York next week, he can speak for me in the meeting.
Definition= to alter or change something such as a document, clause, law, idea
Example = Please amend the contract to remove the clause about assigning its benefits.
Definition= To set aside, to treat as if never have been in existence
Example= The marriage was annulled on the grounds that the husband and wife had never met, nor lived together after the ceremony
Definition= Breaking a contract before performing its obligations because you expect that the other party will fail to perform its part of the contract.
Example= The Defendant’s failure to deliver the first of five expected shipments of coal was treated as anticipatory breach by the Plaintiff who treated the failure as a breach of contract and sued for loss of profit.
Definition= To make a decision in a dispute acting as independent and unbiased after hearing the arguments of both sides.
Example= The 2 parties decided to arbitrate as it was cheaper than having a full hearing before a Judge in the High Court
Definition: A person who acts as a representative, or a judge, in arbitration proceedings.
Example: Our lawyers often appear as arbitrators in cases involving the loss of goods at sea.
Definition= The name for proceedings, process or hearings in which disputes are resolved by arbitrators
Example= Many people prefer arbitration as a less expensive method of resolving commercial disputes than going through court proceedings
Definition= The person acting as a Judge and making a decision in a dispute
Example= The arbiteur in the case was a well known commercial lawyer trusted by both sides.
Definition= The simultaneous buying and selling of money in different money markets usually intended to try and make a profit from the different rates being offered by the 2 markets.
Example= The biggest risk in arbtrage is the possibility of a sudden unexpected movement in market price.
Definition= To transfer ownership or rights to another
Example= The Tenant wishes to assign the remaining term of the lease to his cousin
Definition= The party who receives the rights or ownership assigned
Example= The cousin accepted the remainder of the term of the lease as assignee
Definition= The person who assigns the rights or ownership of something to another
Example= As Assignor, I was able to transfer the remainder of the lease I held to my cousin
Bailee ------ (Note ‘Bailor’)
Definition= a person holding another’s goods or property and under a duty to take care of them
Example= A Garage repairing a car is a bailee of the car for the car owner
Definition=An Officer of the Court who seizes property and serves documents at the Court’s order.
Example= The summons was served by the Bailiff
Bill of Exchange
Definition= A negotiable instrument, (e g a cheque), for a specific amount of money containing the name of the party paying, the party receiving, and the party who will conduct the payment (usually the bank)
Example= payment for the goods will be made by use of a valid negotiable instrument.
Bona Fide (Latin)
Definition= In good faith, with only good and honest intentions.
Example= The job applicant sent in 3 letters from referees confirming his bona fides.
Bona Fide Purchaser for Value
Definition= Someone who receives a negotiable instrument in good faith and believes there to be nothing wrong with it.
Example= The U S Uniform Commercial Code provides protection for a Bona Fide Purchaser for Value of a negotiable instrument who received it in good faith and had no reason to suspect there was anything wrong with it.
Definition= A serious breaking of conditions, usually sufficient to stop a contract from continuing.
Example= The Defendant’s refusal to pay for the first delivery was a breach of contract
Definition= The law made by judges, precedent law.
Example= The Plaintiff’s claim succeeded because he showed that recent case law supported his legal arguments
Definition= An extra document giving further details or changing the wishes of the person who makes a will
Example= Mr Jones changed some details of his will by using a codicil before he died.
Definition= To give, To grant, To invest, To bestow
Example= The right to drive sheep across London Bridge is conferred on Freemen of the City of London.
Definition= A dispute, a disagreement - It may be between people, companies, laws or states
Example= There is a conflict between the evidence given by the Claimant and the evidence of the Defendant in this case
Definition= A new offer, made in reply to an earlier offer which is different from the terms of the earlier offer
Example= When he offered to sell me the car for 20,000 I made him a counter-offer to buy it for 18,000.
Definition= An agreement between 2 parties usually requiring them perform obligations for the other’s benefit.
