DIVAH  SPRIK LawNotes 

c.i.f. 
n. the total of cost, insurance and freight charges to be paid on goods purchased and shipped.
 

calendar 
1) n. the list of cases to be called for trial before a particular court; 2) v. to set and give a date and time for a case, petition or motion to be heard by a court. Usually a judge, a trial setting commissioner, or the clerk of the court calendars cases.
 

calendar call 
n. the hearing at which a case is set for trial. 
 

call 
n. the demand by a corporation that a stockholder pay an installment or assessment on shares already owned 
 

calumny 
n. the intentional and generally vicious false accusation of a crime or other offense designed to damage one's reputation. 
 

cancel 
v. to cross out, annul, destroy, void and/or rescind a document. Cancelling can be done in several ways: tear up the document or mark on its face that it is cancelled, void, or terminated if the debt for which it stood has been paid. It is important that the document (like a promissory note) itself become no longer operative either by destruction or marking, so that it cannot be used again.
 

cancellation 
cancel 
 

caning 
n. a punishment for crimes employed in certain Asian countries (notably Singapore) even for misdemeanors (lesser crimes) in which the convicted defendant receives several lashes with a flexible "cane" meted out by a husky and skilled whipper.
 

canon law 
n. laws and regulations over ecclesiastical (church) matters developed between circa 1100 and 1500 and used by the Roman Catholic Church in reference to personal morality, status and powers of the clergy, administration of the sacraments and church and personal discipline. Canon law comprises ordinances of general councils of the church, decrees, bulls and epistles of the Popes, and the scriptures and writings of the early fathers of the church. Canon law has no legal force except within the Vatican in Rome, Italy, and in those nations in which the Catholic Church is the "official" church and where it prevails in religious matters which may affect all citizens (such as abortion and divorce). In Great Britain there is also a body of canon law dating back to pre-reformation in the 16th Century, which is used by the Anglican (Episcopal) Church. Canon law is not to be confused with professional canons, which are rules of conduct with no religious connection.
 

cap 
n. slang for maximum, as the most interest that can be charged on an "adjustable rate" promissory note
 

capital 
1) n. from Latin for caput, meaning "head," the basic assets of a business (particularly corporations or partnerships) or of an individual, including actual funds, equipment and property as distinguished from stock in trade, inventory, payroll, maintenance and services. 2) adj. related to the basic assets or activities of a business or individual, such as capital account, capital assets, capital expenditure, and capital gain or loss. 3) n. an amount of money a person owns, as in "how much capital do you have to put into this investment?" as distinguished from the amount which must be financed.
 

capital account 
n. the record which lists all basic assets of a business, not including inventory or the alleged value of good will.
 

capital assets 
n. equipment, property, and funds owned by a business.
 

capital expenditure 
n. payment by a business for basic assets such as property, fixtures, or machinery, but not for day-to-day operations such as payroll, inventory, maintenance and advertising. Capital expenditures supposedly increase the value of company assets and are usually intended to improve productivity.
 

capital gains 
n. the difference between the sales price and the original cost (plus improvements) of property. 
 

capital offense 
n. any criminal charge which is punishable by the death penalty, called "capital" since the defendant could lose his/her head (Latin for caput).
 

capital punishment 
n. execution (death) for a capital offense. 
 

capital stock 
n. the original amount paid by investors into a corporation for its issued stock. Capital stock bears no direct relationship to the present value of stock, which can fluctuate after the initial issue or first stock offering. Capital stock also does not reflect the value of corporate assets, which can go up or down based on profits, losses, or purchases of equipment. Capital stock remains as a ledger entry at the original price.
 

capitalization 
n. 1) the act of counting anticipated earnings and expenses as capital assets (property, equipment, fixtures) for accounting purposes. 2) the amount of anticipated net earnings which hypothetically can be used for conversion into capital assets.
 

capitalized value 
n. anticipated earnings which are discounted (given a lower value) so that they represent a more realistic current value since projected earnings do not always turn out as favorably as expected or hoped. 
 

capricious 
adv., adj. unpredictable and subject to whim, often used to refer to judges and judicial decisions which do not follow the law, logic or proper trial procedure. A semi-polite way of saying a judge is inconsistent or erratic.
 

caption 
n. the first section of any written legal pleading (papers) to be filed, which contains the name, address, telephone number of the attorney, the person or persons the attorney represents, the court name, the title of the case, the number of the case, and the title of the documents (complaint, accusation, answer, motion, etc.). Each jurisdiction has its own rules as to the exact format of the caption.
 

care 
n. in law, to be attentive, prudent and vigilant. Essentially, care (and careful) means that a person does everything he/she is supposed to do (to prevent an accident). It is the opposite of negligence (and negligent), which makes the responsible person liable for damages to persons injured. If a person "exercises care," a court cannot find him/her responsible for damages from an accident in which he/she is involved.
 

careless 
adj., adv. 1) negligent. 2) the opposite of careful. A careless act can result in liability for damages to others.
 

carnal knowledge 
n. from Latin carnalis for "fleshly:" sexual intercourse between a male and female in which there is at least some slight penetration of the woman's vagina by the man's penis. It is legally significant in that it is a necessary legal characteristic or element of rape, child molestation, or consensual sexual relations with a female below the age of consent ("statutory rape").
 

carrier 
n. in general, any person or business which transports property or people by any means of conveyance (truck, auto, taxi, bus, airplane, railroad, ship), almost always for a charge. The carrier is the transportation system and not the owner or operator of the system. There are two types of carriers: common carrier (in the regular business or a public utility of transportation) and a private carrier (a party not in the business, which agrees to make a delivery or carry a passenger in a specific instance). 
 

carryback 
n. in taxation accounting, using a current tax year's deductions, business losses or credits to refigure and amend a previously filed tax return to reduce the tax liability.
 

carrying for hire 
n. the act of transporting goods or individuals for a fee. It is important to determine if the carrier has liability for safe delivery or is subject to regulation. 
 

carrying on business 
v. pursuing a particular occupation on a continuous and substantial basis. There need not be a physical or visible business "entity" as such.
 

carryover 
n. in taxation accounting, using a tax year's deductions, business losses or credits to apply to the following year's tax return to reduce the tax liability.
 

cartel 
n. 1) an arrangement among supposedly independent corporations or national monopolies in the same industrial or resource development field organized to control distribution, set prices, reduce competition, and sometimes share technical expertise. Often the participants are multinational corporations which operate across numerous borders and have little or no loyalty to any home country, and great loyalty to profits. The most prominent cartel is OPEC (Organization of Petroleum Exporting Countries), which represents all of the oil producing countries in the Middle East, North Africa and Venezuela. Many cartels operate behind a veil of secrecy. 2) a criminal syndicate like the international drug cartel headquartered in Colombia.
 

case 
n. short for a cause of action, lawsuit, or the right to sue (as in "does he have a case against Anil?"). It is also shorthand for the reported decisions which can be cited as precedents.
 

case law 
n. reported decisions of appeals courts and other courts which make new interpretations of the law and, therefore, can be cited as precedents. These interpretations are distinguished from "statutory law," which is the statutes and codes (laws) enacted by legislative bodies; "regulatory law," which is regulations required by agencies based on statutes. The rulings in trials and hearings which are not appealed and not reported are not case law and, therefore, not precedent or new interpretations. Law students principally study case law to understand the application of law to facts and learn the courts' subsequent interpretations of statutes.
 

case of first impression 
n. a case in which a question of interpretation of law is presented which has never arisen before in any reported case. 
 

case system 
n. the method of studying law generally used in Indian law schools, in which the students read, outline (brief), discuss and hear lectures about the cases. Each case presented stands for a particular rule of law in the subject matter covered and is contained in "casebooks" on particular topics (contracts, torts, criminal law, constitutional law, agency, etc.). The system is useful since it relates the law to real and factual situations which assist students in memorization and encourages deductive reasoning. The case system is reinforced by textbooks and outlines on the subject matter, which were formerly the principal sources of learning. 
 

