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LEGAL TERMINOLOGY (words often confused ) by ILEC

 

  Данный раздел предназначен  для студентов-юристов 3-4 курсов и магистров, но будем рады, если он будет интересен студентам первого и второго курсов.         (На базе материалов ILEC)

 Эти и другие слова могут помочь будущему юристу преодолеть трудности понимания в языке специальности. 

 

 

 accede and exceed

   These two words should not really be pronounced exactly the same.

  “accede” means to adhere to an agreement or to become party to a treaty or a contract. Whereas exceed means to go beyond or surpass.

  The meanings have no correlation, they are completely different.

 We would hear  accede  in a sentence like  "The European Union supported Russia's application to accede to the World Trade Organisation."; or  "They were able to settle the case when the defendant acceded to the plaintiff's demand

  We may hear  exceed more often in a non-legal context. For instance:  

"I got a speeding ticket when I was exceeding the speed limit while driving"; or  a company might say “Spending far exceeded their revenues and that caused a deficit.”

  We can also use exceed in a positive way. For instance, you can say:

“Her performance exceeded their expectations.”

 Both of these words have related nouns. For  accede, we have accession. For instance you would say:

 “The senate recommended accession to the treaty.”

 And for excess, we would always say in excess of. So you could say:

  "The company recommended that her bonus be in excess of one million dollars.”

 

  

“advise” and “advice”.

  They are amongst the most commonly misused words in English. Most people don't realize that there is a difference between “advice” with a 'C', and spelled as above and “advise” with an 'S'. It sounds a little bit like a ‘Z’ but it is spelled with an S. “Advice”, on top, is a noun. It's a recommendation. For example, here are some sentences:

"I am seeking your advice."

 "Take my advice."

  “Advise”, on the other hand, is a verb. It refers to the act of giving advice. So, for example:

 "I would advise you to listen to your teachers."

    

 accounting conventions

   Now a company's accounts are supposed to present an accurate view of the company's financial position, that is, what accountants refer to as a true and fair view of the financial position of the company.

 In helping accountants to determine the true and fair view of the financial position of a company certain accounting conventions have developed and accountants use these conventions in their calculations for accounting. There are many different accounting conventions.

 For example, the historic cost convention, which means that the value of an item is determined based on the cost of acquisition at the time of acquisition. Another convention is the going concern convention, which assumes that at the time of preparing the accounts the company intends to continue in business. A third example is the prudence convention, which means that you try to take as fair or as accurate a sum or an estimate of the cost of various assets. In other words, you err on the side of caution. Fourth, is the money measurement convention – the money measurement convention is concerned with only using those items which can be quantified so, for example, employee morale is not shown on the accounts, nor is the value of the location of the plant shown in the accounts. However, it should be noted that accounting is a living science so to say, so what can and cannot be measured according to the money measurement convention can change over time.

 

Affidavits

 Affidavits are written statements that you swear are true and can be used as evidence in court.  In the US, in particular, documents filed by lawyers are often required to be sworn.

 The opening paragraph of these affidavits read as follows:

  "I, Robin Bernstein do solemnly swear under the penalties of perjury that the following facts are true to the best of my knowledge and belief."

  The person making the affidavit is called the affiant. And at the end of these affidavits there is a clause called a jurat certifying where, when and before whom the affidavit was sworn. Usually, affidavits are sworn before a notary public who then signs the affidavit and puts an official seal on it.

  Although the phrase sworn affidavit is often used, it is redundant since an affidavit is by its very nature a sworn document and because it is sworn the affiant can be prosecuted for committing the crime of perjury, that is, lying under oath if he or she has told falsehoods in the affidavit.

 

 

 arbitrator, arbiter, arbitration and arbitrage

 

Let's start with these first twoarbitrator and arbiter. They are both types of judges but they perform in different kinds of forums. An arbitrator is a judge, but only in arbitration procedures. Those are the only forums. An arbitration proceeding is a kind of alternative dispute resolution, that is where a legal case is taken and settled out of court. And why would you take a case out of court to settle it in an arbitration? It's done for matters of speed. Usually, it's much quicker to settle a case in an arbitration. It is also secret, so companies that have disputes where they have trade secrets that they don't want to come out in open court, they prefer to take their cases in arbitration proceedings and, moreover, the arbitrators often have great expertise in the subject matter. So those are all the reasons why you would take a case to an arbitration held before one arbitrator or a panel of, usually three, arbitrators.

 So what is an arbiter? An arbiter is a judge of anything. Could be a judge of morals, of taste, for instance it is often said that Vogue magazine is the arbiter of fashion worldwide or that the Film Censor Board is the arbiter of morals of all of the movies and TV shows that we see. So this is a much more general word. It can also refer to a court. So it is often said that the US Supreme Court is the final arbiter of all legal disputes in the US. So this is a word that we can use in a very general way as opposed to the very specific way in which we use the word arbitrator.

 Arbitrage is very different than arbitration. Arbitrage is the simultaneous buying and selling of currencies or securities on two different markets in order to try to take advantage of the difference in prices. So for instance, what an arbitrager will, for instance, buy securities on the London Stock Exchange and almost simultaneously try to sell them on the New York Stock Exchange in order to try to make money by taking advantage of some sort of a small price difference or disparities between the two exchanges.

 

 assignment

Assignment has both a general English meaning, meaning a task or a job, and a legal English meaning, which means a complete transfer of rights.

In the legal English context or in a legal context you should only use this definition or the term assignment when you mean this definition - a complete transfer of rights.

 Whereas in a licence agreement, a licensor retains ownership or control over the licensed product. In an assignment the assignor assigns away or completely transfers all of the rights to the product or the rights under a contract and that's why you should never use the term assignment in its general English meaning in a contract.

 The one exception is perhaps work assignments, when you're talking about employment contracts, but even then I would avoid using it to avoid any confusion on the part of the client or anyone who is viewing the document.

 

 assure, ensure and insure

 Starting with assure. It's to make someone sure of something, especially by telling them something positively so they no longer have any doubts. For example:  "the tour operator assured me that my children would be totally safe on their adventure holiday".

 Another example:

 "I can assure you that my fellow grand jurors treated me as an equal",  "they have put systems in place to assure quality output".

  These are three examples of how you can use assure.

  We're going to now move onto ensureEnsure is to make certain. For example:

   "we must ensure that the benefits can be enjoyed by all",

  "the Police must ensure that those responsible are charged in court",

  "they do not always check to ensure that the tube originates at the desired location". 

   Again, ensure is to make certain.

   And moving on lastly to insure. It is to protect yourself against risk by paying a company money in return for the company paying your costs in case of an accident, injury, theft or damage to your property. For example:  "under the scheme the government will insure banks against losing more money from loans and investments",  "the company was insured against accidents in the workplace".  This is how you use insure.

  Assure – to make someone sure of something by telling them something positively so they no longer have doubts. Ensure – to make certain. Insure – to protect oneself, person or object against risk.

 "I would advise you to listen to your superiors."

  "I turned down that job on your advice."

 "His advice was sound."

  “Her performance exceeded their expectations.”

  "I got a speeding ticket when I was exceeding the speed limit while driving"; or  a company might say “Spending far exceeded their revenues and that caused a deficit.”

 

 solicitor and attorney. Act of God and force majeure. Damages and compensation.

  Let's have a look at these first two, solicitor and attorney. Attorney is a common term in American Legal English for lawyer. Solicitor is not quite the same. Solicitor is particular to England and a lot of Commonwealth countries, and it's a particular type of lawyer. And in the UK we contrast the term solicitor with another branch of the legal profession, the barrister. Now, one of these, the solicitor or the barrister has rights of audience at court. That means that they can go and represent clients at court and carry out the advocacy work. One of them does the preparation – all of the work that leads up to the actual advocacy work in court. It's the solicitor that does the initial litigation, the initial work or the preparatory work and generally speaking if it's, say, a breach of contract case, or a non-criminal matter, the case usually begins and ends with a solicitor, because most cases end in an out-of-court settlement. If the parties can't settle then the solicitor will get a barrister's advice. The barrister if often seen as the expert in particular areas of law and then the barrister will take the brief, the file, the documents from the solicitor that cover all of the facts of the case and will then represent the client in court. The solicitor will generally speaking go to court as well. In the higher courts he doesn't have rights of audience. He can't represent a client. What he can do is instruct the barrister. So the barrister may need to ask questions of the solicitor during the court case, and the solicitor will be there to support the barrister. In the lower courts, the courts of first instance, the solicitor can also represent the client and carry out advocacy work, but generally speaking that work is undertaken by the barrister.

  Act of God and force majeure.

Now, there's an important distinction here, and sometimes what is actually a force majeure in, for example, a German contract, is falsely translated as an act of God. Now there's a difference. A force majeure is anything that happens that can be unforeseen by the parties, that is completely out of their hands and that causes the end of the contract or causes the contract to be breached. For example it can be an act of terrorism, an act of war, it could be a military coup, it could be something like a natural disaster – extreme weather conditions, and these are examples, the latter two – so a natural disaster, extreme weather conditions – these are examples of an act of God. So an act of God is a particular type of force majeure. If I can't carry out the contract because, let's say, we're contracting to sell a car and the car is struck by lightening than that's an act of God. There's nothing that either party could have done to prevent that. So an act of God is a type of force majeure. Force majeure is a more general term.

  Damages and compensation.

Damages is a remedy. It's what you are asking the court for when you sue somebody. So let's say we have a contract, there's a breach of contract case. I contract with you, you fail to fulfill you side of the bargain and that costs me money. I would sue you for damages. And damages is the legal English term for what is sometimes referred to in more general English as compensation. Compensation has a much more general meaning. It's anything that I can do or someone can do to make up for a bad situation they've caused. Let's say I've been caused an injury. I can maybe get compensation from someone's insurance company. But damages is a specific remedy. It's a specific legal English term. So if I go to court, I'm suing you for breach of contract, I'm suing for damages. Let's say a thousand euros in damages. I'm being compensated, it's a form of compensation but the technical legal English term is damages. And notice its damages. We always use the "s" on the end. You could cause damage to my car.

 

 

condition and warranty

  Let’s start off with "freehold" and "leasehold". These are two kinds of ways of having a ‘possessory interest’ in property, of possessing property, having the right to use property. I have a house in Canterbury, but I haven’t lived there for a long time. Now I bought that house - I own it outright, it’s my house. I own it freehold. But because I don’t live there any more I’ve been renting it out to students, and they have it leasehold so as long as they have the lease, they have that property leasehold. They have the right to live there; they don’t own it, they can’t make any changes, and structural changes to the house - certainly not without my permission - but they do have the right to live there.