Example= The contact stated that Mr Jones would sell his car to Mr Smith and that Mr Smith would pay $35,000 to Mr Jones as the price.
Definition= an agreement or promise between parties, a form of contract,
Example= This business purchase agreement contains a covenant not to compete by the Vendor
Definition= usual or habitual practice, usually over a lengthy period of time finally leading to legal recognition
Example= It is the custom of this tribunal to allow parties affected by its decisions to speak, even though they are not the parties in the case
Definition= Of sound mind, memory, and understanding, competent to got to trial and understand what is happening.
Example = The will was written when old man was too old to understand what he was saying, he was not Compos Mentis.
Comity of nations
Definition = courteous respect by one nation for the laws of another nation
Example = Countries with Common Law systems usually show great respect and comity for the decisions made by Judges in each other’s countries
Definition = having the power and intention to have and control property, but without direct control or actual presence upon it – often it is a power a person uses through an agent
Example = The tenant was considered to have constructive possession of the offices even though they were never occupied as he had held a lease for them for the last 2 years
Definition = a custom or usage that has acquired the force of law
Example = The path was designated a right of way over the farmer’s field after 50 years use by consuetude.
I,000 Legal English words and Phrases – Lesson 2 – Contract vocabulary
The first 10 words were dealt with in the last class but should be included in Contract Vocabulary as well.
Example= payment for the goods will be made by use of a valid negotiable instrument.
Definition = inclined or showing an inclination to dispute or disagree, even to engage in law suits; abrasive and contentious behaviour; e g “a contentious lawyer"; "a contentious litigant"
Example = The point about whether full payment was made for the amount delivered was a very contentious issue.
Conveyancing / conveyance (person)
Definition = The Legal process of conveying (transferring ownership of land and buildings – A lawyer who specialises in conveying properties
Example = I sold my house and transferred ownership through the conveyance which passed the title to the new owner.
Definition = The loss caused by one person to another or to his property, either with the intention of injuring him, through negligence and carelessness, or by inevitable accident. The loss which some one has sustained, and/or the gain which he has failed to make.
e g. I suffered £2,000 damage to my car because of his bad driving. I suffered damage to my business reputation because of his lies.
Definition =The financial compensation awarded to someone who suffered an injury or was harmed by someone else's wrongful act. The payment ordered by the court, from a wrong doer, to be paid to the person who suffered the harm, because of the wrong doer’s acts. Damages are given either for breaches of contracts or for tortious acts.
e g The court awarded me £2,000 Damages in compensation for what Mr Smith did to my car. I will go to court and ask for damages.
Definition = Actual Damages are real damages to compensate for loss or injuries that have actually occurred. This is in contrast to "nominal" damages (a small amount paid where there is no real loss) or "punitive" damages (intended to punish the party who must pay damages). When damages, which have been suffered by someone as a result of another's wrongdoing, can be precisely measured, they are called actual damages.
E g the garage bill for repair to my car was £1,500. And the court awarded actual damages of £1,500.
Definition = The amount of money to compensate for any actual damages caused by the party against whom they awarded. Also awarded for things that are harder to measure, such as pain and suffering. (As opposed to punitive damages.)
E g After the car accident the court awarded me an extra £500 compensatory damages on top of the damages to pay the garage bill.
Definition = Damages or loss which arise not from the immediate act of the party, but in as a longer term result of such act; such as if a man causes another to become injured by his negligent driving so he lost his employment.
E g because I was injured by his bad driving I could not work for 3 months so he had to pay consequential damages amounting to my lost 3 month’s salary.
Definition = What may or may not happen. It depends upon a doubtful event, such as a contingent debt, which is a debt depending upon some uncertain event.
E g Whether we will pay in full is contingent upon the goods arriving on time. Payment was contingent upon good work being performed.
Definition = Those given where the issues upon counts or claims to which no demurrer has been filed, are tried before the demurrer to one or more counts in the same claim has been decided.