cashier's check 
n. a check issued by a bank on its own account for the amount paid to the bank by the purchaser with a named payee, and stating the name of the party purchasing the check (the remitter). The check is received as cash since it is guaranteed by the bank and does not depend on the account of a private individual or business. Cashiers' checks are commonly used when payment must be credited immediately upon receipt for business, real estate transfers, tax payments and the like.
 

casual 
adj. defining something that happens by chance, without being foreseen, or informally. This includes "casual" labor or employment, which is someone hired to do a task just because he/she was available at the moment. "Casual laborer" carries the implication that the laborer does not belong to a union and that the employer and the laborer will not pay appropriate taxes on the wages paid.
 

casualty 
n. 1) an accident which could not have been foreseen or guarded against, such as a shipwreck caused by storm or fire caused by lightning. 2) the loss, as of life, from such an unavoidable accident. The courts remain inconsistent on the exact definition.
 

casualty loss 
n. in taxation, loss due to damage which qualifies for a casualty loss tax deduction. It must be caused by a sudden, unexpected or unusual occurrence such as a storm, flood, fire, shipwreck, earthquake or act of God, but would not include gradual damage from water seepage or erosion.
 

cause 
from Latin causa 1) v. to make something happen. 2) n. the reason something happens. A cause implies what is called a "causal connection" as distinguished from events which may occur but do not have any effect on later events. 3) n. short for cause of action.
 

cause of action 
n. the basis of a lawsuit founded on legal grounds and alleged facts which, if proved, would constitute all the "elements" required by statute. Examples: to have a cause of action for breach of contract there must have been an offer of acceptance; for a tort (civil wrong) there must have been negligence or intentional wrong-doing and failure to perform; for libel there must have been an untruth published which is particularly harmful; and in all cases there must be a connection between the acts of the defendant and damages. In many lawsuits there are several causes of action stated separately, such as fraud, breach of contract, and debt, or negligence and intentional destruction of property.

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caveat 
n. (kah-vee-ott) from Latin caveat for "let him beware." 1) a warning or caution. 2) a popular term used by lawyers to point out that there may be a hidden problem or defect. In effect, "I just want to warn you that…."
 

caveat emptor 
(kah-vee-ott emptor) Latin for "let the buyer beware." The basic premise that the buyer buys at his/her own risk and therefore should examine and test a product himself/herself for obvious defects and imperfections. Caveat emptor still applies even if the purchase is "as is" or when a defect is obvious upon reasonable inspection before purchase. Since implied warranties (assumed quality of goods) and consumer protections have come upon the legal landscape, the seller is held to a higher standard of disclosure than "buyer beware" and has responsibility for defects which could not be noted by casual inspection (particularly since modern devices cannot be tested except by use and many products are pre-packaged).
 

cease and desist order 
n. an order of a court or government agency to a person, business or organization to stop doing something upon a strong showing that the activity is harmful and/or contrary to law. The order may be permanent or hold until a final judicial determination of legality occurs. In many instances the activity is believed to cause irreparable damage such as receipt of funds illegally, felling of timber contrary to regulation, selling of shares of stock without a proper permit, or oil drilling which would damage the ecology.
 

certificate of deposit (cd) 
n. a document issued by a bank in return for a deposit of money which pays a fixed interest rate for a specified period (from a month to several years). Interest rates on CD's are usually higher than savings accounts because banking institutions require a commitment to leave money in the CD for a fixed period of time. Often there is a financial penalty (fee) for cashing in a CD before the pledged time runs out. 
 

certificate of incorporation 
n. document which is used to prove a corporation's existence upon the filing of articles of incorporation. 
 

certificate of title 
n. generally, the title document for a motor vehicle issued by the state in which it is registered, describing the vehicle by type and engine number, as well as the name and address of the registered owner and the lienholder (financial institution that loaned money to buy the car).
 

certified check 
n. a check issued by a bank which certifies that the maker of the check has enough money in his/her account to cover the amount to be paid. The bank sets aside the funds so that the check will remain good even if other checks are written on the particular account. Like a cashier's check, a certified check guarantees that it is immediately good since it is guaranteed by the bank and the recipient does not have to wait until it "clears."
 

certiorari 
n. (sersh-oh-rare-ee) a writ (order) of a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court's decision. 
 

cestui que trust 
n. (properly pronounced ses-tee kay, but lawyers popularly pronounce it setty kay) from old French. 1) an old-fashioned expression for the beneficiary of a trust. 2) "the one who trusts" or the person who will benefit from the trust and will receive payments or a future distribution from the trust's assets.
 

cestui que use 
(pronounced ses-tee kay use or setty kay use) n. an old-fashioned term for a person who benefits from assets held in a trust for the beneficiary's use. The term "beneficiary" is now used instead
 

chain of title 
n. the succession of title ownership to real property from the present owner back to the original owner at some distant time. Chains of title include notations of deeds, judgments of distribution from estates, certificates of death of a joint tenant, foreclosures, judgments of quiet title (lawsuit to prove one's right to property title) and other recorded transfers (conveyances) of title to real property. Usually title companies or abstractors are the professionals who search out the chain of title and provide a report so that a purchaser will be sure the title is clear of any claims.
 

chambers 
n. the private office of a judge, usually close to the courtroom so that the judge can enter the court from behind the bench and not encounter people on the way. Judges hear some motions, discuss formal legal problems like jury instructions, or conduct hearings on sensitive matters such as adoptions "in chambers."
 

champerty 
n. an agreement between the party suing in a lawsuit (plaintiff) and another person, usually an attorney, who agrees to finance and carry the lawsuit in return for a percentage of the recovery (money won and paid). In common law this was illegal on the theory that it encouraged lawsuits. 
 

chancellor 
n. from the old English legal system, a chancellor is a judge who sits in what is called a chancery (equity) court with the power to order something be done (as distinguished from just paying damages). 
 

chancery 
n. a court that can order acts performed. 
 

change of circumstances 
n. the principal reason for a court modifying (amending) an existing order for the payment of alimony and/or child support. The change may be an increase or decrease in the income of either the party obligated to pay or the ex-spouse receiving payment, or the health, the employment, or needs of either party. Thus, if an ex-husband's income is substantially increased or the ex-wife becomes ill and cannot work, the judge may order the ex-husband to pay her more. Remarriage of a spouse who is receiving alimony automatically terminates the alimony order, unless there is a special provision that it continue, which is rare
 

character witness 
n. a person who testifies in a trial on behalf of a person (usually a criminal defendant) as to that person's good ethical qualities and morality both by the personal knowledge of the witness and the person's reputation in the community. Such testimony is primarily relevant when the party's honesty or morality is an issue, particularly in most criminal cases and civil cases such as fraud.
 

charge 
n. 1) in a criminal case, the specific statement of what crime the party is accused (charged with) contained in the indictment or criminal complaint. 2) in jury trials, the oral instructions by the judge to the jurors just before the jury begins deliberations. This charge is based on jury instructions submitted by attorneys on both sides and agreed upon by the trial judge. 3) a fee for services.
 

charitable contribution 
n. in taxation, a contribution to an organization which is officially created for charitable, religious, educational, scientific, artistic, literary, or other good works. Such contributions are deductible from gross income, and thus lower the taxes paid.
 

charitable remainder trust (charitable remainder irrevocable unitrust) 
n. a form of trust in which the donor (trustor or settlor) places substantial funds or assets into an irrevocable trust (a trust in which the basic terms cannot be changed or the gift withdrawn) with an independent trustee, in which the assets are to go to charity on the death of the donor, but the donor (or specific beneficiaries) will receive regular profits from the trust during the donor's lifetime. The disadvantage is that the assets are permanently tied up or committed.
 

charity 
n. 1) in general the sentiment of benevolence, doing good works, assisting the less fortunate, philanthropy and contributing to the general public. 2) an organization which exists to help those in need or provide educational, scientific, religious and artistic assistance to members of the public. Charities are usually corporations established under state guidelines and require government approval in order for contributions to them to be deductible from gross income by donors.
 

charter 
n. the name for articles of incorporation as in a corporate charter. 