  I have a contract with them for this house, sometimes referred to as ‘the ‘lease’. This leads us on to the next two terms, "void" and "voidable". So what’s the difference between these two terms? Well, let’s say I have a contract with you; let’s say that you’re renting my house in Canterbury. And you breach one of the terms. Now, if one of the contract terms that you breach, if it’s a condition, then that can render the contract void. That would mean that - well a condition is an essential term, it’s a material term, it’s a very important contract term and, if you breach the condition, then I have the right to decide that I’m going to terminate that contract and sue you for damages. I don’t have to do that, but I can if I want to. However, if the term that you breach is a warranty, a non-essential term - it’s not a material term - I can still sue you for damages if your breach has cost me money, but I can’t void the contract, I can’t terminate the contract. So that’s the difference between these terms here.

   "Mistake" and "fraud in the inducement".

We can come back to the example of the house in Canterbury, or any type of contract really. Let’s say the two contracting parties both have a different understanding as to what’s being bought. So you think you’re buying a red car from me, I think you’re buying a blue car from me, it’s an honest mistake. That can render the contract void, because of a genuine mistake about the nature of the contract. However, if I know that you believe something, some fundamental aspect, some fundamental part of the contract, let’s say that you believe you’re buying some real diamonds from me and I know that what I’m selling you are fake diamonds and I lead you to believe that, it’s a type of fraud and it’s called a "fraud in the inducement". I induce you to enter the contract through fraudulent means. I deliberately try to mislead you; and this is the different between a “mistake”, which is a genuine mistake between two people over one aspect of the contract, or "fraud in the inducement", where one party has deliberately misled another party.



duress, undue influence, termination and severability, costs and consideration.

 Two of these are concerning money, one of the pairs is concerning defences, in American English it is spelled with an "s", British English with a "c" and two of them concern contract clauses. Have a look and see which one do you think is which.

  The first two are types of contract defencesdefences to a contract, or defences to contract formation. So what's the difference between duress and undue influence.

   Duress is when, if at the time of signing a contract or entering into an agreement, I'm under immediate physical threat or danger. Let's say an extreme example, someone could hold a gun to my head and say sign this contract. Under that situation the contract is unenforceable and the defence would be duress.

   Undue influence would be where a professional abuses their professional relationship with me, to persuade me to enter into a contract that otherwise no reasonable person would have entered into. That's undue influence.

   Termination and severability. Well these are both two types of contract clauses. A termination clause is the clause in a contract which outlines the circumstances under which the contract will be terminated.

   Severability is rather different. Severability says that it's the clause which states that if for some reason one of the contract clauses, part of the contract is unenforceable the rest of the contract still stands. So the rest of the contract will still be valid.

   Costs and consideration. Well these are both to do with money. Consideration is what induces one party to enter into a contract but usually, generally speaking we're talking about money. And the consideration clause in the contract is the clause in the contract which details payment. The price of the contract.

  If for some reason this contract then goes to court, if there's a breach of the contract, if it's a subject of litigation, then one side is going to have to pay and what they have to pay is costs and costs refer to all legal fees that are incurred during a case.

  

counterpart versus counterparty

  The first term, counterpart, means duplicate or copy and, as a lawyer or even as a law student, if you're familiar with contracts you'll see at the end of contracts language to the effect that this agreement has been signed in two original identical counterparts of which each party has received one. It's sort of standard closing language in a contract. All it means is each party has received a duplicate or copy of the original contract.

 Counterparty, on the other hand, means one party to a contract transaction, trade, etc. Another way to talk about a counterparty, is to talk about the opposing side. For example, in a transaction there's a buyer and a seller and they would be on opposing sides or counterparties. A sample sentence here would be, “both of the counterparties are required to sign the contract in order for it to be valid.”

  

 

damage and damages

This is a mistake of two terms that people mistake on a regular basis. Damage is harm or injury to a person or property.  Damages are the monetary compensation awarded by a court for the damage.

 So one classic example that many of you have probably heard of for damage or damages would be the infamous McDonald's hot coffee case in which Stella Liebeck spilled some hot coffee from McDonald's on her legs and she suffered third-degree or full-thickness burns to her skin and so this was the harm or injury to her person. She then sued McDonald's for damages. And that is the compensation that she wanted to make up for her harm or injury. The court awarded her damages to compensate her for the harm, the physical harm as well as the medical expenses that she had incurred in order to treat her injuries -- this is what was commonly referred to in the press as the two million dollar hot coffee case. Of course it wasn't actually that much in the end because the court reduced the jury's award. But in the end Stella Liebeck did receive monetary compensation, damages, for the harm incurred as a result of spilling the hot coffee on her legs.

 

 legal doublets

A legal doublet is a standard phrase consisting of two or more words used frequently in Legal English. Such phrases couple terms which are similar in meaning, for example, like a synonym. Many times the origin of these doublets can be attributed to the transition of the legal language that you had from Latin to French to English so a lot of these words just carried on and they were paired together. Nowadays many modern scholars think that we should do away with the doublets because they're unnecessarily redundant. Nevertheless, they still exist so it's important that you recognise them and you're able to utilise them for purposes of interpretation.

  One good example of a legal doublet is "due and payable". Due and payable simply means that it is payable; that it, it is due to be paid. Naturally, these words you see a lot of times in contract terms, they go together although meaning the same thing.

 Another example is "final and conclusive". Again, final and conclusive simply means to put an end to a debate or question; something is final, it's conclusive, you've concluded it. Again, synonyms -- redundant but nevertheless seen and used together a lot within contracts.

  Another example is "legal and valid". A valid contract is one that has been executed in accordance to the requisite legal formalities; it conforms with legal formalities so if it's valid, it is legal. Again, two words that mean the same thing in contractual terms but are often seen together in a doublet form.

 

 

equity

The term equity in its company law context and the term equity in the financial sense or in the company law context really has a meaning which ties into the monetary value of something, either the monetary value of a property or business, the ownership interests shareholders have in a company or just referring generally to the common stock or common shares of a corporation, ordinary shares for a corporation (British English).

  But in this context the term equity has a little bit different meaning and this is the common law concept of equity – the principle of equity, which means fairness, the carrying out of justice according to fair principles.

If you go back, in England there used to be courts of law and courts of equity. Courts of law were where you went if you wanted to get money – damages, and courts of equity were where you went if you wanted to get something else – if someone had stolen your cow and you wanted to get the cow back.

  Even though the courts have kind of merged into one, the distinction still exists today in the sense that equitable relief means any sort of relief other than damages which is non-monetary, i.e. not money.

  The most common equitable relief is injunctions when talking about court orders – to do or not to do something, but there are other examples as well - specific performance, which is asking a court to require the opposing party to finish the contract, or rescission, which is asking a court to put an end to a contract, or restitution, which is asking a court to give, not only under contract, but to give back any unjust enrichment that one side has obtained from the other.

 

formal versus informal language

 This is a very important area, formal versus informal because it affects test scores on the writing part of the international Legal English certificate. 

  Just a few examples of formal vs informal:

 Kindly let me know – Tell me;

  I attach – here's the;

  which you requested – you asked for, requested is a nicer word, higher register

  Let me know as soon as possible – Tell me asap,

  Many thanks - Thanks a lot.

 So just something to keep a heads-up on, especially for you test-takers, that formal writing is important -- when you’re speaking it might be ok depending on the setting -- but certainly it will affect your grades in writing and certainly when I'm looking at things and assessing things, that's one of the first things I look at because I know that even though a person might be speaking very well and might have great reading skills and great listening skills, for some reason, because they don't practise writing in a formal manner as much as they should, they tend to fall into this trap.

 

 green shoe option.

 The technical term is an over allotment option which you will see sometimes it referred to in prospectuses or in contracts or in underwriting agreements with the underwriter of a particular issue of shares.

 The green shoe option, when a company is publicly issuing shares for the first time in an initial public offering or otherwise, they generally enlist the help of an underwriter and an underwriter is either a bank, or a financial institution or an investment house who assists in the issuance – really underwrites the new issuance of shares in an IPO or otherwise and they really work with the issuer of the shares to determine the price, the number of shares which are going to be issued and the process and which investors will be targeted.

 The green shoe option is an option on behalf of the underwriter or an option for the underwriter to issue more shares if necessary, that is if demand exceeds what was initially anticipated by the issuer, the underwriter or both. This enables the underwriter to generally issue up to 15 percent more shares than originally anticipated or originally scheduled and it’s a means of not only dealing with increased demand but also a means of stabilising the price of shares after the shares are listed.

 

 homicide, murder and manslaughter.

Homicide is the umbrella term for other kinds of killings. Homicide only means killing. It describes various different killings, whether they are illegal or not. 

 You're probably familiar with some of the words that end in cide, like suicide killing yourself, patricide killing your father like the mythical Oedipus did, and infanticide which means killing small infants. Often homicide is committed in a completely legal way, for instance the State of Texas which has a death penalty. When they carry out this death penalty it is a homicide although it is completely in accordance with the law.

  Murder is always intentional and the kind of intention which is required by the law is called malice aforethought in legalese. It is the most serious of all of the killing crimes and there are several levels of murder. First there is murder in the first degree and that is committed when you kill a police officer or you commit the killing in an extremely cruel way where there's a lot of torture involved. Murder in the first degree can be punished by the death penalty in the states where they have that, otherwise by long, long prison sentences.

 Then we have murder in the second degree and that's just sort of the normal degree of killing, when you've just killed somebody but not in a terribly way. And that has a lighter punishment. Usually you don't receive the death penalty for that and you don't have to spend your entire life in prison.

 Then we come to manslaughter which is a lesser killing crime. To commit manslaughter you usually need an intent but not an intent to kill. So for instance, you can just intend to cause somebody physical harm. Let's say you stab them intending just to hurt them but they happen to die. You will be convicted of manslaughter. Similarly, if you have a reckless state of mind. For instance, you have a gun, you shoot it into a crowd, not really aiming at anybody, but the bullet hits somebody and that person happens to die. You can be convicted of manslaughter for that reckless act.