E g The judge decided that the loss was £10,000 and awarded contingent damages pending the outcome of the trial as to compensatory negligence.
Definition =General damages are those the law implies to have arisen from the act of the person who caused the loss. To be assaulted is an example of this kind of loss. The law understands that the person has been more or less deteriorated or hurt as a result of the assault, and that he is not required to specify what injury he has sustained, nor to prove it.
E g I was awarded £1,000 general damages in respect of his assault on me.
= A business that has not completed all of the legal steps to become a corporation will be treated as a corporation by the court to shield the directors, officers, and shareholders who in good faith thought they were operating the business as a duly formed corporation. Compare: de jure corporation
= A corporation formed in compliance with all applicable laws.
= Trifling or of little importance. Usually refers to something so small, whether in dollar terms, importance, or severity, that the law will not consider it.
= US =A type of bond (an interest-bearing document that serves as evidence of an investment or debt) that does not require security in the form of a mortgage or lien on a specific piece of property. Repayment of a debenture is guaranteed only by the general credit of the issuer. For example, a corporation may issue a secured bond that gives the bondholder a lien on the corporations factory. But if it issues a debenture, the loan is not secured by any property at all. When a corporation issues debentures, the holders are considered creditors of the corporation and are entitled to payment before shareholders if the business folds. UK = Will be attached to physical security. Canada, Australia = May be attached to notional book debts.
= A business that has filed for Chapter 11 bankruptcy and is allowed to continue operating during the bankruptcy process.
= A person who has died, also called the deceased.
= A person who has died, also called the deceased.
= Any statement made, particularly in writing, including a formal statement made under penalty of perjury and signed by the declarant.
= As above
= When a nonparty witness in a lawsuit is not available to testify, a statement made by the witness that is against his or her own interest may be admitted in court as evidence as an exception to the hearsray rule.
= The document that creates a trust. It names a trustee and beneficiaries, sets out how trust assets are to be managed and distributed, and may list the assets that are to be held in trust. It is signed by the person creating the trust, who is usually called the grantor, settlor, or trustor. A trust declaration is also called a trust instrument.
= A court decision in a civil case that tells the parties what their rights and responsibilities are, without awarding damages or ordering them to do anything. Courts are usually reluctant to hear declaratory judgment cases, preferring to wait until there has been a measurable loss. But especially in cases involving important constitutional rights, courts will step in to clarify the legal landscape. For example, many cities regulate the right to assemble by requiring permits to hold a parade. A disappointed applicant who thinks the decision-making process is unconstitutional might hold his parade anyway and challenge the ordinance after hes cited; or he might ask a court beforehand to rule on the constitutionality of the law. By going to court, the applicant may avoid a messy confrontation with the city -- and perhaps a citation, as well.
= As above
deductible business expense = An expenditure that is ordinary and necessary for running a business and deductible from the businesss gross receipts so that it is not counted toward taxable income.
= A means of escaping an overly burdensome mortgage. If a homeowner can't make the mortgage payments and can't find a buyer for the house, many lenders will accept ownership of the property in place of the money owed on the mortgage. Even if the lender won't agree to accept the property, the homeowner can prepare a ‘quit claim’ deed that unilaterally transfers the homeowner's property rights to the lender.
= The failure to turn over or account for funds entrusted to one's care. Defalcation may be, but is not necessarily, criminal or fraudulent.
= A false statement that harms a person's reputation. If the statement is published, it is libel; if spoken, it is slander. Most states have retraction statutes under which a defamed person who fails to seek a retraction from the publisher, or who seeks and obtains a retraction, is limited to compensation equal to the actual (or special) damages. Public figures, including officeholders and candidates, can only prevail in defamation lawsuits if they can show that the defamation was made with knowledge that it was false or with reckless disregard for the truth
= Property ownership that is subject to claims by someone else, making it impossible to sell the property
= An arrangement in which a portion of an employee's income is paid at a later date than the date when it is earned. In most cases, the primary benefit is the tax deferral on the deferred income.