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chattel 
n. an item of personal property which is movable, as distinguished from real property (land and improvements).
 

chattel mortgage 
n. an outmoded written document which made a chattel (tangible personal asset) security for a loan of a certain amount. 
 

check 
n. a draft upon a particular account in a bank, in which the drawer or maker (the person who has the account and signs the check) directs the bank to pay a certain amount to the payee (which may include the drawer, "cash," or someone else). Other checks include cashier's checks issued by the bank for a sum paid to the bank, and certified checks in which the bank sets aside an amount from the maker's bank account and then guarantees the check can be cashed immediately.
 

chief justice 
n. the presiding judge of the Supreme Court. The Chief Justice of the Supreme Court is appointed by the President. 
 

child 
n. 1) a person's natural offspring. 
 

child custody 
n. a court's determination of which parent, relative or other adult should have physical and/or legal control and responsibility for a minor (child) under 18. Child custody can be decided by a local court in a divorce or if a child, relative, close friend or state agency questions whether one or both parents is unfit, absent, dead, in prison or dangerous to the child's well-being. In such cases custody can be awarded to a grandparent or other relative, a foster parent or an orphanage or other organization or institution. While a divorce is pending the court may grant temporary custody to one of the parents, require conferences or investigation (if the parents cannot agree, custody is automatically referred to a mediator, commissioner or social worker) before making a final ruling. There is a difference between physical custody, which designates where the child will actually live, and legal custody, which gives the custodial person(s) the right to make decisions for the child's welfare. If the parents agree, the court can award joint custody, physical and/or legal. Joint legal custody is becoming increasingly common. The basic consideration on custody matters is supposed to be the best interests of the child or children. In most cases the non-custodial parent is given visitation rights, which may include weekends, parts of vacations and other occasions. The court can always change custody if circumstances warrant.
 

child support 
n. court-ordered funds to be paid by one parent to the custodial parent of a minor child after divorce (dissolution) or separation. Usually the amounts are based on the income of both parents, the number of children, the expenses of the custodial parent, and any special needs of the child. It may also include health plan coverage, school tuition or other expenses, and may be reduced during periods of extended visitation such as summer vacations. Child support generally continues until the child reaches 18 years, graduates from high school, is emancipated (no longer lives with either parent), or, in some cases, for an extended period such as college attendance. The amount and continuation of support may be changed by the court upon application of either party depending on a proved change of circumstance of the parents or child. Child support should not be confused with alimony (spousal support) which is for the ex-spouse's support. Child support is not deductible from gross income for tax purposes (but may allow a dependent exemption) nor is it taxed as income, unlike alimony, which is deductible by the payer and taxed as the adult recipient's income.
 

churning 
n. the unethical and usually illegal practice of excessive buying and selling of shares of stock for a customer by a stockbroker or sales agent for the purpose of obtaining high sales commissions. 
 

circumstantial evidence 
n. evidence in a trial which is not directly from an eyewitness or participant and requires some reasoning to prove a fact. There is a public perception that such evidence is weak ("all they have is circumstantial evidence"), but the probable conclusion from the circumstances may be so strong that there can be little doubt as to a vital fact ("beyond a reasonable doubt" in a criminal case, and "a preponderance of the evidence" in a civil case). Particularly in criminal cases, "eyewitness" ("I saw Mary shoot John") type evidence is often lacking and may be unreliable, so circumstantial evidence becomes essential. Prior threats to the victim, fingerprints found at the scene of the crime, ownership of the murder weapon, and the accused being seen in the neighborhood, certainly point to the suspect as being the killer, but each bit of evidence is circumstantial.
 

citation 
n. 1) a notice to appear in court due to the probable commission of a minor crime such as a traffic violation, drinking liquor in a park where prohibited, etc. Failure to appear can result in a warrant for the citee's arrest. 2) a notice to appear in court in a civil matter in which the presence of a party appears necessary, usually required by statute, such as a person whose relatives wish to place him/her under a conservatorship (take over and manage his/her affairs). 3) the act of referring to (citing) a statute, precedent-setting case or legal textbook, in a brief (written legal court statement) or argument in court, called "citation of authority." 4) the section of the statute or the name of the case as well as the volume number, the report series and the page number of a case referred to in a brief, points and authorities, or other legal argument.
 

cite 
v. 1) to make reference to a decision in another case to make a legal point in argument. 2) to give notice of being charged with a minor crime and a date for appearance in court to answer the charge rather than being arrested (usually given by a police officer). 
 

citizen 
n. person who by place of birth, nationality of one or both parents, or by going through the naturalization process has sworn loyalty to a nation.
 

civil 
adj. 1) that part of the law that encompasses business, contracts, estates, domestic (family) relations, accidents, negligence and everything related to legal issues, statutes and lawsuits, that is not criminal law. In a few areas civil and criminal law may overlap or coincide. For example, a person may be liable under a civil lawsuit for negligently killing a pedestrian with his auto by running over the person and be charged with the crime of vehicular homicide due to his/her reckless driving. Assault may bring about arrest by the police under criminal law and a lawsuit by the party attacked under civil law. 2) referring to one's basic rights guaranteed under the Constitution (and the interpretations and statutes intended to implement the enforcement of those rights) such as voting, equitable taxation, freedom of speech, press, religion and assembly.
 

civil action 
n. any lawsuit relating to civil matters and not criminal prosecution. 
 

civil calendar 
n. the list of lawsuits (cases) that are approaching trial in any court. Attorneys and/or parties whose cases are coming to the top of the list receive notice of the "calling" of the civil calendar on a particular day for setting a trial date. Unfortunately, some courts are so clogged with pending lawsuits that one case may be called on several civil calendars, possibly months apart, before being finally sent to trial.
 

civil code 
n. the name for the collection of statutes and laws which deal with business and negligence lawsuits and practices. 
 

civil law 
n. 1) a body of laws and legal concepts which come down from old Roman laws established by Emperor Justinian, and which differ from English common law. 2) generic term for non-criminal law.
 

civil liability 
n. potential responsibility for payment of damages or other court-enforcement in a lawsuit, as distinguished from criminal liability, which means open to punishment for a crime.
 

civil liberties 
n. rights or freedoms given to the people by Common Law, or legislation, allowing the individual to be free to speak, think, assemble, organize, worship, or petition without government (or even private) interference or restraints. These liberties are protective in nature, while civil rights form a broader concept and include positive elements such as the right to use facilities, the right to an equal education, or the right to participate in government.
 

civil penalties 
n. fines or surcharges imposed by a governmental agency to enforce regulations such as late payment of taxes, failure to obtain a permit, etc.
 

civil procedure 
n. the complex and often confusing body of rules and regulations which establish the format under which civil lawsuits are filed, pursued and tried. Civil procedure refers only to form and procedure, and not to the substantive law which gives people the right to sue or defend a lawsuit.
 

civil rights 
n. those rights guaranteed by the Constitution, including the right to due process, equal treatment under the law of all people regarding enjoyment of life, liberty, property, and protection. Positive civil rights include the right to vote, the opportunity to enjoy the benefits of a democratic society, such as equal access to public schools, recreation, transportation, public facilities, and housing, and equal and fair treatment by law enforcement and the courts.
 

claim 
1) v. to make a demand for money, for property, or for enforcement of a right provided by law. 2) n. the making of a demand (asserting a claim) for money due, for property, from damages or for enforcement of a right. If such a demand is not honored, it may result in a lawsuit. In order to enforce a right against a government agency (ranging for damages from a negligent bus driver to a shortage in payroll) a claim must be filed first. If rejected or ignored by the government, it is lawsuit time.
 

claim against a governmental agency 
n. any time one believes he/she has a right to payment for damages from the government or on an unpaid contract with a government agency (including city, county, state, school district) the first step is to file a written claim. Usually the time to file a claim is relatively brief. If the claim is rejected or ignored and the claimant wants to try again, the claimant must file a lawsuit within a time period usually shorter than other types of lawsuits.
 

claim against an estate 
n. upon the death of a person and beginning of probate (filing of will, etc.), a person believing he/she is owed money should file a written claim (statement) promptly with the executor or administrator of the estate, who will then approve it, in whole or in part, or deny the claim. If the claim is not approved the claimant can demand a hearing to have the court determine his/her rights. The period for filing a claim begins upon publication of a death notice or a date specified by state law and continues for a few months (four in California, for example). If there is no probate the claim should be made to the heirs.
 