 There are also several fairly new kinds of crimes that are considered to be manslaughter, for instance vehicular manslaughter which occurs when you drive drunk and hit somebody and that person dies. You'd never had the intent to kill or to hurt anybody, but that just happened. You can be convicted of vehicular manslaughter. Similarly, assisted suicide when you are helping somebody to kill themselves. That is sometimes punished as manslaughter.

  immunity and impunity.

These two words do sound alike, they're spelled very similarly and are often used together to create an effect. And in fact they have a rather similar meaning in that they both refer to some sort of protection. However, impunity is a much narrower word. It derives from the Latin words which together mean not punishment and it means protection from punishment or from any harmful consequences of an action.

  So for instance, it is often said that the Mafia operated with impunity for many years because of the cooperation of corrupt police officers. It is often said that having freedom of speech gives us impunity for any statements that we might make that are against the government.

The word immunity refers to protection not just from punishment but from a duty, from a liability or even from an illness. So there are popular phrases in which the term immunity is used. For instance, diplomatic immunity.

 We also have the concept of executive immunity. And that refers to a system in which, in some countries, presidents and vice-presidents and other people at the top of a government are protected from any kind of criminal arrest or punishment or charges. This derives from the earlier sovereign immunity which protected kings and queens from any kinds of criminal punishment based on the idea that the king was somehow divine and the king could do no wrong. These days executive immunity is considered to be a very undemocratic system and it is not widespread in the western world so much.

 Then of course there's the concept of immunity from prosecution and that occurs typically in a criminal case when there is a co-conspirator in the crime who maybe knows a lot of important information about the crime that the prosecutor would like him or her to testify about a trial. However, this particular witness or co-conspirator is afraid that if he or she testifies he will say something incriminating. Therefore, in order to get this person's testimony, the prosecutor grants immunity from prosecution to this witness.

 And then of course we have one more meaning, which is not a legal meaning but a medical meaning, and that is immunity from some sort of illness or disease.

 

 judgment, particularly the spelling of judgment

   The judgment is the decision of a court on a particular matter or issue before the court. Now the preferred spelling of judgment both in the United Kingdom and the United States is

J U D G M E N T. But if you look up the word judgment in any English language dictionary except for Black's Law Dictionary, there are two alternate spellings of judgment. Both are acceptable. But the second spelling J U D G E M E N T should not be used in Legal English.

 There is some difference in usage between the term judgment in the United Kingdom and the term opinion in the United States.

 From the House of Lords in the UK you would get a written judgment which would present the facts of the case and the court's rationale for reaching the judgment that they did reach on the particular matter. In the United States, the US Supreme Court would issue a similar document only it would be called an opinion, containing the same information, facts, rationale and ultimately the judgment or the holding in the particular matter before the court.

  

How precedents are established

 A precedent is a ruling that a judge has to follow when considering a case that raises similar legal issues. It's a foundation of common law legal systems.

So, how are precedents established?

 In England all criminal cases begin at the Magistrate's Court. And serious cases then get sent up for trial at the Crown Court. And the Crown Court is the first major criminal court in the UK

When my case is settled that's then set a precedent. If the prosecutor, the prosecution aren't happy with that, they appeal the decision. It goes up to the Court of Appeal, the Criminal Division. Now, the Court of Appeal can uphold the judgment of the Crown Court or they can overrule it. If they decide to overrule it,what then happens?

 The final Court of Appeal within the UK legal system, before going on to Europe is the Supreme Court and the Supreme Court could uphold the judgment of the Court of Appeal or they could overrule it and reinstate the original judgment. If they decide to reinstate the original judgment that's then set a precedent.

  The Supreme Court is generally bound by its own decisions. There are certain circumstances under which it will depart from previous decisions but for reasons of predictability it's very important that, as far as possible, they stick to their own decisions and all lower courts have to then follow that precedent.

 

 lease.

 Lease is a confusing term for some people because they don't quite know how to use it. Firstly, the verb lease. Who leases property? Well the landlord or lessor leases property to the tenant or the lessee.

  A landlord is the owner of a building or a house or an office space, for example, and he leases it to the tenant and the lessor, that's a wider term, that means the person who either owns the property or building or also owns the equipment or a car or something like that and they lease the property to the lessee.

 When we talk about leasing we're talking about renting out to someone. An example of that could be used in the following way – "the landlord agreed to lease the property to the tenant", so note the use of the term "lease to" in that sentence.

  Conversely, you can also talk about the tenant or the lessee leasing property from someone. So the tenant leases from the landlord and the lessee leases from the lessor. Basically, it means that they are renting it from those people.

  Bear in mind that individuals and legal entities can be landlords, tenants, lessors or lessees -- a legal entity being something like a company or a partnership. So you can see that the verb lease is very flexible and can be used by both to show that both lessors are leasing to someone and lessees or tenants are leasing from someone.

  The noun lease, i.e. a lease, is actually the agreement under which the landlord leases the property to the tenant or the lessor leases the property to the lessee.

 

 licence.

There are two different spellings of licence. L I C E N C E and L I C E N S E. Now this is important when you're talking about the noun licence which is the actual document that gives you the permission to do something or to own something and it's important in the context of the difference between UK and US  usage.

 In England, the noun, the document granting a licence, is spelled L I C E N C E. In the US  it is spelled L I C E N S E.

Now when it comes to the verb, it gets a little bit easier – the verb to license – which is the actual granting of, or conveying of, the giving of the licence or the permission to do something or own something. Then, in both instances, in the  UK and the US  the spelling is the same, L I C E N S E.

So in the US it's quite simple. License is always spelled L I C E N S E. In the United Kingdom, the spelling of licence is different if you're talking about the noun -- the actual document, the licence itself, then its L I C E N C E.

  (Be careful with the term debt – which is money owed. And this is not a spelling problem but a pronunciation problem. So debt is spelled D E B T. Whether you're in the United Kingdom or theUnited States it's pronounced debt as if it's just DET. You never pronounce the B.)

  

nil paid”.

 Nil paid” refers to a security that is tradable but that the original owner did not pay anything for. The original owner incurred no costs associated with it.

  By way of example, as a means of raising capital a company will offer shares to their existing shareholders at a discount. So it's either a right or an option to buy shares at a discount. Now the existing shareholders can sell these rights even though they are “nil paid”, meaning that the existing shareholders have not paid anything for these rights but they can nevertheless sell them to a third party.

 When you talk about something being “nil paid”, nil means none, zero, no, nothing, nothing's been paid. And its use generally is as an adjective when you talk about nil paid rights in this context.

   

persecute and prosecute.

Persecute means to torment, oppress or to treat somebody unfairly, usually because of their race, religion or perceived weakness or belonging to some sort of a social group. A person who commits a persecution is a persecutor.

  Prosecute means to bring legal charges against someone usually in a court of law and usually criminal charges. Those that bring prosecutions are called prosecutors.

In the US, prosecutors are known as district attorneys (D.A.) or state attorneys. In the United Kingdom, prosecutors are usually known as crown prosecutors as they work for the Crown Prosecution Services.

 Now it is possible these days if you are persecuted to be able to prosecute for that. Most countries have statutes which prosecute hate crimes or which are otherwise called bias-motivated crimes. A hate crime is typically a crime of violence, which is motivated by hatred of the group to which the victim belongs. Usually, this group is a racial group, a religious group, of a particular sexual orientation, a group of disabled people, or something like that. So these days you don't have to stand for being persecuted the way many religious and racial groups did all through time. They can contact their local prosecutors and see that their tormentors get prosecuted for persecuting them.

 

 ‘principal’ and ‘principle’

 They’re both pronounced the same way, but they’re entirely different terms - which lead to some confusion. And this is a mistake that’s made quite often.

 The noun ‘principle’, with an ‘le’ at the end, means a rule, doctrine, or standard. So an example sentence for that would be something like "A principle of management is that you should treat your employees like you want your employees to treat your customers".

 ‘Principal’, with an ‘al’ at the end and as a noun, means a person with an important role or a high position, or a person on whose behalf an agent acts. So some sample sentences for ‘principal’ would be "On Saturday the principals to the contract had a meeting".

 Another meaning of the noun, the person on whose behalf an agent acts, comes into play in Legal English when you’re talking about the law of principal and agent, or the law of agency. So you might say that "She serves as an agent for a principal who wishes to remain anonymous".

 ‘Principal’ with an ‘al’ at the end can also be used as an adjective. When it’s used as an adjective it’s generally used to describe something as being primary or chief or the most important. So, for example, one sample sentence would be "A faulty fuel line was the principal cause of the engine’s explosion" - so it’s the primary cause in that example.

 One final usage of the term ‘principal’ with an ‘al’ at the end would be in the context of banking, which may come up if you work with financial transactions, and that is ‘principal’ as a sum, particularly the sum that has been borrowed from a bank or lent from a bank, and on which the borrower is making payments. So an example sentence in that regard would be "The borrower was able to make the minimum payment which covered the interest but did not reduce the principal".

 

 pro bono publico

 The Latin phrase pro bono publico is usually shortened to just pro bono and it means for the public good.

 (Pro bono is not to be confused with Pro Bono which is someone who's just really into the band U2 and loves all their songs.)

  In the law context, it's offering legal services to someone else for free without receiving compensation and there's a number of reasons why you'd want to do this – just for the public good and your own good and for the client's good of course, but also many bar associations and law associations around the world now encourage pro bono service by either offering incentives to lawyers or in some cases even requiring a certain amount of hours to be devoted to pro bono work.

Pro bono is usually used as an adjective. You take a case on a pro bono basis, provide a pro bono service and you hire pro bono counsel. You may want to hire pro bono counsel, for example, in a dispute with the bank who keeps sending threatening letters to your home, hypothetically.

 

   public company

 There is often confusion over the term public company. Now a public company is actually a reference to a legal term which is a public limited company and this is a company that is permitted to offer its shares to the general public. This could be also by way of the stock exchange although companies which are on a stock exchange are often referred to as either listed or quoted companies.

 A public company should also be distinguished from a private company, also referred to as a private limited company. This is a company which is not permitted to offer its shares to the general public, but both public and private companies operate in what is known as the private sector.

  A public company should not be confused with what is known as a state-owned company. So a public company is a public limited company but it's not a state-owned company.

  A state-owned company is a company which is owned by the government for the benefit of the general public, but the difference there is that it operates in the public sector.

 

 

  sanction.

Sanction is a tricky word. It's ambiguous. It has two meanings and these meanings are contradictory.

It has both a positive and negative meaning. The positive meaning means approval of some sort, permission. The negative meaning means punishment or some sort of a strong action to make people obey.

