law that the existence of a contract is determined by the legal significance of the external acts of the parties to a purported agreement, rather than by the actual intent of the parties
Trang 1Nuncupative will: An oral will, sometimes known as a “deathbed will”; the spoken expression of
a person’s wishes regarding his or her PERSONAL PROPERTY or estate, made when death is
imminent Nuncupative wills are invalid in most states, and the states that allow them place
limits on the amounts that can be transferred as well as various requirements for transcribing
them and proving their authenticity and validity
Oath: An individual’s appeal to God or a sacred person or thing to witness the truth of what he or
she is saying or a pledge to do something enforced by the individual’s responsibility to answer
to God or the sacred person or thing
Obiter dictum: [Latin, By the way.] Words of an opinion entirely unnecessary for the decision of
the case A remark made or opinion expressed by a judge in a decision upon a cause,“by the
way,” that is, incidentally or collaterally, and not directly upon the question before the court or
upon a point not necessarily involved in the determination of the cause, or introduced by way
of illustration, or analogy or argument Such are not binding as precedent
Object: As a verb, to take exception to something; to declare or express the belief that something
is improper or illegal
As a noun, the thing sought to be accomplished or attained; aim; purpose; intention
Objection: A formal attestation or declaration of disapproval concerning a specific point of law
or procedure during the course of a trial; a statement indicating disagreement with a judge’s
ruling
Objective theory of contract: A principle in U.S law that the existence of a contract is
determined by the legal significance of the external acts of the parties to a purported
agreement, rather than by the actual intent of the parties
Obligation: A generic term for any type of legal duty or liability
Obligee: The individual to whom a particular duty or obligation is owed
Obligor: The individual who owes another person a certain debt or duty
Obliteration: A destruction; an eradication of written words
Obscene: Offensive to recognized standards of decency
Obscenity: The character or quality of being obscene; an act, utterance, or item tending to
corrupt the public morals by its indecency or lewdness
Obstruction of justice: Obstruction of justice is a criminal offense that involves interference,
through words or actions, with the proper operations of a court or officers of the court
Occupancy: Gaining or having physical possession of real property subject to, or in the absence
of, legal right or title
Occupational disease: A disease resulting from exposure during employment to conditions or
substances that are detrimental to health (such as black lung disease contracted by miners)
O
DICTIONARY OF LEGAL TERMS OCCUPATIONAL DISEASE 157
Trang 2Of counsel: A term commonly applied in the PRACTICE OF LAW to an attorney who has been employed to aid in the preparation and management of a particular case but who is not the principal attorney in the action
Of course: Any action or step that an individual might take during judicial proceedings without being required to ask the judge’s permission or that will receive the judge’s automatic approval
if the individual does ask permission; that which is a matter of right
Of record: Entered on the appropriate official documents maintained by a governmental body and that are usually available for inspection by the public
Offense: A breach of criminal law; a crime
Offer: A promise that, according to its terms, is contingent upon a particular act, forbearance, or promise given in exchange for the original promise or the performance thereof; a demonstration of the willingness of a party to enter into a bargain, made in such a way that another individual is justified in understanding that his or her assent to the bargain is invited and that such assent will conclude the bargain
Office audit: A thorough examination and verification of the tax returns and financial records of
an individual or firm by the INTERNAL REVENUE SERVICE in the office of the agent who is conducting the review
Officer: An individual with the responsibility of performing the duties and functions of an office that is a position of trust There are several types of officers in the law enforcement field, including parole officers, probation officers, police officers, peace officers, and corrections officers
Officers of the court: An all-inclusive term for any type of court employee including judges, clerks, sheriffs, marshals, bailiffs, and constables Such persons take an oath to uphold the judicial system and are bound to ethical standards
Official Gazette: A compilation published weekly by the United States PATENT AND TRADEMARK OFFICE(USPTO) listing all the patents and trademarks issued and registered, thereby providing notice to all interested parties
Offset: A contrary claim or demand that may cancel or reduce a given claim; a counterclaim Ombudsperson: A public official who acts as an impartial intermediary between the public and government or bureaucracy, or an employee of an organization who mediates disputes between employees and management