claim in bankruptcy 
n. the written claim filed by persons or businesses owed money (creditors) by a party who files for bankruptcy (debtor) to benefit from the distribution if money becomes available. The known creditors receive written notice of the bankruptcy and will receive a creditor's claim form. They may also receive notice that the bankrupt party has no assets to distribute and that they should not file a claim until further notice (this is bad news for the creditor). 
 

class 
n. in legal (not sociological) terms, all those persons in the same category, level of rights (e.g. heirs of dead person who are related by the same degree), or who have suffered from the same incident. Whether a person is part of a class is often crucial in determining who can sue on behalf of the people who have been similarly damaged or collect his/her share if a class action judgment is given.
 

class action 
n. a lawsuit filed by one or more people on behalf of themselves and a larger group of people "who are similarly situated." Examples might include: all women who have suffered from defective contraceptive devices, all those overcharged by a public utility during a particular period, or all those who were underpaid by an employer in violation of the Labor Act. If a class action is successful, a period of time is given for those who can prove they fit the class to file claims to participate in the judgment amount. Class actions are difficult and expensive to file and follow through, but the results can be helpful to people who could not afford to carry a suit alone. They can force businesses that have caused broad damage or have a "public be damned" attitude to change their practices and/or pay for damages. They often result in high fees for the winning attorneys, although often attorneys do not collect a fee at the beginning of a class action suit but might charge a contingent fee (such as one-third of the final judgment), which, occasionally, can be millions of dollars. Such fees usually require court approval.
 

clean hands doctrine 
n. a rule of law that a person coming to court with a lawsuit or petition for a court order must be free from unfair conduct (have "clean hands" or not have done anything wrong) in regard to the subject matter of his/her claim. His/her activities not involved in the legal action can be abominable because they are considered irrelevant. As an affirmative defense (positive response) a defendant might claim the plaintiff (party suing him/her) has a "lack of clean hands" or "violates the clean hands doctrine" because the plaintiff has misled the defendant or has done something wrong regarding the matter under consideration. Example: A former partner sues on a claim that he was owed money on a consulting contract with the partnership when he left, but the defense states that the plaintiff (party suing) has tried to get customers from the partnership by spreading untrue stories about the remaining partner's business practices.
 

clear and convincing evidence 
n. evidence that proves a matter by the "preponderance of evidence" required in civil cases and beyond the "reasonable doubt" needed to convict in a criminal case.
 

clear title 
n. holding ownership of real property without any claims by others on the owner's title and no history of past claims which might affect the ownership. 
 

clerk 
n. 1) an official or employee who handles the business of a court or a system of courts, maintains files of each case, and issues routine documents. Most courtrooms have a clerk to keep records and assist the judge in the management of the court. 2) a young lawyer who assists a judge or a senior attorney in research and drafting of documents, usually for a year or two, and benefits in at least two ways: learning from the judge or attorney and enjoying association with them. Law clerks for judges, particularly on the Courts of Appeal and the Supreme Court, are chosen from among the top students graduating from law school. 3) a person who works in an office or a store who performs physical work such as filing, stocking shelves, or counter sales.
 

close corporation 
n. a corporation which is permitted by law to operate more informally than most corporations (allowing decisions without meetings of the board of directors) and has only a limited number of shareholders. Usually a close corporation's shareholders are involved in the actual operation of the business and often are family members. 
 

closed shop 
n. a business that will hire only union members by choice or by agreement with the unions. 
 

closing 
n. the final step in the sale and purchase of real estate in which a deed of title, financing documents, title insurance policies, and remaining funds due are exchanged. Some of the final documents, including the deed and mortgage or deed of trust, are then delivered to the county recorder to be recorded. Depending on local practice, the closing is handled by a title company, escrow holder or attorney.
 

closing argument 
n. the final argument by an attorney on behalf of his/her client after all evidence has been produced for both sides. The lawyer for the plaintiff or prosecution (in a criminal case) makes the first closing argument, followed by counsel for the defendant, and then the plaintiff's attorney can respond to the defense argument. Unlike the "opening statement," which is limited to what is going to be proved, the "closing argument" may include opinions on the law, comment on the opposing party's evidence, and usually requests a judgment or verdict (jury's decision) favorable to the client.
 

cloud on title (cloud) 
n. an actual or apparent outstanding claim on the title to real property. "Clouds" can include an old mortgage or deed of trust with no recording showing the secured debt was paid off, a failure to properly transfer all interests in the real property (such as mineral rights) to a former owner, a previous deed which was improperly written or signed, an unresolved legal debt or levy by a creditor or a taxing authority, or some other doubtful link in the chain of title. Often the "cloud" can be removed by a quiet title action, by finding a person to create or execute a document to prove a debt had been paid or corrected. Title companies will refuse to insure title to be transferred with a "cloud," or they will insure ownership except for ("insure around") the "cloud."
 

co-trustee 
n. a trustee of a trust when there is more than one trustee serving at the same time, usually with the same powers and obligations. Occasionally a co-trustee may be a temporary fill-in, as when the original trustee is ill but recovers. The co-trustee must act in consultation with the other trustee(s), unless the language of the trust allows one co-trustee to act alone.
 

code 
n. a collection of written laws gathered together, usually covering specific subject matter. Despite their apparent permanence, codes are constantly being amended by legislative bodies. Some codes are administrative and have the force of law even though they were created and adopted by regulatory agencies and are not actually statutes or laws.
 

code of professional responsibility 
n. a set of rules governing the ethical conduct of attorneys in the practice of the law. It covers such topics as conflicts of interest, honesty with clients, confidentiality and conduct toward other attorneys and the courts.
 

codefendant 
n. when more than one person or entity is sued in one lawsuit, each party sued is called a codefendant.
 

codicil 
n. a written amendment to a person's will, which must be dated, signed and witnessed just as a will would be, and must make some reference to the will it amends. A codicil can add to, subtract from or modify the terms of the original will. When the person dies, both the original will and the codicil are submitted for approval by the court (probate) and form the basis for administration of the estate and distribution of the belongings of the writer.
 

codify 
v. to arrange and label a system of laws. 
 

cohabitation 
n. living together in the same residence, generally either as husband and wife or for an extended period of time as if the parties were married. Cohabitation implies that the parties are having sexual intercourse while living together, but the definition would not apply to a casual sexual encounter. Legal disputes have arisen as to whether cohabitation would refer to same sex partners, which is important to those involved since "cohabitation" is the basis of certain rights and privileges under various laws, regulations and contracts. The findings of the courts vary on this question, but the trend is to include long-standing homosexual relationships as cohabitation.
 

coinsurance 
n. an insurance policy in which the insurance company insures only a partial value of the property owned by the insured owner. Essentially the owner and the insurance company share the risk. 
 

collateral attack 
n. a legal action to challenge a ruling in another case. For example, Jose Mathew has been ordered to pay child support in a divorce case, but he then files another lawsuit trying to prove a claim that he is not the father of the child. A "direct attack" would have been to raise the issue of paternity in the divorce action.
 

collateral descendant 
n. a relative descended from a brother or sister of an ancestor, and thus a cousin, niece, nephew, aunt or uncle.
 

collateral estoppel 
n. the situation in which a judgment in one case prevents (estops) a party to that suit from trying to litigate the issue in another legal action. In effect, once decided, the parties are permanently bound by that ruling.
 

collusion 
n. where two persons (or business entities through their officers or other employees) enter into a deceitful agreement, usually secret, to defraud and/or gain an unfair advantage over a third party, competitors, consumers or those with whom they are negotiating. Collusion can include secret price or wage fixing, secret rebates, or pretending to be independent of each other when actually conspiring together for their joint ends. It can range from small-town shopkeepers or heirs to a grandma's estate, to gigantic electronics companies.
 

collusive action 
n. a lawsuit brought by parties pretending to be adversaries in order to obtain by subterfuge an advisory opinion or precedent-setting decision from the court. If a judge determines the action does not involve a true controversy he/she will dismiss it. 
 

color of law 
n. the appearance of an act being performed based upon legal right or enforcement of statute, when in reality no such right exists. An outstanding example is found in the civil rights acts which penalize law enforcement officers for violating civil rights by making arrests "under color of law" of peaceful protesters or to disrupt voter registration. It could apply to phony traffic arrests in order to raise revenue from fines or extort payoffs to forget the ticket.
 