 Now you may wonder, how do we know the difference – and it's very important to know the difference because they have such opposite meanings. Usually it is very contextual and we can see by the words that surround sanction what it means. For instance, in the phrase “to give sanction to or grant sanction to”  it usually has the positive meaning of granting permission or granting approval whereas the negative meaning of punishment is used in phrases like “issue sanctions against or impose sanctions on”

  And then we often see that the negative meaning is described by various different adjectives like criminal sanctions or trade sanctions or economic sanctions or we can talk about lifting sanctions, for instance we often hear:

 “The state will impose criminal sanctions against those who are convicted of a crime”.

 “The United Nations will impose trade sanctions on countries which violate human rights”.

  and these are always negative.

Sanction is also a verb and in the verb, just like in the noun form, we have these two meanings. For instance, you can say “the country's sanctioned the use of force against terrorists”. From that context we understand that sanctioned means that the countries have given their approval or permission to use force against the terrorists. Or, in the negative meaning, we can say that “the company sanctioned had to pay a fine of one million dollars”. We understand from the fact that they had to pay a fine that they were sanctioned in a negative way. That that was the way they were punished.

  We also have the adjective sanctionable. And again, just like the noun and the verb, this also has two meanings. For instance, we can say that “right now in California marijuana although it is legally not permitted it is socially sanctionable and medically sanctionable” and then we use the positive meaning. And for the negative meaning we can say that “the lawyer's failure to prepare for trial was sanctionable by the Bar Association” and here it’s clear that we know that it is a bad thing not to prepare for trial and that the Bar Association sanctions lawyers with disciplinary sanctions.

 

   tax evasion and tax avoidance.

 

 Tax evasion is escaping payment by illegal means. This is obviously unlawful and is usually a criminal offence and is subject to a prison term or a fine if one is guilty of it.

 The person guilty of such offence is referred to as a tax evader.

 An example sentence where you can use this is "It is likely that he will go to prison if convicted of tax evasion".

 Tax avoidance on the other hand is perfectly legal within the ambit of the law and is the legal use of the tax system to reduce taxes.

 This can take many different forms.

  Typical examples are where an individual changes their tax residence to a country which has a lower income tax rate, for example the Cayman Islands

 and a country like that. These sorts of countries are known as tax havens. An individual might also want to transfer assets to a company, which the individual indirectly owns or directly owns and this would also be a way of minimising the tax bill. A lot of business transactions are also set up in a way so as to avoid paying too much tax.

An example sentence of where the term tax avoidance is used is "The law firm set up a scheme that was aimed primarily at tax avoidance".

 There is also another term which is used, tax mitigation. This is avoiding tax legally, but it's more in the context of typical family tax planning where, for example, you move assets to your spouse in order to minimise your personal tax bill and make use of their tax allowances.

  Bear in mind that there is often a fine line between avoiding tax which is legal and tax evasion, evading tax, which is illegal. As a tax lawyer you should be very careful to make sure that your clients do not cross that line.

   

Therefore vs therefor

 

These words look and sound the same, so they are mixed up or used improperly. The words are therefore with an E at the end, and therefor without an E at the end.

 

 The worst thing about these two words is that even the best non-native English speakers get it wrong. So what's the difference between these two words?

Therefore means 'for that reason' or 'consequently' or 'thus', whereas therefor without the E just means 'for that' or 'for it'.

 So some examples of therefore – a good sentence of therefore with an E would be:

 "Therefore the Court found the evidence unconvincing"

 Whereas for therefor without the E, a good sentence would be:

 "The applicant must submit the application form and any supporting documentation therefor in two weeks' time".

 The therefor means 'for it', the 'it' being the application.

 

robbery, burglary, theft and larceny.

 All of these are takings, but they are distinguished by the means, the methods and the victims of these takings.

 We will start with theft and larceny. These two words are synonymous and they refer to the simple taking of anything of value with an intent to permanently deprive the owner, that is an intent to keep whatever you've stolen. Common examples of theft and larceny are, for instance, shoplifting, taking something from a store. And there are several degrees of theft and larceny. Unlike in other crimes when we talk about first degree, second degree, third degree to explain the seriousness of the crime, usually when we talk about theft and larceny we talk about grand larceny or petty theftand the difference between a grand and a petty crime when it comes to theft and larceny is usually about five hundred American dollars depending on the jurisdiction. So, for instance, if you steal a few paperback books from a bookstore you will probably be charged with petty larceny. However, if you steal a car from an open public parking lot you will probably be charged with grand larceny, otherwise known as grand theft auto.

 Now if we add another element to the taking crime, if we add the element of an unlawful entry, then you get a burglary, and unlawful entry is sometimes called breaking and entering or housebreaking, but it is also an element of a burglary and when you burgle, as you would do in British English, or burglarize a premises, it means you have entered that premises to take something or to otherwise commit another crime.

 Robbery deemed to be the most serious, is a foreceable stealing from a person. This time we're adding a person. In the previous examples, we stole a car from an open parking lot, no people there. We stole books from a store, there might have been people around, but we didn't do the taking from a person. Now we are actually adding real or threatened physical force.

 So, for instance, a mugging, when you hold somebody up on the street, in public, that's an example of a robbery. A purse snatching when you steal somebody's purse from their body, that's a robbery. A car-jacking when you steal a car with somebody in it, that's another example of a robbery. Or one of the most popular robberies these days, stealing a mobile phone from somebody's hand or pocket, that's also a robbery. Now the actual threat or force does not have to be real. All it needs to be is threatened or assumed by the victim.

Now just so that you know, the names of people that commit these crimes. If you commit a theft and larceny, you are a thief. If you commit a burglary, you're a burglar. If you commit a robbery, you're a robber.



ultra vires.

  Ultra vires is a Latin phrase which means beyond or outside the powers of and the ultra vires doctrine is usually applied in reference to the actions of corporations or directors or government bodies and public authorities.  

 With regards to corporations, a corporation may be set up for a specific purpose. If a company enters into a contract which is outside the purpose for which the company has been set up then the company can be said to have entered into an ultra vires contract. Directors of a company have certain powers or limitations in their powers. If they should go beyond their powers or exercise the powers in a wrong way then we can say that they have carried out ultra vires actions and shareholders may then sue the directors to recover losses for ultra vires acts.

 With regards to government bodies or public authorities, there may be statutory instruments which determine what these public authorities or bodies are allowed to do as well as the procedure or process for them to carry out their various actions. Should these public bodies go beyond the powers given to them by statute or should they not follow the rules in coming to a certain decision, then the decision made can be challenged as being ultra vires or outside the power of that particular body.

 

 Amicus curiae brief

 This phrase literally in Latin means friend of the court.  In practice, an amicus curiae is a person or an organisation who is not actually a party to the case but gets involved, in the way that they file a brief -- some papers -- to the court in order to advise the court to give them their opinion.

 Now why would you want to be involved in a case that you weren't actually a party in?

 The reason is usually there are many cases that have a very widespread effect. They don't just affect the plaintiff and the defendant who are in the case but may have an effect on public policy and so will affect everybody in that jurisdiction or in the country. In those kinds of cases, people that have some sort of an opinion about the outcome and how it might affect them might want to have a say in the matter. They would like to somehow shine a light on all possible considerations for the court to look at so the court can understand how its ruling might affect everybody.

 These people or organisations, seek permission to file an amicus brief with the court. The court doesn't want to be flooded with millions and millions of amicus briefs – there's only so much you can read in each case -- so they use their discretion in order to grant only certain persons and organisations the right to file amicus briefs.

This is a practice that exists in most common law countries. It is used most commonly in the  US, in the UK

 it is usually the Attorney General who will act as an amicus in representing the public interest. But in the US we find all sorts of individuals and organisations involved in filing amicus briefs. For instance, in environmental cases, you have environmental organisations like Greenpeace or the World Wildlife Fund that file briefs. In criminal cases, the American Civil Liberties Union often files briefs on behalf of criminal defendants whom they feel have had their rights violated by the police or the courts.

  Amici is plural in Latin for amicus and we use it for that reason.

  There is a recent case in which there were quite a few amici curiae. This is a case filed by the University of Alabama who was very unhappy about the fact that there is a painter who often painted football scenes with a football team wearing uniforms that were the colours used by the University of Alabama in its uniforms. So the University of Alabama sued for violation of trademark protection. They sued the painter. There were twenty seven other universities that agreed with the

University of Alabama and felt that schools' colours should be protected and not used by anyone else so they also filed amici curiae briefs in order to support the views of the University of Alabama.

 

Authority, binding authority, ostensible authority

 

There are two types of authority that will be considered by judges when coming to a judgment in a case. The first type of authority is binding authority, and then we have persuasive authority.

 There are two sources of binding authority. The ratio decidendi which is more commonly known as the ratio in British English, Americans refer to the rationale of a case, and statutes. The ratio of a case is the principle, the ground, the reason for a decision in a case. And this is what forms a precedent. And a precedent then is the ruling which has to be applied in future cases where something comes up to a court which covers similar facts, similar legal issues and generally a court will be bound by itself – there will be certain exceptions under which a court can overrule one of its own judgments, generally it binds itself and also all lower courts.

 The second source of binding authority is statutes, or legislation – so written law. Law that is enacted by the legislative branch of government, that is by the legislature.

Binding authority is not the only form of authority that will be considered by judges. They can also consider persuasive authority. Persuasive authority, as the name implies, can help convince or persuade or can help a judge reach a decision, but he's not actually bound to follow those authorities. And these are the most common examples. The ratio being the ruling is applied as precedent. Anything else that a judge says in a case that isn't ratio, is said in dicta or obiter dicta. More commonly we talk about what a judge says in dicta and these are the kinds of things, the other things that a judge says in a judgment. He might consider what the law would have been had the facts been slightly different, for example.

  Dissenting judgments can also be considered. And a dissenting judgment is a judgment that is given by a judge who does not agree with the majority opinion. And sometimes they say things that could be considered by judges in future cases.

 And finally, another form of persuasive authority would be other legal writings, especially authoritative legal writings: maybe an interesting article or a well-written article about a new piece of legislation that's been published in a legal journal.

  

 Bona fide (good faith bad faith)

 Now, in modern English usage the term bona fide is a synonym for credentials or background or documentation as to one's identity, so for instance we could say  "he was quick to defend his white collar bona fides",  pointing out that he has personally prosecuted white collar criminal matters. There we mean the fact that he has good credentials in prosecuting economic crimes or white collar criminal matters.