= 1) In tax, a difference found by the IRS between a taxpayers reported tax liability and the amount of tax the IRS says that the taxpayer should have reported. 2) In lending, the remaining balance of the debt after the security for the loan has been sold following repossession or foreclosure.
= A judgment for the amount a homeowner owes the lender after a house or other asset is foreclosed upon and sold by the creditor for less than the actual debt (mortgage or car loan, for example) that is secured by the asset. In most states, the lender can file a separate lawsuit to recover a deficiency owed by the borrower. Some states restrict deficiency judgments after a home foreclosure.
= A type of pension plan that promises a specific benefit upon retirement. The benefit may be a set amount (such as $1,000 per month) or may be calculated according to a formula based on, for example, years of service and average salary.
= A type of retirement plan that creates an individual account for each employee funded by contributions by the employer, the employee, or both. The amount contributed is set, either as a dollar amount or by formula (for example, a certain percentage of the employee's earnings). Unlike a defined benefit plan, which guarantees that the employee will be paid a certain amount on retirement, a defined contribution plan guarantees the employee only the value of his or her account upon retirement: amounts contributed to the plan plus or minus investment gains or losses. A 401(k) plan is a type of defined contribution plan.
= To use deceit, falsehoods, or trickery to obtain money, an object, rights, or anything of value belonging to another.
= An exchange of property to put off capital gain taxes, in which the funds are placed in a binding trust for up to 180 days while the seller acquires an "exchanged" (another similar) property, pursuant to Internal Revenue Code Section 1031.
= To assign authority to another. 2) A person chosen to attend a convention, conference, or meeting on behalf of an organization, constituency, interest group, or business.
= 1) (duh-lib-er-et)Done with care, intention, or premeditation. 2) (duh-lib</>-er-ate) Consideration and discussion of facts, laws, and other matters, particularly by members of a jury, a panel of judges, or by any group including a legislature
= 1) A payment that is past due or not paid in full. 2) A person who disobeys rules or breaks the law such as a juvenile delinquent.
= The transfer of an object, money, or document to another. To be effective, real estate deeds must be delivered, but delivery does not necessarily require that the new owner be given physical possession of the deed. If a deed is acknowledged and recorded, the law generally presumes that delivery was made.
= A claim or an assertion of a legal right or a right to compensation
= Correspondence from one party to a dispute to the other, stating the drafting party's version of the facts of the dispute and making a claim for compensation or other action to resolve it. Often drafted by an attorney, a demand letter is generally an opening gambit in an effort to settle a legal claim.
= Transfer of real estate by a lease or will. Traditionally, the transfer was limited to a term of years but the expression has come to refer to outright gifts as well.
= Objects, pictures, models, and other devices used in a trial or hearing to demonstrate or explain facts that the party is trying to prove.
= (dee-mur-ur) A written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge will then be held to determine the validity of the demurrer. Some parts of a lawsuit may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, the judge will usually sustain the demurrer (state it is valid), but "with leave to amend" in order to correct the original complaint. If after amendment the complaint is still not legally good, a demurrer will be granted. In rare occasions, a demurrer can be used to attack an answer to a complaint. Some states have substituted a motion to dismiss for failure to state a cause of action for the demurrer.
= A statement by a defendant that an allegation (claim of fact) is not true. When a defendant in a civil lawsuit files an answer to a plaintiff's complaint, the defendant is limited to three choices: admitting, denying, or denying the allegations on the basis that he or she has no information to affirm or deny them. If a defendant denies all of the allegations, it is called a general denial. The defendant's answer may also include affirmative defenses.
= 1) A person receiving support from another person (such as a parent), which may qualify the party supporting the dependent for an exemption to reduce income taxes. 2) Requiring an event to occur, as the fulfillment of a contract for delivery of goods is dependent on the goods being available.
= Someone whose deposition is being taken.