color of title 
n. the appearance of having title to personal or real property by some evidence, but in reality there is either no title or a vital defect in the title. One might show a title document to real property, but in reality he/she may have deeded the property to another; a patent to an invention may have passed to the inventor's widow, who sells the rights to one party and then, using the original patent documents, sells the patent to a second party based on this "color of title."
 

comaker 
n. when two or more people sign a check or a promissory note, each is a comaker, and each is liable for the entire amount to be paid.
 

comity 
n. when one court defers to the jurisdiction of another in a case in which both would have the right to handle the case. 
 

commencement of action 
n. an action (a lawsuit) commences (begins officially) when the party suing files a written complaint or petition with the clerk of the court. 
 

comment 
n. a statement made by a judge or an attorney during a trial which is based on an alleged fact, but not a proven fact. If a comment is made in the presence of the jury, the jurors should be reminded it is not evidence and should not be considered. But how can a juror forget? The old adage: "a bell once rung, cannot be unrung," applies.
 

commercial frustration 
n. an unforeseen uncontrollable event which occurs after a written or oral contract is entered into between parties, and makes it impossible for one of the parties to fulfill his/her duties under the contract. This circumstance allows the frustrated party to rescind the contract without penalty. Such frustration (called frustration of purpose) could include the destruction by fire of the goods to be purchased, the denial of a permit to construct a building by a potential buyer, or denial of an application for a zoning variance to allow expansion by a contractor.
 

commercial law 
n. all the law which applies to the rights, relations and conduct of persons and businesses engaged in commerce, merchandising, trade and sales.
 

commingling 
n. the act of mixing the funds belonging to one party with those of another party, or, most importantly with funds held in trust for another. Spouses or business partners may commingle without a problem, except that a spouse may thus risk turning separate property into community property (transmutation), and a business partner may have to account to the other. However, trustees, guardians or lawyers holding client funds must be careful not to commingle those funds with their own, since commingling is generally prohibited as a conflict of interest. Use of commingled funds for an investment, even though it might benefit both the trustee and the beneficiary, is still improper. Inadvertent commingling or temporary commingling (say, upon receipt of a settlement check in which both the client and attorney have an interest) requires prompt separation of funds and accounting to the client or beneficiary. To avoid commingling, trustees, lawyers, guardians and those responsible for another's funds set up trust accounts for funds of another.
 

commission 
n. 1) a fee paid based on a percentage of the sale made by an employee or agent, as distinguished from regular payments of wages or salary. 2) a group appointed pursuant to law to conduct certain government business, especially regulation.
 

commitment 
n. a judge's order sending someone to jail or prison, upon conviction or before trial, or directing that a mentally unstable person be confined to a mental institution. Technically the judge orders law enforcement personnel to take the prisoner or patient to such places.
 

common area 
n. in condominium and some cooperative housing projects, the areas not owned by an individual owner of the condominium or cooperative residence, but shared by all owners, either by percentage interest or owned by the management organization. Common areas may include recreation facilities, outdoor space, parking, landscaping, fences, laundry rooms and all other jointly used space. Management is by a homeowners' association or cooperative board, which collects assessments from the owners and pays for upkeep, some insurance, maintenance and reserves for replacement of improvements in the common area. This can also refer to the area in a shopping center or mall outside of the individual stores, for which each business pays a share of maintenance based on percentage of total store space occupied.
 

common carrier 
n. an individual, a company or a public utility (like municipal buses) which is in the regular business of transporting people and/or freight. This is distinguished from a private carrier, which only transports occasionally or as a one-time-only event.
 

common counts 
n. claims for debt alleged in a lawsuit (included in the complaint) which are general and alleged together so that the defendant cannot squirm out of liability on some technicality on one of the counts. Common counts may include claims of debt for goods sold and delivered, for work performed, for money loaned or advanced, for money paid requiring repayment, for money received on behalf of the plaintiff, or for money due on an account stated or on an open book account.
 

common law 
n. the traditional unwritten law of England, based on custom and usage. The best of the pre-Saxon compendiums of the common law was reportedly written by a woman, Queen Martia, wife of a king of a small English kingdom. Together with a book on the "law of the monarchy" by a Duke of Cornwall, Queen Martia's work was translated into the emerging English language by King Alfred (849-899 A.D.). When William the Conqueror invaded England in 1066, he combined the best of this Anglo-Saxon law with Norman law, which resulted in the English common law, much of which was by custom and precedent rather than by written code. By the 14th century legal decisions and commentaries on the common law began providing precedents for the courts and lawyers to follow. It did not include the so-called law of equity (chancery), which came from the royal power to order or prohibit specific acts.
 

common property 
n. 1) real property owned by "tenants in common," who each have an "undivided interest" in the entire property. 2) property managed by a homeowners' association in a condominium project or a subdivision development, which all owners may use and each owns a percentage interest in. 3) lands owned by the government for public (common) use, like parks and national forests.
 

common stock 
n. stock in a corporation in which dividends (payouts) are calculated upon a percentage of net profits, with distribution determined by the board of directors. Usually holders of common stock have voting rights. These are distinguished from preferred stock in which the profits are a predetermined percentage and are paid before the common shareholders who gamble on higher profits, and collectively have voting control of the corporation
 

common-law marriage 
n. an agreement between a man and woman to live together as husband and wife without any legal formalities, followed and/or preceded by cohabitation on a regular basis.
 

community property 
n. property and profits received by a husband and wife during the marriage, with the exception of inheritances, specific gifts to one of the spouses, and property and profits clearly traceable to property owned before marriage, all of which is separate property. Community property is a concept which began in Spain to protect rich women from losing everything to profligate husbands. Community property recognizes the equal contribution of both parties to the marriage even though one or the other may earn more income through employment. By agreement or action the married couple can turn (transmute) separate property into community property, including by commingling community and separate funds in one account. Community property is recognized based on fact or agreement of the parties, rather than holding of title. Upon divorce community property is divided equally without regard to fault.
 

commutation 
n. the act of reducing a criminal sentence resulting from a criminal conviction by the executive clemency of the Governor of the state, or President. This is not the same as a pardon, which wipes out the conviction or the actual or potential charge A pardon implies either that the conviction was wrong, that there has been complete rehabilitation of the party, or that he/she has lived an exemplary life for many years and deserves to have his/her name cleared in old age. Commutation implies the penalty was excessive or there has been rehabilitation, reform or other circumstances such as good conduct or community service. Commutation is sometimes used when there is evidence that the defendant was not guilty, but it would prove embarrassing to admit an outright error by the courts.
 

commute a sentence 
See: commutation 
 

company 
n. any formal business entity for profit, which may be a corporation, a partnership, association or individual proprietorship. Often people think the term "company" means the business is incorporated, but that is not true. In fact, a corporation usually must use some term in its name such as "corporation," "incorporated," "corp." or "inc." to show it is a corporation.
 

comparative negligence 
n. a rule of law applied in accident cases to determine responsibility and damages based on the negligence of every party directly involved in the accident. 
 

compensation 
n. 1) payment for work performed, by salary, wages, commission or otherwise. It can include giving goods rather than money. 2) the amount received to "make one whole" (or at least better) after an injury or loss, particularly that paid by an insurance company either of the party causing the damage or by one's own insurer.
 

compensatory damages 
n. damages recovered in payment for actual injury or economic loss, which does not include punitive damages (as added damages due to malicious or grossly negligent action).
 

competent 
adj. 1) in general, able to act in the circumstances, including the ability to perform a job or occupation, or to reason or make decisions. 2) in wills, trusts and contracts, sufficiently mentally able to understand and execute a document. To be competent to make a will a person must understand what a will is, what he/she owns (although forgetting a few items among many does not show incompetency), and who are relatives who would normally inherit such as children and spouse (although forgetting a child in a will is not automatic proof of lack of competency, since it may be intentional or the child has been long gone). 3) in criminal law, sufficiently mentally able to stand trial, if he/she understands the proceedings and can rationally deal with his/her lawyer. This is often broadly interpreted by psychiatrists whose testimony may persuade a court that a party is too psychotic to be tried. If the court finds incompetency then the defendant may be sent to a mental facility until such time as he/she regains sanity. At that time a trial may be held, but this is rare. 4) in evidence, "competent" means "relevant" and/or "material." Lawyers often make the objection to evidence: "incompetent, irrelevant and immaterial" to cover all bases.
 