  It is also worth noting that there are quite a few phrases which use bona fide, so for instance, a bona fide purchaser is a legal term that refers to an innocent party who has purchased property without any notice of a third party's claims.

 Similarly, a bona fide holder is someone who has taken a financial instrument in good faith and now holds it, has taken that instrument at an appropriate price in the ordinary course of business and so this holder has no way of knowing that this instrument may not be free from other claims.

  In tax law we talk about a bona fide business purpose and that means that you have a real business purpose for performing a transaction and that is part of a tax authority's determination of whether there was a true business reason for making a certain transaction.

  Finally, we have bona fide residence and that is a place where somebody actually lives.

  Then we have the term mala fide which means bad faith and is the antonym or opposite of good faith.

 

 
 Caveat emptor, caveat

 Caveat emptor is a maxim, or a very widely-accepted saying that in Latin means “may the buyer beware” and that is it's legal import. What it means is that the buyer takes on the risk regarding the quality or condition of the property purchased.

  This is a very old rule and it was the general rule for everything until modern times. However, these days, in the UK and the US

as well as most other common law countries, there's a lot of modern consumer legislation and this usually provides that the consumer is entitled to a refund, an exchange or a credit for goods that are defective.

  However, in non-consumer situations, the doctrine of caveat emptor still can often apply. For instance, when buying real estate the buyer is expected to be proactive in order to make sure that there are no defects hidden or otherwise in the real estate and that they are not subjected to any kind of fraud or scam. Also, in buying used goods, like a used car, often the buyer has the risk, bears the burden of making sure that he or she gets what she bargained for or what she paid for and that there are no defects in the car because they will not be able to return the car and get money back because of the doctrine of caveat emptor.

  The word “caveat” is often used by itself just to mean a warning. For instance, you could say that the regulatory agency issued a caveat to citizens to do something or not to do something.

  We also have the phrase caveat venditor and this means the opposite of caveat emptor, it means “let the seller beware”. And the result of this is that it means that unless a seller explicitly disclaims liability for something it will be held liable for any defective goods. This only applies where legislation states so and, as you understand, it is the complete opposite of caveat emptor.

  

Res ipsa loquitur

 

This literally means the thing speaks for itself. And this is a legal doctrine that refers to situations where it is assumed that an injury was caused by negligence because the accident which caused the injury was the sort that absolutely wouldn't happen without negligence.

The classic example is the person who has an operation, has her appendix removed, and then some time after the operation she still has pain in her stomach, goes back to the doctor, takes an x-ray and sees that the scalpel, or the surgical knife, was still inside of her when she was sewn up. This is a clear case of res ipsa loquitur. There is no reason other than negligence that a doctor would sew a scalpel into somebody's stomach. So this would mean that if she were to sue the doctor or the hospital, all she would have to put into evidence was the fact that there was a scalpel sewn up in her stomach. That would be enough to imply that there was negligence and it would shift the burden of proof to the defendant in this case, the doctor or the hospital, to prove that there was some other non-negligent reason for leaving that scalpel in her stomach.

 

 Other classic examples of the use of res ipsa loquitur are, for instance, where a dead mouse is found in a soda bottle. There's absolutely no reason for a dead mouse to be in a soda bottle except that there was some negligence when the soda was being packaged.

 Now this is a mouthful. People don't always say it. They sometimes just talk about a res ipsa case or just sometimes say res ipsi. This is not a bad idea to use these shorted forms because loquitur is hard to say and is very often misspelled. So there is nothing wrong with talking about a res ipsa case.

 Now there are a few other common situations in which res ipsa loquitur is applied as a doctrine, for instance, when two trains collide, because there is no good reason for trains to be in the same place at the same time without negligence. When commercial airlines have an airplane accident that can only be caused by negligence, it is assumed. Or, a case that everybody reads about when they are in law school. When you're walking down the street and a piano flying from the air hits you on the head.

 As you can understand, in all of these cases the thing speaks for itself and there's no need for further explanation to show that there is negligence.

 

 Board of directors takeover

 shark repellent, also known as a porcupine provision, is a strategy used by corporations to fend off unwanted or hostile takeovers.

  There are many examples of this.

  One example which many have heard is the golden parachute which is a contract with top executives that makes it extremely expensive to get rid of existing management.

  Another example is called a defensive merger, in which the target company combines with another organisation that would create anti-trust or other regulatory problems if the original unwanted proposal were to be consummated.

  Another example is the staggered board of directors, which is a way to make it more difficult for the corporate raider to install a majority of directors sympathetic to his or her views. And last but not least is a super-majority provision. This might increase from a simple majority to two-thirds or three-fourths, the shareholder vote required to ratify a takeover by an outsider, making it virtually impossible to achieve.

 Although this concept is well-intentioned, many shark repellent measures are not in the best interest of the shareholders as the actions may damage the company's financial position and interfere with the management's ability to focus on critical business objectives. Again shark repellents often benefit corporate officers more than the stock holders.

 Wholly owned subsidiary parent company subsidiary

  The term subsidiary refers to a company who is controlled or owned by a higher entity which is generally referred to as their parent company or just the parent.

 A wholly owned subsidiary really means that the subsidiary is entirely or completely owned by the parent company. Wholly in this sense meaning entirely or completely, and generally it means that the parent company owns 100% of the common stock or the ordinary shares of the subsidiary.

  Normally just to have a parent-subsidiary relationship, the parent company would have to own at least 50% of the subsidiary, but as we said, in this situation it means that they not only control the subsidiary but completely and entirely own all shares in the subsidiary.

 

Capital asset

 

 When you refer to the useful life of an asset you are also referring to the asset's economic life. Now this may not be the same as the physical life of an asset which actually may be longer than its useful life, but we're actually referring to how long the benefits of using the asset outweigh the costs of using the asset and it's important to know the useful life of an asset so that the costs of the asset can be depreciated over the useful life of the asset.

  The useful life of an asset may be affected by, for example, technological changes. Changes in technology may make the costs of producing various items with certain assets more expensive than the benefits of using the asset to produce those items.

  Or changes in consumer tastes, which mean that consumers no longer want the item that is produced by the asset so that continuing to use the asset is just too expensive.

  Thirdly, the costs of repair in that it becomes too expensive to repair the asset. In other words, replacing the asset is actually a cheaper alternative than continuing to repair the asset. In the United States, the Internal Revenue Service has its own depreciation table in which it lists the useful life of many assets and these can be used by accountants in determining the useful life of an asset for accounting purposes.

         Trust


A trust is a legal device used to set aside the money or property of one person, called the settlor, for the benefit of another person – 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.

It's important to note that a trust is not a legal person. The settlor transfers the property like shares or real estate to trustees who own the trust property with respect to third parties.

The trustees have what are called fiduciary duties vis-à-vis the beneficiaries of the trust. Fiduciary duties are the legal duty of a professional in a position of trust to act in the best interest of a client or beneficiary. What this means is, the trustees have a duty to manage the trust property, what's called the corpus of the trust, for the benefit of the beneficiaries. In this way, a trust permits the separation of legal ownership and beneficial interest.



appendices, exhibits, schedules, annexes and attachments


Today we're going to be talking about appendices, exhibits, schedules, annexes and attachments.

One of the most common questions in the Legal English context is what to call the materials that supplement a contract. 

The terms appendix, exhibit, annex and attachment all refer to something which is attached or added to a document and thus are often used interchangeably and represent only a matter of style or personal preference. However, there are some subtle differences and settings in which one of the terms is more commonly used.

An appendix is a collection of supplementary material usually at the end of a contract. It can also be at the end of a book in the literary world.

An exhibit on the other hand, is a supplement to either a contract or more often a brief or other submission to a court.

Note however that supplementary materials to contracts are more commonly referred to as appendices in England, whereas exhibit is the preferred term in the US. In both jurisdictions however, exhibits are far more common in court pleadings, given that such supplements are often later used as exhibits at trial.

An annex is another term used to refer to something that's attached, appended or added to a record or other document. In practice, the term can also be used interchangeably with appendix and exhibit. However, annex is used less frequently than either appendix or exhibit in most legal agreements, with the exception of treaties or similar documents with an international effect. In such cases, annex is commonly used to refer to the materials which supplement the treaty.

An attachment can also be used to refer to items or documents which are appended to a main document. However, the term has recently become more common when used to refer to a document which is attached to an e-mail that can be opened by the recipient separately from the e-mail itself.

And finally, a schedule generally refers to materials that could be in the main contract but are instead moved to the end usually due to their length in an effort to achieve clarity and brevity in the main contract. For this reason schedules are often considered to be part of the main contract and are sometimes required to be separately signed by both parties.


  "in camera"

 

Today we're going to talk about the phrase "in camera" and that is a phrase derived from Latin literally meaning "in a chamber".

This term usually applies to court cases or portions of cases which are conducted in private.

This can take place either in a Judge's private chambers or office or in a courtroom from which the public and the media have been excluded. 

Certain cases may be ordered to be held in camera where highly sensitive matters are concerned, for instance, where children are victims of sexual crimes. Similarly, certain portions of trials may be held in camera if there are highly confidential facts, for instance, trade secrets or even top secret national security matters which a party does not want revealed to the general public.

trial in camera is the opposite of a trial in open court.

Not just courts, but boards of directors of companies and other organisations sometimes hold their meetings in camera when they deal with confidential matters like advice that is subject to the attorney/client privilege. Also, local government councils and committees hold in camera meetings sometimes when dealing with personal matters about identifiable individuals or town employees or even during labour negotiations.

We hear the phrase in camera in contexts like the following:

"The proceedings were held in camera to protect the young victims and witnesses from public exposure".

We also talk about conducting hearings in camera or that the court sometimes conducts in camera review of documents.

 Deed


Deed is a commonly confused term. It can mean a couple of different things for lawyers. One, it can simply be an act, i.e., a deed done, but it can also be a document and it can be as simple as a written instrument by which land is conveyed or transferred, or a written document which is required by law to be executed in a particular way or in a particular order to be enforceable.

Traditionally this meant signed, sealed and delivered. Today it often requires no more than the simple signature of one person.

Documents that are required to be executed as deeds may include certain agreements such as a transfer of real property as I just mentioned, or where there's a lack of consideration, and by consideration we mean in the contractual sense – the common law contractual sense, which is the thing that's done or given or the promise to do so by one party to a contract in exchange for the act or promise of the other party to a contract.