= To question a witness or a party to a lawsuit at a deposition (testimony under oath taken outside of the courtroom before trial).
= The taking and recording of the testimony of a party or witness under oath before a court reporter, in a place away from the courtroom, before trial. A deposition is part of pretrial discovery. The testimony is recorded by the court reporter, who will prepare a transcript that can be used for pretrial prepration or in trial to contradict or refresh the memory of the witness, or be read into the record if the witness is not available.
= Property with a useful life of at least one year that gradually loses its value over time. A business deducts the cost of a depreciable asset over a period of time
= In accounting, to reduce the value of an asset each year on the basis that the asset (such as equipment, a vehicle, or a structure) will eventually become obsolete, worn out, and of little value.
= A business fund in which the probable replacement cost of equipment is accumulated each year over the life of the asset, so it can be replaced readily when it becomes obsolete and totally depreciated.
= Something or someone who is abandoned, such as a ship left to drift at sea or a homeless person ignored by family and society.
= 1) Abandoning possession, which is sometimes used in the phrase "dereliction of duty." It includes abandoning a ship, which then becomes a derelict which salvagers can board. 2) Increase of land due to gradual lowering of a tide line (which means the land is building up).
= A financial instrument whose value is based on the value of an underlying security, such as a commodity, currency, or bond. The most common derivatives are futures, options, and swaps. They are used to manage risk and fluctuations in the value of the underlying security but are often risky and complicated investments.
= A lawsuit brought by a shareholder against the corporation's directors, other shareholders of the corporation, or a third party for failure of management or fraud. The suing shareholder sues on behalf of the corporation (usually because the directors are failing to exercise their authority for the benefit of the company), and any proceeds of a successful action are awarded to the corporation and not to the suing shareholder.
= In copyright, a new creative work based upon an existing work. To be separately protected under copyright law, a derivative must include sufficient original creative work. Examples of derivative works include a translation of a book, a toy based on a cartoon character, or a movie script based on a novel.
=A trademark or service mark that describes some characteristic of the product or service with which it is associated. For instance, "Jiffy Lube" describes a purportedly fast lube service. Descriptive trademarks are harder to protect, at least until the owner can demonstrate that consumers associate the mark with the source of the goods or services (a status referred to as a secondary meaning).
= A patent granted for a new design that is not obvious to those in the field of design, and that is used for ornamental reasons -- that is, the design does not affect the functioning of the underlying device. Design patents last for 14 years from the date the patent is issued.
= To keep a person/or thing for a period of time or otherwise confine him or her usually as punishment for, or suspicion of, committing a crime.
= 1) Capable of being determined by a court. 2) Capable of being terminated on the occurrence of a particular event, usually used to describe an interest in real estate.
= A jail or prison sentence that is definite and not subject to review by a parole board or other agency. For example, a sentence of six months in the county jail is determinate, because the prisoner will spend no more than six months (minus time off for good behavior, in some situations). By contrast, an indeterminate sentence (such as 20 years to life) has a minimum term but the release date, if any, will be chosen by a parole board as it periodically reviews the case. Compare: indeterminate sentence
= An old legal term that is generally used to refer to real estate left to someone under the terms of a will, or to the act of leaving such real estate. In some states, devise now applies to any kind of property left by will, making it identical to the term bequest.
= A person or entity who inherits real estate under the terms of a will.
= Someone who leaves real estate by will
= A remark, statement, or observation of a judge that is not a necessary part of the legal reasoning needed to reach the decision in a case. Although dictum may be cited in a legal argument, it is not binding as legal precedent, meaning that other courts are not required to accept it. Dictum is an abbreviation of the Latin phrase "obiter dictum," which means a remark by the way, or an aside
= A paperless method of entering into an electronic contract. Under the Electronic Signatures Act, enacted in 2000, electronic contracts (with a few exceptions) are as enforceable as those executed on paper. The law does not specify an approved method of signing electronic agreements and various methods have been improvised including clicking an "I Accept" button, typing "Yes," typing in a name, or using a "key" to encrypt (scramble) information that uniquely identifies the signer.