complainant 
n. a person or entity who begins a lawsuit by filing a complaint and is usually called the plaintiff, or in some cases the petitioner.
 

complaint 
n. the first document filed with the court by a person or entity claiming legal rights against another. The party filing the complaint is usually called the plaintiff and the party against whom the complaint is filed is called the defendant or defendants. Complaints are pleadings and must be drafted carefully (usually by an attorney) to properly state the factual as well as legal basis for the claim. When the complaint is filed, the court clerk will issue a summons, which gives the name and file number of the lawsuit and the address of the attorney filing the complaint, and instructs the defendant that he/she/it has a specific time to file an answer or other response. A copy of the complaint and the summons must be served on a defendant before a response is required.
 

compos mentis 
n. (com-pose-men-tis) Latin for "having a sound mind."
 

compound interest 
n. payment of interest upon principal and previously accumulated interest, which increases the amount paid for money use above simple interest. Thus, it can increase more rapidly if compounded daily, monthly or quarterly. The genius physicist Albert Einstein called compound interest man's "greatest invention." Most lenders agree.
 

compound question 
n. the combination of more than one question into what seems to be a single question asked of a witness during a trial or deposition. A compound question can be objected to by opposing counsel since it is confusing to the witness, who is entitled to answer each question separately. If the objection is sustained the question must be withdrawn and asked in a series of separate questions.
 

compounding a felony 
n. when a person injured by a felony (being shot, having one's business trashed, being robbed) reaches an agreement with the one causing the harm that the injured party (victim) will not prosecute (complain to law authorities or testify) the apparent felon in return for money payment, reparations, return of stolen goods or other recompense. 
 

compromise 
1) n. an agreement between opposing parties to settle a dispute or reach a settlement in which each gives some ground, rather than continue the dispute or go to trial. Judges encourage compromise and settlement, which is often economically sensible, since it avoids mounting attorneys' fees and costs. 2) v. to reach a settlement in which each party gives up some demands.
 

compromise verdict 
n. a decision made by a jury in which the jurors split the difference between the high amount of damages which one group of jurors feel is justified and the low amount other jurors favor. Since this is a "chance" verdict not computed on a careful determination of the damages, it may do an injustice to one party or the other, and is thus misconduct, which can result in an appeals court overturning the verdict.

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concealed weapon 
n. a weapon, particularly a handgun, which is kept hidden on one's person, or under one's control (in a glove compartment or under a car seat).
 

concealment 
n. fraudulent failure to reveal information which someone knows and is aware that in good faith he/she should communicate to another. Examples include failure to disclose defects in goods sold (the horse has been sick, the car has been in an accident), leaving out significant liabilities in a credit application, or omitting assets from a bankruptcy schedule to keep them from being available for distribution to creditors. Such concealment at minimum can be a cause for rescission (cancellation) of a contract by the misled party or basis for a civil lawsuit for fraud.
 

conclusion 
n. 1) in general, the end. 2) in a trial, when all evidence has been introduced and final arguments made, so nothing more can be presented, even if a lawyer thinks of something new or forgotten. 3) in a trial or court hearing, a final determination of the facts by the trier of fact (jury or judge) and/or a judge's decision on the law.
 

conclusion of fact 
n. in a trial, the final result of an analysis of the facts presented in evidence, made by the trier of fact. When a judge is the trier of fact he/she will present orally in open court or in a written judgment his/her findings of fact to support his/her decision. In most cases either party is entitled to written conclusion of facts if requested.
 

conclusion of law 
n. a judge's final decision on a question of law which has been raised in a trial or a court hearing, particularly those issues which are vital to reaching a statement. These may be presented orally by the judge in open court, but are often contained in a written judgment in support of his/her judgment such as an award of damages or denial of a petition. In most cases either party is entitled to written conclusions of law if requested.
 

concurrent sentences 
n. sentences for more than one crime which are to be served at one time. When a criminal defendant is convicted of two or more crimes, a judge sentences him/her to a certain period of time for each crime. Then out of compassion, leniency, plea bargaining or the fact that the several crimes are interrelated, the judge will rule that the sentences may all be served at the same time, with the longest period controlling.
 

condemn 
v. 1) for a public agency to determine that a building is unsafe or unfit for habitation and must be torn down or rebuilt to meet building and health code requirements. 2) for a governmental agency to take private property for public use under the right of eminent domain, but constitutionally the property owner must receive just compensation. If an agreement cannot be reached then the owner is entitled to a court determination of value in a condemnation action (lawsuit), but the public body can take the property immediately upon deposit of the estimated value. 3) to sentence a convicted defendant to death. 4) send to prison.
 

condemnation 
n. the legal process by which a governmental body exercises its right of "eminent domain" to acquire private property for public uses (highways, schools, redevelopment, etc.). Condemnation includes a resolution of public need, an offer to purchase, and, if a negotiated purchase is not possible, then a condemnation suit. The government may take the property at the time of suit if it deposits money with the court in the amount of the government's appraisal.
 

condemnation action 
n. a lawsuit brought by a public agency to acquire private property for public purposes (schools, highways, parks, hospitals, redevelopment, civic buildings, for example), and a determination of the value to be paid. While the government has the right to acquire the private property (eminent domain), the owner is entitled under the Constitution to receive just compensation to be determined by a court.
 

condition 
n. a term or requirement stated in a contract, which must be met for the other party to have the duty to fulfill his/her obligations.
 

condition precedent 
n. 1) in a contract, an event which must take place before a party to a contract must perform or do their part. 2) in a deed to real property, an event which has to occur before the title (or other right) to the property will actually be in the name of the party receiving title. Examples: if the ship makes it to port, the buyer agrees to pay for the freight on the ship and unload it.
 

condition subsequent 
n. 1) in a contract, a happening which terminates the duty of a party to perform or do his/her part. 2) in a deed to real property, an event which terminates a person's interest in the property.
 

conditional bequest 
n. in a will, a gift which will take place only if a particular event has occurred by the time the maker of the will dies.
 

conditional sale 
n. a sale of property or goods which will be completed if certain conditions are met (as agreed) by one or both parties to the transaction. 
 

condominium 
n. title to a unit of real property which, in reality, is the airspace which an apartment, office or store occupies. An increasingly common form of property title in a multi-unit project, condominiums actually date back to ancient Rome, hence the Latin name. The owner of the condominium also owns a common tenancy with owners of other units in the common area, which includes all the driveways, parking, elevators, outside hallways, recreation and landscaped areas, which are managed by a homeowners' or tenant's association. If the condominium unit is destroyed by fire or other disaster, the owner has the right to rebuild in his/her airspace.
 

condone 
v. 1) to forgive, support, and/or overlook moral or legal failures of another without protest, with the result that it appears that such breaches of moral or legal duties are acceptable. An employer may overlook an employee overcharging customers or a police officer may look the other way when a party uses violent self-help to solve a problem. 2) to forgive the marital infidelity of one's spouse and resume marital sexual relations on the condition that the sin is not repeated.
 

confess 
v. in criminal law, to voluntarily state that one is guilty of a criminal offense. This admission may be made to a law enforcement officer or in court either prior to or upon arrest, or after the person is charged with a specific crime. A confession must be truly voluntary (not forced by threat, torture, or trickery).
 

confession 
n. the statement of one charged with a crime that he/she committed the crime. Such an admission is generally put in writing (by the confessor, law enforcement officers or their stenographer) and then read and signed by the defendant. If the defendant cannot read English, he/she has the right to have his/her confession read aloud or translated. It can be used against the defendant in trial (and his/her codefendants) if it is truly voluntary.
 

confession and avoidance 
n. when a defendant admits the allegations in a complaint against him/her in a lawsuit or accusations in a criminal case but alleges other facts (affirmative defenses) to show that the original allegations do not prove a case against him/her. Often this means the defendant confesses to the accuracy of the stated facts and tries to avoid their legal impact. 
 