So in those situations, like when you have the confirmation or creation of a right or an interest, like the power in a power of attorney or the confirmation or creation of a binding obligation such as a guarantee, you can have a deed in lieu of consideration. 

So if the formal requirements for execution are met, the deed is enforceable regardless of the lack of consideration which would otherwise be required in a normal contract.


 ex post facto

 

Today we're going to talk about the Latin phrase ex post facto and that literally means after the fact. This phrase, ex post facto, is usually used to refer to retroactive laws, that is, laws which change the legal consequences of acts which were committed before the law was made.

Now, in many countries ex post facto criminal laws are prohibited. They are seen as a violation of the rule of law as it applies in a free and democratic society. This is because there is a theory that it's unfair to punish a person for an act which was legal at the time that it was committed and the United States Constitution, among other countries' laws, provides that no State shall pass any ex post facto law. They believe that the people must be able to know the law. If ex post facto legislation were permitted, there would be no way of knowing whether one's actions are legal or illegal. 

However, in non-criminal contexts, ex post facto laws are sometimes permitted if they benefit the citizens, vis-à-vis the State. 

This phrase is usually used as an adjective as in the sentence

"the plaintiff challenges this amendment on ex post facto grounds".

We also see it in the phrase "ex post facto clause". The clause that I quoted to you before from the U.S. Constitution is known as the ex post facto clause, and we also talk about ex post facto provisions in laws.

This phrase is not only used when we're talking about laws, but we can also talk about, for instance, an ex post facto ratification of a contract or we can also talk about the fact that the President's advisors made an ex post facto reconstruction of the crisis.

And finally, we can use this phrase as an adverb as in the sentence "the town limits have been expanded ex post facto".


 demand letters


A demand letter, also known as a letter before action or a pre-action letter, is a formal notice demanding that the recipient perform a legal obligation. It's typically used to persuade the recipient to take or cease some action, rectify a problem, pay a sum of money, perform under a contract on specific terms and under a specific period of time, or to revoke a waiver of rights or simply to provoke a reaction which the writer can later use to his or her client's advantage.

A typical demand letter gives the recipient a chance to perform the obligation without being taken to court. Indeed, in many instances it encourages the recipient to settle the matter.

Overall, demand letters should be a firm statement of the client's positions and intentions, and while demand letters are often written to intimidate, they should not bully the recipient.

So here are some tips when you are writing a demand letter:

• Use plain English whenever possible to ensure that the letter is understood;
• Adapt the content to the recipient;
• Be polite and avoid personally attacking your adversary;
• Avoid common errors such as using inflammatory language and misstating the facts or the law; and, finally,
• Collect good examples of demand letters that you've come across in your practice as templates which you can use in the future.

 prima facie

This Latin phrase, prima facie is troublesome for a number of reasons, not least of which because of its pronunciations. 

Essentially though, what it means is evidence that's sufficient in law to establish a fact unless it's proved otherwise. In other words, it is considered to be true or at least adequate on first appearance, absent other information or evidence.

It's often used in litigation in the phrase 'prima facie case'. A prima facie case signifies the establishment of a legally required rebuttable presumption. In other words, a prima facie case is a lawsuit or even a criminal charge which on its face appears to be sufficient and supported by the requisite minimum of evidence. An example of this in use would be:

"The Plaintiff presented a prima facie case for breach of copyright and when the matter proceeded to trial, the Plaintiff successfully proved his allegations".

In a similar way, prima facie evidence is evidence that is sufficient to prove a factual matter at issue and justify a favorable judgment on that issue unless it's been rebutted, and a sample of that usage would be:

"The side contracts were prima facie evidence of knowledge".

 

 

 obiter dicta
 
This expression literally means "said by the way" or "statements made in passing" and the phrase obiter dicta describes statements, remarks or observations made by a judge in a ruling that are tangential or supplementary in deciding the case, that is, they refer to matters that are not essential to the decision.

Although they're included in the body of the opinion, these statements are not themselves legally significant, that is, the judgment of the court would stand on its own without them. The reason that they're there is to clarify the legal principle which the judge proposes to apply in his or her judgment.

So these statements, illustrations or analogies that make up obiter dicta, are not binding although they can be strongly persuasive because they let us know what the judges are thinking and how they might decide in other cases that have slightly different facts.

Now the weight given to obiter dicta usually depends on the seniority of the court and the eminence of the judge in question. So for instance, dicta from the late great British Judge, Lord Denning, could be extremely persuasive.

Now the term obiter dicta is actually plural. The less common singular form is obiter dictum. This phrase is usually shortened as merely dicta or dictum in both the US and the UK, however, sometimes we see the phrase shortened as obiter, but my suggestion to you is to use the full phrase "obiter dicta" whenever you want to talk about statements which are made in passing by a judge.

 

Consideration


Consideration is a commonly confused term because it really doesn't exist outside of common law contract, but in the context of contract law consideration is a vital element required to form a contract. Along with an offeracceptance and the intent to create legal relations, consideration is fundamental. As a general rule, a contract is not enforceable if there is no consideration. 
So what is consideration?
It's the thing that's done or given or the promise to do so by one party of the contract in exchange for the act or promise of the other party to the contract. The idea is that in order for a party to enforce a promise they must be given something quid pro quo for it, which begs the question, what's quid pro quo?
Well quid pro quo is a Latin expression which means something for something. It just signifies an equal exchange or substitution that one makes with another in return for something done or given or promised.
So consideration therefore is payment in any form under a contract, whether it's cash, shares, property, bananas, etc.

  

Limited Liability Company (LLC)

 The term LLC stands for Limited Liability Company and there is a little bit of confusion regarding this term primarily because the term means different things in different regions. In the United States for example, a LLC, a Limited Liability Company, refers to a specific type of corporation. A company which is limited by shares but also is limited in terms of how big it can be. It's limited in terms of how many shareholders it can have, how many directors in some states and the amount of share capital is also restricted. So it's really referring to a smaller, almost in terms of a closely held corporation which enables LLCs to be taxed differently, to be taxed like a partnership to get what they call passed through taxation. For that reason it's an extremely preferred form of corporate governance of company in the United Statesbecause you get the limited liability aspects of a company and you get the benefits tax wise with the passed through taxation.

The confusion lies in the rest of the world in which if someone refers to a Limited Liability Company they're really just referring to any sort of limited company, a company limited by shares, and it really has no bearing whether you call it a Limited Company or a Limited Liability Company in the UK. You're really referring to the same type of company in the sense that it's company limited by shares so that's where the confusion comes into play.
One advice here, because there is this distinction in the United States, is to avoid saying LLC or Limited Liability Company unless you are specifically referring to theUS company form. 
If you are referring just to a company limited by shares in general, you can take out the second liability and just refer to them as limited companies. This would distinguish a regular ordinary company limited by shares from an LLC.

 

 

CEO vs. Managing Director


There are two primary titles or names given to these individuals and that's either the CEO which standards for the Chief Executive Officer or Managing Director.
Most US companies will call the top or highest ranking corporate officer the Chief Executive Officer or the CEO, whereas in the UK Managing Director is the preferred designation. There is some overlap of course, some British companies which are now using CEO and vice versa, but at least traditionally these were the two titles for each region.
Either the CEO or the Managing Director typically reports to the Board of Directors and Board of Directors is another designation that has slight, subtle differences with respect to capitalisation in the US and the UK. Typically, in the UK the board of directors is all lowercase, whereas in the US we typically would write it with a capital B and a capital D. 

One final thing when it comes to CEO or Managing Director. What is an acting CEO? This generally means that it is an officer that's working in an intern capacity, temporarily. It signifies that they have not yet or will not become the permanent position holder. So if someone is the acting CEO they do have all the powers of the CEO for that time period and can act just as any other CEO would be able to but it means that they have not yet assumed the position of permanent CEO. They may or may not assume that position in the future. Generally it happens when, in the interim, when a CEO has stepped down, resigned or been removed and somebody else has to temporarily act in his or her place. 

 

      Actus reus.  Mens rea

 

Actus reus refers to the criminal act or the wrongful act, which must be proven to convict and accuse a person of a crime, and mens rea is the mental state or state of mind needed to commit a crime.
Many crimes require a specific mental intent on the part of the wrong doer. And examples of these different kinds of required mens rea are knowledge, wilfulness, maliciousness, scienter, recklessness or negligence. So these describe the states of mind which are needed in order to prove certain crimes.
For instance, for murder in the second degree, the statute in New York requires that a person has intent to cause the death of another person and in fact causes the death of another person and this constitutes murder in the second degree.


Intent is the mens reaCausing the death of another person, that is the act or the actus reus. But when we change the mens rea from intent to recklessness, even though we keep the same actus reus which is causing the death of another person, it gives us a different crime and that is the crime of manslaughter.
There are another group of crimes called strict liability crimes which do not require any mens rea in order to constitute an offence. That means that you can be found guilty for merely committing the act. A typical example of a strict liability crime is drunk driving. A drunk driver can be convicted and punished whatever was or wasn't on his or her mind. The only thing that must be proved is the actus reus, that you were driving a car while you were under the influence of alcohol.

   general meeting

In American Legal English we would generally refer to a meeting as a shareholder meeting or shareholders' meeting, whereas in British English it’s more common for them to refer to any meeting of the shareholders as a general meeting.

The two different types of general meetings is the Annual General Meeting -  (AGM) and the Extraordinary General Meeting (EGM).

By extraordinary or special we don't mean that something extraordinary or special is going on, it merely means that it is not the Annual General Meeting so there is a specific reason that a meeting has been called. It could be any number of things. So by extraordinary or special it just means that it's not the scheduled once a yearAnnual General Meeting.

You have general meetings, which is BritishShareholders' meetings are more American. At this meeting in British English you would say it was an extraordinary resolution, or extraordinary as they would say in British English and in American shareholders' meetings you would generally adopt a special resolution as a special shareholders' meeting.

 

 

Pro se

Talking about some Latin terms which have to do with representing yourself in court we will start with pro se. That's a Latin term meaning on one's own behalf and in a court setting it refers to persons who present their own cases without lawyers or other representatives. Now some people choose to act pro se because they have legal experience or they're otherwise very confident about their ability to convey their claim or their defence without any assistance. Other people may simply wish to avoid paying attorney's fees and the often exorbitant expenses associated with hiring a lawyer.