= Reasonable care or attention to a matter.
= When a famous trademark or service mark is used in a context in which the mark's reputation for quality is tarnished or its distinction is blurred. For example, the use of the word Candyland for a pornographic site on the Internet diluted the reputation of the Candyland mark for the well-known children's game, even though the traditional basis for trademark infringement (probable customer confusion) wasn't an issue.
= An impaired mental condition, caused by disease, trauma, or intoxication but short of insanity, that can reduce the criminal responsibility of a defendant. Not all states allow defendants to offer this plea in response to criminal charges.
= A way of assessing damages after a breach of a contract, which measures the difference between the value of the property as it was contractually promised and the value of the property as it currently exists or was constructed.
= The immediate reason that something happened that caused harm to another person. The words are often used together, as in "The defendant's negligent act in running the red light was the direct and proximate cause of the plaintiff's injuries."
= Real, tangible, or clear evidence of a fact, happening, or thing that requires no thinking or consideration to prove its existence, as compared to circumstantial evidence.
= At trial, the initial questioning of a party or witness by the side that called him or her to testify. The major purpose of direct examination is to explain your version of events to the judge or jury and to undercut your opponant's version. Good direct examination seeks to prove all facts necessary to satisfy the plaintiff's legal claims or causes of action -- for example, that the defendant breached a valid contract and, as a result, the plaintiff suffered a loss.
= A member of the governing board of a corporation, typically elected at an annual meeting of the shareholders. As a group, the directors are responsible for making important business decisions -- especially those that legally bind the corporation -- leaving day-to-day management to the corporation's officers and employees. For example, a decision to borrow money, lease an office, or buy real property would normally be authorized by the board of directors.
= A finding by the IRS after an audit that a business or individual taxpayer was not entitled to a deduction or other tax benefit claimed on a tax return.
= 1) To perform one's legal duties or meet one's obligations.
2) To fire someone from a job.
3) In bankruptcy, an order of the court that wipes out all dischargeble debts.
= 1) To refuse or give away a claim or a right to something. For example, if your aunt leaves you a white elephant in her will and you don't want it, you can refuse the gift by disclaiming your ownership rights.
2) To deny responsibility for a claim or act. For example, a merchant that sells goods secondhand may disclaim responsibility for a products defects by selling it as is.
= 1) A contractual provision in which one party renounces or refuses a right or a responsibility.
2) A formal statement by a patent or trademark owner that it does not claim certain intellectual property rights.
3) An irrevocable refusal to accept property that has been left by will, trust, or other method, sometimes used in estate planning to reduce overall taxes paid by a family.
= The making known of a fact that had previously been hidden; a revelation. For example, in many states you must disclose major physical defects in a house you are selling, such as a leaky roof or potential flooding problem; and in all states, you must disclose the presence of lead-based paint hazards in buildings constructed before 1978.
= Payment of less than the full or regular amount of the price for goods or services or less than the amount due on a promissory note.
= A formal investigation -- governed by court rules -- that is conducted before trial by both parties. Discovery allows each party to question the other parties, and sometimes witnesses. The most common types of discovery are interrogatories, consisting of written questions the other party must answer under penalty of perjury; depositions, at which one party to a lawsuit has the opportunity to ask oral questions of the other party or witnesses under oath while a written transcript is made by a court reporter; and requests to produce documents, by which one party can force the other to produce physical evidence. Parties may also ask each other to admit or deny key facts in the case. Discovery allows parties to assess the strength or weakness of an opponent's case, in order to support settlement talks and also to be sure that the parties have as much knowledge as possible for trial. Discovery is also present in criminal cases, in which by law the prosecutor must turn over to the defense any witness statements and any evidence that might tend to exonerate the defendant. Depending on the rules of the court, the defendant may also be obliged to share evidence with the prosecutor.