confession of judgment 
n. a written agreement in which the defendant in a lawsuit admits liability and accepts the amount of agreed-upon damages he/she must pay to plaintiff (person suing him/her), and agrees that the statement may be filed as a court judgment against him/her if he/she does not pay or perform as agreed. This avoids further legal proceedings and may prevent a legal judgment being entered (filed) if the terms are fulfilled by the defendant.
 

confidence game 
n. the obtaining of money from others through trick or swindle, generally by gaining the victim's trust and confidence
 

confidential communication 
n. certain written communications which can be kept confidential and need not be disclosed in court as evidence, answered by a witness either in depositions or trial, or provided to the parties to a lawsuit or their attorneys. This is based on the inherent private relationship between the person communicating and the confidant's occupation or relationship to him/her. They include communications between husband and wife, lawyer and client, physician or other medical person (most therapists) and patient, minister or priest and parishioner (or anyone seeking spiritual help), and journalist. Moral conflicts may arise when a murderer or child molester confesses to his/her priest, who is pledged to silence and confidentiality by his priestly vows and cannot reveal the confession in legal cases.
 

confidential relation 
n. a relationship in which one person has confidence in and relies on another because of some combination of a history of trust, older age, family connection and/or superior training and knowledge, to a point where the party relied upon dominates the situation, for good or bad. While it may include attorney and client, stockbroker and customer, real estate agent and buyer, a senior family member and an unsophisticated relative, the relationship is defined on a case-by-case basis, with reliance and dominance the key factors. In this situation, the trusting party does not have to be as vigilant or suspicious as with strangers or people who are not relied upon. The time clock (statute of limitations) to bring a lawsuit against a crook who is in a confidential relationship may not start to run until the misdeeds become extremely obvious.
 

confiscate 
v. to take one's goods or property without legal right, although there may appear to be some lawful basis. In the case of a government seizing property, it may include taking without the just compensation as guaranteed by the Constitution. There are some acts of legal confiscation, such as taking an automobile used in illegal drug traffic.
 

conflict of interest 
n. a situation in which a person has a duty to more than one person or organization, but cannot do justice to the actual or potentially adverse interests of both parties. This includes when an individual's personal interests or concerns are inconsistent with the best for a customer, or when a public official's personal interests are contrary to his/her loyalty to public business. An attorney, an accountant, a business adviser or realtor cannot represent two parties in a dispute and must avoid even the appearance of conflict. He/she may not join with a client in business without making full disclosure of his/her potential conflicts, he/she must avoid commingling funds with the client, and never, never take a position adverse to the customer
 

confrontation 
n. 1) fight or argument. 2) the right of a criminal defendant "to be confronted with the witnesses against him". Confrontation includes the right to object to the witness against him/her (sometimes depending on whether the witness can identify the defendant) and to cross-examine that witness.
 

confusingly similar 
adj. in the law of trademarks, when a trademark, logo or business name is so close to that of a pre-existing trademark, logo or name that the public might misidentify the new one with the old trademark, logo or name. Such confusion may not be found if the products or businesses are clearly not in the actual or potential product markets or geographic area of the other.
 

conjugal rights 
n. a spouse's so-called "rights" to the comforts and companionship from his/her mate, meaning sexual relations.
 

conscientious objector 
n. a person who refuses to serve in the military due to religious or strong philosophical views against war or killing. 
 

conscious parallelism 
n. an undiscussed imitation by a business of a competitor's action, such as changing prices up or down without the active conspiracy between business rivals, which would make this coincidental activity a violation of anti-trust laws.
 

consent 
1) n. a voluntary agreement to another's proposition. 2) v. to voluntarily agree to an act or proposal of another, which may range from contracts to sexual relations
 

consent decree 
n. an order of a judge based upon an agreement, almost always put in writing, between the parties to a lawsuit instead of continuing the case through trial or hearing. It cannot be appealed unless it was based upon fraud by one of the parties (he lied about the situation), mutual mistake (both parties misunderstood the situation) or if the court does not have jurisdiction over the case or the parties. Obviously, such a decree is almost always final and non-appealable since the parties worked it out. A consent decree is a common practice when the government has sued to make a person or corporation comply with the law (improper securities practices, pollution, restraints of trade, conspiracy) or the defendant agrees to the consent decree (often not to repeat the offense) in return for the government not pursuing criminal penalties. In general a consent decree and a consent judgment are the same.
 

consent judgment 
n. a judgment issued by a judge based on an agreement between the parties to a lawsuit to settle the matter, aimed at ending the litigation with a judgment that is enforceable.
 

consequential damages 
n. damages claimed and/or awarded in a lawsuit which were caused as a direct foreseeable result of wrongdoing. 
 

conservatee 
n. a person whom a court has determined because of physical or mental limitations or just plain old age requires a conservator to handle his/her financial affairs, and/or his/her actual personal activities such as arranging a residence, health care and the like.
 

conservator 
n. a guardian and protector appointed by a judge to protect and manage the financial affairs and/or the person's daily life due to physical or mental limitations or old age. The conservator may be only of the "estate" (meaning financial affairs), but may be also of the "person," when he/she takes charge of overseeing the daily activities, such as health care or living arrangements of the conservatee. The process is that a relative or friend petitions the appropriate local court for appointment of a specific conservator, with written notice served on the potential conservatee. The object of this concern is interviewed by a court-appointed investigator to determine need, desire and understanding of the potential conservatee as well as the suitability of the proposed conservator. An open hearing is held before the appointment is made. The conservator is required to make regular accountings which must be approved by the court. The conservator may be removed by order of the court if no longer needed, upon the petition of the conservatee or relatives, or for failure to perform his/her duties.
 

consideration 
n. 1) payment or money. 2) a vital element in the law of contracts, consideration is a benefit which must be bargained for between the parties, and is the essential reason for a party entering into a contract. Consideration must be of value (at least to the parties), and is exchanged for the performance or promise of performance by the other party (such performance itself is consideration). In a contract, one consideration (thing given) is exchanged for another consideration. Not doing an act (forbearance) can be consideration, such as "I will pay you Rs. 10,000 not to build a road next to my fence." Sometimes consideration is "nominal," meaning it is stated for form only, such as "Rs 500 as consideration for conveyance of title," which is used to hide the true amount being paid. Contracts may become unenforceable or rescindable (undone by rescission) for "failure of consideration" when the intended consideration is found to be worth less than expected, is damaged or destroyed, or performance is not made properly. Acts which are illegal or so immoral that they are against established public policy cannot serve as consideration for enforceable contracts.
 

consign 
v. 1) to deliver goods to a merchant to sell on behalf of the party delivering the items, as distinguished from transferring to a retailer at a wholesale price for re-sale. 2) to deliver to a carrier to be taken to an agent of the sender. 3) when a debtor has belongings but no money to pay his/her creditors and deposits his/her goods with a trustee who will sell them to raise money to pay the owner's debts and creditors. This is done by agreement between a debtor and his/her creditors or by order of a judge.
 

consignee 
n. a person or business holding another's goods for sale or for delivery to a designated agent. 
 

consignment 
n. the act of consigning goods to one who will sell them for the owner or transport them for the owner. 
 

consortium 
n. 1) a group of separate businesses or business people joining together and cooperating to complete a project, work together to perform a contract or conduct an on-going business. 2) the marital relationship, particularly sexual intimacies, between husband and wife. Consortium arises in a lawsuit as a claim of "loss of consortium." Often it means that due to one spouse's injuries or emotional distress he/she cannot have sexual relations for a period of time or permanently, which is a loss to the mate for which he/she should be awarded damages. How loss of consortium is valued in money terms is a difficult question.
 

conspiracy 
n. when people work together by agreement to commit an illegal act. A conspiracy may exist when the parties use legal means to accomplish an illegal result, or to use illegal means to achieve something that in itself is lawful. To prove a conspiracy those involved must have agreed to the plan before all the actions have been taken, or it is just a series of independent illegal acts. A conspiracy can be criminal for planning and carrying out illegal activities, or give rise to a civil lawsuit for damages by someone injured by the conspiracy. Thus, a scheme by a group of salesmen to sell used automobiles as new, could be prosecuted as a crime of fraud and conspiracy, and also allow a purchaser of an auto to sue for damages for the fraud and conspiracy.
 