There are a few other Latin phrases which have the same meaning as pro se but they're just used in other jurisdictions. We have in propria persona which is often abbreviated as in proper and you hear it in a phrase like "the appellants are before this court in propria persona in the latest installment of their lengthy dispute".

And we have pro persona, very similar, and you would hear it in a phrase like "the accused raised additional issues in a pro persona brief".

In England and Wales a phrase that is usually used is an English phrase – litigant in person. Nice and easy to understand.

Now most pro se litigants are at a disadvantage in contested litigation. It may be awkward or inappropriate for them to appear both as counsel and as a witness. They're deprived of the judgment of an independent third party in framing the case, in evaluating how to present the evidence and in forming legal arguments and also in making sure that it is reason rather than emotion that steers how the case is conducted.

That's why Judges sometimes warn a party who is proceeding pro se of the old saying that anyone who represents himself in court has a fool for a client and an ass for an attorney.

 

 

lacuna

 

A lacuna is a gap or an empty space in the law. It was originally a Latin word meaning pit or hole and it was related to the word for lake or lagoon. It entered into usage in English in the middle of the 17th century but at that time it referred to a blank or a missing portion of a manuscript.

These days it describes a situation where the law is silent, that is, where there are no regulations applicable or where there is an absent part in the law or another written document such as a contract. In other words, it describes an instance where there is no controlling law or contractual provision.

It's more commonly used in British than American English, but lacuna is sometime synonymous with the word loophole or technicality which can be exploited to avoid the scope of a law or of a contract clause without directly violating or breaching the law or contract, that is, the lacuna allows you to circumvent or go around the intention of the drafters. For example, " the question of dual citizenship is a legal lacuna in some jurisdictions". That means it is unregulated and there is no law which specifically describes the relationship to dual citizens.

The plural form, lacunae, is preferable to lacunas.

 

 

Damages v damage

 

Damage is harm or injury to a person or property.

Damages are the monetary compensation awarded by a court for the damage.

So one classic example would be the infamous McDonald's hot coffee case in which Stella Liebeck spilled some hot coffee from McDonald's on her legs and she suffered third-degree burns to her skin and so this was the harm or injury to her person. She then sued McDonald's for damages. And that is the compensation that she wanted to make up for her harm or injury. The court awarded her damages to compensate her for the harm, the physical harm as well as the medical expenses that she had incurred in order to treat her injuries.

 

Doublets v couplets

 

The question is, do the words within doublets, also known as couplets, such as null and void and due and payable and cease and desist, do they have distinctive meanings?

The answer is no. Using both words is an unnecessary lawyerism since both mean exactly the same thing.

These doublets came into being in England following the Norman Conquest . Ssince the Normans spoke French, English courts were held in French. But now lawyers started using both English and French words in order to be understood. And that is one of the primary reasons why so many of these couplets or doublets such as aid and abetcease and desistnull and voiddue and payableindemnify and hold harmless, and others are still commonly used in legal drafting today. It's the desire to be clearly understood.

Today many consider it preferable to use one word rather than two. That said, it's still generally accepted practice to use them and when necessary, they can provide emphasis and clarity.

 

Subpoena

 

Subpoena, originating from the Latin phrase, sub poena, meaning under penalty, is a written command to a person to either testify before a court or to be subject to some sort of punishment. Subpoenas are generally associated with the common law legal systems.

Now these documents are usually served on individuals who will be witnesses in an upcoming trial or proceeding. And a subpoena itself usually sets forth the specific location, the scheduled date and time that the witness is requested to appear.

A subpoena duces tecum is a special kind of subpoena. It is one that commands the witness to produce documents to the court such as books, financial records or other papers. On a standard, modern subpoena duces tecum form which is served on a witness it states, "You are commanded to make available the documents and tangible things designated and described below" unquote and then it lists everything that the witness must bring to the court.

The word subpoena is also a verb and in that case it means to order that a person attend a court hearing or produce evidence. For example, "the committee has no choice but to subpoena the requested material" or "the federal prosecutor has dropped the case without having been able to subpoena the witness saying that she cannot be located".

Now the noun form also appears commonly. "They were trying to serve a subpoena on one of the Mayor's friends" or "Congress will interview officials from the White House under subpoena" or "the committee has subpoena power".

If you who think that subpoena is a difficult word to remember or to spell or to pronounce, in the UK it has been replaced by the term 'witness summons' as part of reforms to replace Latin terms with English terms which are easier to understand.

 

Verbatim

 

Verbatim means word by word or exactly. And what it really means is that when you're quoting something or reproducing someone else's quote, it means that the text itself is being reproduced and replicated exactly. There have been no changes made to the text at all. What you are reading is exactly what was said or was previously written. This is very important in the legal sense in a number of different areas when you're writing a brief or any sort of legal document and you're citing quotations from previous cases or from previous legal literature. It's really up to you as an attorney to make sure that the quote you are citing is verbatim, meaning it is exactly what the prior case or prior Judge or the prior source exactly said or stated.

This also comes into play at trial or pre-trial stages with respect to depositions or just the court transcript in general. A lot of times you will see these court reporters at trial transcribing everything that's happening and transcribing literally every single thing that the witnesses are saying verbatim. Now it's very important that these court transcripts and these deposition transcripts are verbatim so that we can get an accurate sense and an exact sense of what it is the witnesses are saying at trial and the lawyers themselves. 

     infer versus imply.


The verbs infer and imply are often confused. The important distinction is when a writer or a speaker implies something it means that it's indicated or suggested without being explicitly, expressly or clearly stated. In other words, it's indirect.
For example,
"Are you implying that my client is dishonest?"   or
"The text implies that each house must take its decisions by majority vote".
Conversely, a reader or listener infers or you can also say draws an inference, by drawing conclusions based on evidence or logical reasoning rather than from express statements or explicit statements. So some examples of the use of infer are:
"What did the question infer?" and
"One cannot directly infer one from the other".
A synonym that you can use or a synonymous phrase which you can use when referring to infer is to “read between the lines”.

 

 shareholders' rights of first refusal.


Shareholders have pre-emption rights, that is, rights for shareholders to be offered new shares issued in the company in order to protect shareholders against unwanted new shareholders and to prevent dilution of their percentage ownership in the company. 
Now what about the situation where a shareholder wants to sell or transfer those shares? Usually there's no restriction on shareholders transferring their shares. The general rule is that they can transfer their shares to whomever they want. However,existing shareholders may want the power to decide who becomes a shareholder. So it's common for a provision to be included in the articles of association or the bylaws of a company stating that shareholders who want to sell or transfer shares must first offer the shares to the other shareholders. This provision is also often included in a separate agreement which the shareholders entered into together known as the Shareholders Agreement.
So the effect of this provision is that any shareholder who wants to sell its shares to an outsider must first offer their shares to existing shareholders at a fair value. This gives the shareholders more control over who can own shares in the company and is an important safeguard for shareholders even though it does place a restriction on the transferability of shares.

  

boilerplate

 

Boilerplate clauses are standard legal language drawn from the extensive legal experience of law firms and companies around the world over hundreds of years.
Most contracts contain a series of boilerplate clauses which often appear under the heading "General" or "Miscellaneous". Problematically, these are often overlooked when drafting an agreement and, due to their supposed standard status, they are rarely reviewed with as much scrutiny as other clauses which are more specific for the deal in question. However, failing to review them in the context of each deal can be dangerous. One of the most common errors by lawyers drafting agreements is to simply cut and paste the boilerplate language from a previous agreement into a new agreement, often resulting in mistaken party names or irrelevant clauses in the worst-case scenario.
Standard forms may or may not be applicable to a particular situation and they may have been drafted for the benefit of the opposing party in the template agreement that you are using for the cut and paste. 
Accordingly, boilerplate clauses should merely be used as a starting point and must be customised for a particular transaction. The example on the whiteboard is a classic example of one of the dangers of boilerplate. As the clause reads: "This agreement represents the entire agreement between the parties and any previous understandings and agreements between the parties whether oral or written are hereby null and void." The problem with this entire agreement clause, which may also be called a merger clause or an integration clause, is that even though it is often included in contracts, if the parties to the contract have had previous dealings and they enter into multiple unrelated agreements in the past, this entire agreement clause would effectively nullify all of those prior agreements. In such a case, the entire agreement clause should be limited to cover only those previous agreements which deal with the same subject matter as the newly drafted agreement.

 

inter alia

 

Certain Latin phrases are still commonly used by lawyers especially in legal writing. One is the term inter alia which means among other things.
The way to use this is very simple. You just replace the English term, among other things, with the Latin term, inter alia. So for example, "He is suing the company for, inter alia, breach of contract". This means that he is suing the company not just for breach of contract but for other violations as well and one thing to note is that when you use this term, inter alia, it should always be within commas like this and generally in italics.
This is straightforward but what if we're talking about people, not things. This is where you need to use the term inter alios. This means among other people. For example, you can say "He is suing, inter alios, the company for breach of contract". This means that he's suing not just the company but other persons as well.

 

 preemption rights of shareholders in a company.

 

So what are preemption rights? Well, when a company wants to raise money it may decide to issue new shares which can be sold for cash. Existing shareholders of the company may want to buy these new shares firstly because they want to make further investment in the company, secondly to exercise control over who becomes a shareholder and thirdly, to avoid their existing shareholding being diluted, that is, their percentage of ownership would be reduced if new shares were issued to non-shareholders.

So in most jurisdictions shareholders are entitled by law to buy the new shares issued by the company before they are offered to third parties, i.e. non-shareholders. So the company must first offer the shares to the shareholders in proportion to their existing ownership. So a shareholder owning 10% of the shares would be entitled to buy 10% of the new shares in the issue. This shareholder may also have the right to buy more shares if other shareholders don't want them. This form of share issue is called a rights issue.

After the issue shareholders can maintain their proportional ownership of the company. If the company and therefore the shareholders want to issues the new shares to non-shareholders, i.e. to the general public, shareholders will need to disapply their statutory preemption rights in a meeting.

So preemption rights are an important safeguard and protection for shareholders.

 

 arguendo.

Arguendo is a Latin term which has different meanings.

In American legal English where it used most often, it means for the sake of argument or for discussion only. Thus, the term arguendo indicates that the lawyer's written or oral statement is made hypothetically or for argument or for illustration only. Making an assumption arguendo allows an attorney to present arguments in the alternative without admitting even the slightest possibility that those assumptions actually could be true. The statement made arguendo does not bear directly upon the remainder of the discussion and the lawyer is not admitting the matter, but is merely making a legal argument based on an assumption.

So the term is often used in situations where, even if one assumes that the facts are as the opposing party contends, the law or other circumstances nevertheless prevent them from prevailing. And here's the example of that: Assuming arguendo that the payment was delayed, as the opposing party is claiming, the Defendant is still not liable under the express terms of the Agreement. Here we have made an assumption that the other party was right but still proven that we would win anyway.

The term arguendo is commonly used in briefs to appeals courts and also in other litigation documents. In appellate courts a judge may ask counsel what the effects of a different set of assumptions made arguendo about the facts and circumstances in the case would be. And this is helpful in exploring whether different facts might change the scope of a possible holding in a given case.

The term arguendo is very often employed by law students or junior lawyers as a way to show off their new-found lawyerliness. And one advantage of the term arguendo is that it is nice and short, even though it’s Latin. However, a great disadvantage is that it is not commonly used or understood by lay people, so arguing before a jury or talking or writing for other non-lawyers it is better to use the entire phrase "for the sake of argument".

In British English, in contrast to what we just learned about American English, arguendo refers to something said during the course of an argument. For example, we would say "Ms Burke mentioned arguendo that her client had two prior convictions for armed robbery".

 So, make sure you use the right meaning in the right country.

 


Attorney General

Attorney General is a term that's used both in the United Kingdom and the United States but there are some slight differences between what the office does in both countries. 

In the United Kingdom the Attorney General is one of the law officers, in other words, he is a Member of Parliament who prosecutes for the Crown in certain cases, advises the governmental departments on legal problems and decides whether major criminal offences should be tried.

In the United Kingdom, as in the United States, the Attorney General is politically appointed and changes when the Government changes.

In the United States an Attorney General has essentially the same functions as in the United Kingdom but there is only one United States or Federal Attorney General. Each state has its own Attorney General. The United States Attorney General is appointed by the President of the United States and confirmed by the United States Senate. State Attorneys General can be either appointed by the Governor or be elected by the people of the state, depending on that state's electoral system.

The singular form is Attorney General and the plural is Attorneys General so you put the plural or the "s" on the first term, Attorney.

 supra and infra

Infra is the Latin word meaning below, under, beneath or underneath and it is legal shorthand to indicate that a particular reference will be further discussed or cited later in the same document.

Infra is distinguished from supra, which means above in Latin. And it means that the case or point has already been discussed or cited previously in that same document. 

Both infra and supra are tools to make a document, letter, brief or any other legal document easier for a reader to comprehend or to follow. Not only do they enable the writer to avoid having to repeatedly write the same citation, but they also signal to the reader that a particular point will be or has been explored elsewhere in the document. So they act as cross-references of all of the citations. 

In legal documents we underline them if we are writing by hand. On computers we put these in italics. So it's not only the Latin term supra or infra which is in italics or underlined but also the signal word, see.

We hear these words infra and supra all throughout the language, usually as prefixes. So, for instance, we hear infra as the prefix of words like infrastructure. And we see lots of words with supra as a prefix like supranational. 


persona non grata

Persona non grata is a Latin phrase which literally means an unwelcome person. It's a phrase which is used both in the legal and non-legal settings.

In a legal sense the phrase has a specific meaning in the diplomatic context. Now pursuant to the Vienna Convention on consular relations a state may at any time and without explanation declare any member of a diplomatic staff persona non grata. A person so declared is no longer welcome in that country and is usually forced to return to his or her native country immediately. 

In the non-legal sense the phrase is commonly used to refer to people who are generally unacceptable or unwelcome, for instance, an invited dinner guest. And also those who are no longer welcome in a group due to their actions, for instance, a police officer who snitches on his colleagues. 

The opposite of persona non grata is persona grata, however it is very rarely used, and additionally the plural is formed the Latin way and it is personae non gratae.


deposit and deposition

One of the most commonly confused terms are deposit and deposition.

Deposit is what you're probably most familiar with and that's merely placing funds or money into a bank account. There are other uses when you're depositing security and things like that, but it's placing or setting something in a position of trust.

Deposit is both the verb and the noun. You deposit money in a bank account, that's the verb and you make a deposit, that's the noun form.

The second term, deposition, is sometimes confused with this in the sense that sometimes people want to use the word deposition for the noun form of deposit, meaning "he made a deposition into the bank". This is actually incorrect in legal English.

Further complicating matters is the fact that the word deposition or deposition in certain other languages actually means to deposit. But in legal English the word deposition is something completely unlike the monetary meaning of deposit and a deposition is really a pre-trial interview of witnesses where prior to trial, in the course of litigation, you meet with potential witnesses and they are under oath or have some other means by which you are guaranteeing the truthfulness of their testimony. You take their testimony just as you would at trial with both sides having their counsel present and it's really a pre-trial stage, which is useful for evidentiary purposes and there's a whole other set of rules when it comes to depositions.

When you're dealing with money this deposit works for both the noun and the verb and you should really stay away from this term unless you are talking about this pre-trial interview of witnesses.

 

Stipulating damages in a liquidated damages clause

Liquidated damages are a fixed or determined sum agreed by the parties to a contract in advance to be payable upon the breach of the contract by one of the parties to compensate the injured party or the non-breaching party.

The purpose of liquidated damages is for the non-breaching party to avoid the costs which arise as a result of the difficult task of proving the amount of loss actually incurred due to a breach.

It's important to note that if a liquidated damages clause constitutes a penalty, it will be deemed void. So it's important to draft the clause in the contract such that it compensates the party for the anticipated loss caused by the breach but doesn't go beyond that and actually serve as a penalty.

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 also be noted that in all other cases where the Court quantifies or has to assess damages or loss, the damages are known as unliquidated damages.

 

Collateral

Collateral is a term used in various different contexts and has different meanings depending on how it is used. You may have seen it in terms of collateral evidence which means evidence that is supplemental or corroborative in a legal proceeding.

Collateral damage is a term that’s familiar to most of you, probably, which means secondary unintended damage. What’s the difference between collateral and security? What type of security is collateral? And the answer to that is fairly simple, it is that collateral is security.

Collateral is a term that’s mainly used in the United States for security meaning property which is pledged in satisfaction of a debt. So if a lender has loaned money to a borrower and a borrower needs to pledge something as security that property is referred to as collateral oftentimes in the US. So just like any other piece of security the collateral is subject to forfeiture and can be seized if the borrower fails to repay or live up to their debt obligations.

 

 Veto

 Veto comes from the Latin meaning I forbid and it is usually referring to the authority of an officer of the state to unilaterally block usually pieces of legislation. It can be any official action but it is normally referring to legislation that has been proposed or passed. Unilaterally means that it’s normally just one individual who has this power, the veto power. It’s generally only used to block a piece of legislation or an official action, not to pass anything. So the veto power usually similar to its Latin root I forbid, it means the person who has the power is utilising this authority to stop something from being passed or being enacted legislation wise. Usually the officer or the person utilises their veto power in order to maintain the status quo and status quo is another example of a legal term that you see still today. Status quo meaning the current state of things. Generally the veto power is, as I said, used to maintain the status quo, to keep things as they are and to block or stop a proposed piece of legislation or official action.

 

Tax avoidance vs tax evasion

 

Tax evasion is escaping payment by illegal means. This is obviously unlawful and is usually a criminal offence and is subject to a prison term or a fine if one is guilty of it.

The person guilty of such offence is referred to as a tax evader.

An example sentence where you can use this is "It is likely that he will go to prison if convicted of tax evasion".

Tax avoidance on the other hand is perfectly legal within the ambit of the law and is the legal use of the tax system to reduce taxes.

This can take many many different forms.

Typical examples are where an individual changes their tax residence to a country which has a lower income tax rate, for example the Cayman Islands and a country like that. These sort of countries are known as tax havens. An individual might also want to transfer assets to a company, which the individual indirectly owns or directly owns and this would also be a way of minimising the tax bill. A lot of business transactions are also set up in a way so as to avoid paying too much tax.

An example sentence of where the term tax avoidance is used is "The law firm set up a scheme that was aimed primarily at tax avoidance".

There is also another term which is used, tax mitigation.

Now this is avoiding tax legally, but it's more in the context of typical family tax planning where, for example, you move assets to your spouse in order to minimise your personal tax bill and make use of their tax allowances.

So bear in mind that there is often a fine line between avoiding tax which is legal and tax evasion, evading tax, which is illegal. As a tax lawyer you should be very careful to make sure that your clients do not cross that line.

 

Supra vs infra

 

Infra is the Latin word meaning below, under, beneath or underneath and it is legal shorthand to indicate that a particular reference will be further discussed or cited later in the same document.

Infra is distinguished from supra, which means above in Latin. And it means that the case or point has already been discussed or cited previously in that same document.

Both infra and supra are tools to make a document, letter, brief or any other legal document easier for a reader to comprehend or to follow. Not only do they enable the writer to avoid having to repeatedly write the same citation, but they also signal to the reader that a particular point will be or has been explored elsewhere in the document. So they act as cross-references of all of the citations.

When we write these terms in legal documents we underline them if we are writing by hand or write on computers and then we put these in italics. So it's not only the Latin term supra or infra which is in italics or underlined but also the signal word like in this case, see, which we underline or put in italics.

We hear these words infra and supra all throughout the language, usually as prefixes. So, for instance, we hear infra as the prefix of words like infrastructure, which means an underlying base or foundation especially in the case of an organisation or system. And we see lots of words with supra as a prefix like supranational, which means above the authority of a nation.

 Warranty vs guarantee

 

Warranty – this term is derived from the same root word as guaranty and used colloquially as having the same meaning as guaranty in that it is a promise that something is true or will be in the same condition for a period of time.

Guaranty – In commercial usage the terms warranty and guaranty are sometimes erroneously used interchangeably. The difference between the terms lies in the application of time. A guaranty is understood as a collateral warranty (often a conditional one) against some default or event in the future, the breach of which may give cause for damages. It speaks to future events. On the other hand, the term “warranty” entails an absolute undertaking, in praesenti, against a defect, or for the quality or quantity contemplated by the parties.

NOTE: A guaranty in the banking/capital markets sense is a promise (i.e. a noun) to answer for the debt of another in the event the party primarily responsible fails to pay. Guaranty in this context may also be used in US English as a verb. In British English only the spelling guarantee is used. In US English a guarantee is the person to whom a guaranty is made (i.e. guarantor – guarantee).

  

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