conspirator 
n. a person or entity who enters into a plot with one or more other people or entities to commit illegal acts, legal acts with an illegal object, or using illegal methods, to the harm of others.
 

constitutional rights 
n. rights given or reserved to the people by the Constitution. 
 

construction 
n. the act of a lawyer or court in interpreting and giving meaning to a statute or the language of a document such as a contract or will when there is some ambiguity or question about its meaning. In constitutional law, there is a distinction between liberal construction (broad construction) and strict construction (narrow construction). Liberal construction adds modern and societal meanings to the language, while strict construction adheres closely to the original language and intent without interpretation.
 

constructive 
adj. a legal fiction for treating a situation as if it were actually so. Some examples help to clarify this term: although George does not have the jewelry in his possession, he has the key to the safe deposit box and the right to enter so he has "constructive possession".
 

constructive eviction 
n. when the landlord does not go through a legal eviction of a tenant but takes steps which keep the tenant from continuing to live in the premises. This could include changing the locks, turning off the drinking water, blocking the driveway, yelling at the tenant all the time or nailing the door shut.
 

constructive fraud 
n. when the circumstances show that someone's actions give him/her an unfair advantage over another by unfair means (lying or not telling a buyer about defects in a product, for example), the court may decide from the methods used and the result that it should treat the situation as if there was actual fraud even if all the technical elements of fraud have not been proven.
 

constructive notice 
n. a fiction that a person got notice even though actual notice was not personally delivered to him/her. The law may provide that a public notice put on the courthouse bulletin board is a substitute for actual notice. 
 

constructive possession 
n. when a person does not have actual possession, but has the power to control an asset, he/she has constructive possession. Having the key to a safe deposit box, for example, gives one constructive possession.
 

constructive trust 
n. when a person has title to property and/or takes possession of it under circumstances in which he/she is holding it for another, even though there is no formal trust document or agreement. The court may determine that the holder of the title holds it as constructive trustee for the benefit of the intended owner. This may occur through fraud, breach of faith, ignorance or inadvertence.
 

construe 
v. to determine the meaning of the words of a written document, statute or legal decision, based upon rules of legal interpretation as well as normal, widely accepted meanings.
 

consumer protection laws 
n.laws set up to protect the consumer (the retail purchasers of goods and services) from inferior, adulterated, hazardous or deceptively advertised products, and deceptive or fraudulent sales practices. Eg. wholesome poultry and meat, misbranding and adulteration of food and cosmetics, truth in lending, false advertising, the soundness of banks, securities sales, standards of housing materials, flammable fabrics, and various business practices.
 

contemplation of death 
n. the anticipation of death in a relatively short time due to age, illness, injury or great danger, which causes a person to make a gift, transfer property or take some other dramatic action. 
 

contempt of court 
n. there are essentially two types of contempt: a) being rude, disrespectful to the judge or other attorneys or causing a disturbance in the courtroom, particularly after being warned by the judge; b) willful failure to obey an order of the court. This latter can include failure to pay child support or alimony. The court's power to punish for contempt (called "citing" one for contempt) includes fines and/or jail time (called "imposing sanctions"). Incarceration is generally just a threat and if imposed, usually brief. Since the judge has discretion to control the courtroom, contempt citations are generally not appealable unless the amount of fine or jail time is excessive. "Criminal contempt" involves contempt with the aim of obstruction of justice, such as threatening a judge or witness or disobeying an order to produce evidence.
 

contiguous 
adj. connected or "next to", usually meaning adjoining pieces of real estate.
 

contingency 
n. an event that might not occur. 
 

contingent 
adj. possible, but not certain.
 

contingent beneficiary 
n. a person or entity named to receive a gift under the terms of a will, trust or insurance policy, who will only receive that gift if a certain event occurs or a certain set of circumstances happen.
 

contingent fee 
n. a fee to a lawyer which will be due and payable only if there is a successful conclusion of the legal work, usually winning or settling a lawsuit in favor of the client (particularly in negligence cases), or collecting funds due with or without filing a lawsuit. The fee is generally a percentage of the recovery (money won), but may be partly a fee for time worked and partly a percentage. 
 

contingent interest 
n. an interest in real property which, according to the deed (or a will or trust), a party will receive only if a certain event occurs or certain circumstances happen. Examples: surviving a person who had a life estate (the right to use the property for his/her life), or having children at the time such a life estate ends.
 

contingent remainder 
n. an interest, particularly in real estate property, which will go to a person or entity only upon a certain set of circumstances existing at the time the title-holder dies. Examples of those potential circumstances include surviving one's brother or still operating the family farm next door.
 

continuance 
n. a postponement of a date of a trial, hearing or other court appearance to a later fixed date by order of the court, or upon a stipulation (legal agreement) by the attorneys and approved by the court or by the clerk of the court.
 

continuing objection 
n. an objection to certain questions or testimony during a trial which has been "overruled" by the judge, but the attorney who made the objection announces he/she is "continuing" the objection to all other questions on the same topic or with the same legal impropriety in the opinion of the attorney. Thus a "continuing" objection does not require an objection every time the same question or same subject is introduced. Example: the attorney for the plaintiff (the person suing) begins asking questions about emotional distress, which the defendant's attorney objects to as "immaterial," but the judge allows the first questions. The defense attorney states he has a "continuing" objection to all questions about the emotional distress.
 

continuing trespass 
n. the repeated unauthorized use of another's real property, as compared to an occasional illegal entry.
 

contra 
adj. Latin for "against" or "opposite to".
 

contract 
1) n. an agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration. Since the law of contracts is at the heart of most business dealings, it is one of the three or four most significant areas of legal concern and can involve variations on circumstances and complexities. The existence of a contract requires finding the following factual elements: a) an offer; b) an acceptance of that offer which results in a meeting of the minds; c) a promise to perform; d) a valuable consideration (which can be a promise or payment in some form); e) a time or event when performance must be made (meet commitments); f) terms and conditions for performance, including fulfilling promises; g) performance, if the contract is "unilateral". A unilateral contract is one in which there is a promise to pay or give other consideration in return for actual performance. A bilateral contract is one in which a promise is exchanged for a promise. Contracts can be either written or oral, but oral contracts are more difficult to prove. In some cases a contract can consist of several documents, such as a series of letters, orders, offers and counteroffers. There are a variety of types of contracts: "conditional" on an event occurring; "joint and several," in which several parties make a joint promise to perform, but each is responsible; "implied," in which the courts will determine there is a contract based on the circumstances. Parties can contract to supply all of another's requirements, buy all the products made, or enter into an option to renew a contract. The variations are almost limitless. Contracts for illegal purposes are not enforceable at law. 2) v. to enter into an agreement.
 

contract of adhesion 
n. See also: adhesion contract 
 

contractor 
n. 1) a person or entity that enters into a contract. 2) commonly, a person or entity that agrees to construct a building or to provide or install specialized portions of the construction. The party responsible for the overall job is a "general contractor," and those he/she/it hires to construct or install certain parts (electrical, plumbing, roofing, tile-laying, etc.) are "subcontractors," who are responsible to the general contractor and not to the property owner. An owner must be sure that the subcontractors are paid by the general contractor by demanding and receiving proof of payment, or the subcontractor will be entitled to payment from the owner based on a mechanic's lien against the property. 3) a person who performs services but is not an employee, often called an "independent contractor."
 

contribution 
n. 1) donation to a charity or political campaign. 2) the sharing of a loss by each of several persons who may have been jointly responsible for injury to a third party, who entered into a business which lost money or who owe a debt jointly. Quite often this arises when one responsible party pays more than his share and then demands contribution from the others in proportion to their share of the obligation.
 

contributory negligence 
n. a doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence "contributed" to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident. Under this rule, a badly injured person who was only slightly negligent could not win in court against a very negligent defendant.
 

control 
1) n. the power to direct, manage, oversee and/or restrict the affairs, business or assets of a person or entity. 2) v. to exercise the power of control.