Omnibus: [Latin, For all; containing two or more independent matters.] A term frequently used in reference to a legislative bill comprised of two or more general subjects that is designed to compel the executive to approve provisions that he or she would otherwise reject but that he or she signs into law to prevent the defeat of the entire bill
On demand: Payable immediately on request
On or about: Near; approximately; without significant variance from an agreed date
On point: Directly applicable or dispositive of the matter under consideration Relevant to the matter at hand
One person, one vote: The principle that all citizens, regardless of where they reside in a state, are entitled to equal legislative representation
158 OF COUNSEL DICTIONARY OF LEGAL TERMS
Trang 3Onus probandi: [Latin, The burden of proof.] In the strict sense, a term used to indicate that if no
evidence is set forth by the party who has the burden of proof–that is, the duty to establish the
existence of facts in support of a disputed issue–then the issue must be found against that
party Often shortened onus
Open: To make accessible, visible, or available; to submit to review, examination, or inquiry
through the elimination of restrictions or impediments
Open account: An unpaid or unsettled account, which can take the form of ongoing charges by a
seller and payments by a buyer; an account with a balance that has not been ascertained, that is
kept open in anticipation of future transactions A type of credit extended by a seller to a buyer
that permits the buyer to make purchases without a note or security and is based on an
evaluation of the buyer’s credit A contractual obligation that may be modified by subsequent
agreement of the parties, either by expressed consent or by consent implied from the conduct
of the parties, provided the agreement changing the contractual obligation is based upon
independent consideration
Open bid: An offer to perform a contract, generally of a construction nature, in which the bidder
reserves the right to reduce his or her bid to compete with a lower bid
Open court: In the interest of promoting access to justice, many state constitutions contain
“open courts” provisions, whereby would-be litigants can count on the state’s courts to be
open and available to them in matters of legal need Article 1, Section 14 of the Missouri
Constitution, for example, provides, that“every man, for any injury done to him in his person
or property, ought to have remedy by the course of the Law of the land, and ought to have
justice and right, freely without sale, fully without any denial, and speedily without delay,
according to the Law of the land.”
Open-end contract: An agreement that allows a buyer to make purchases over a period of time
without a change in the price or terms by the seller, such as when exact quantities are not
known in advance A minimum and maximum number of units available for purchase must be
stated in the contract
Open-end credit: A type of revolving account that permits an individual to pay, on a monthly
basis, only a portion of the total amount due A creditor may anticipate repeated purchases
from this customer, and the creditor may also impose a periodic finance charge on the
customer’s remaining balance The available amount of credit (set in advance by the creditor)
may be used by the customer to the extent that their balance is paid
Open-end mortgage: A mortgage that allows the borrowing of additional sums, often on the
condition that a stated ratio of collateral value to the debt be maintained A mortgage that
provides for future advances on the mortgage and which so increases the amount of the
mortgage The most commonly known form of an open-end mortgage is an equity line on a
residence An open-end mortage takes precedence over subsequent grantees of the mortgaged
property, even if fully paid off, as long as it is left open
Open listing: A type of real estate listing contract whereby any agent who has a right to
participate in the open listing is entitled to a commission if he or she produces the sale
Open shop: A business in which union and nonunion workers are employed A business in which
union membership is not a condition of securing or maintaining employment The laws under
which such businesses operate are also known as“Right to Work” laws
Opening statement: An introductory statement made by the attorneys for each side at the start of
a trial The opening statement, although not mandatory, is seldom waived because it offers a
valuable opportunity to provide an overview of the case to the jury and to explain the
anticipated proof that will be presented during the course of the trial
DICTIONARY OF LEGAL TERMS OPENING STATEMENT 159
Trang 4Operation of law: The manner in which an individual acquires certain rights or liabilities through no act or cooperation of his or her own, but merely by the application of the established legal rules to the particular transaction
Opinion evidence: Evidence of what the witness thinks, believes, or infers in regard to facts in dispute (generally on matters regarding science, medicine, or another pertinent learned field of specialty), as distinguished from personal knowledge of the facts themselves Non-federal rules
of evidence vary from state to state
Oppression: The offense, committed by a public official, of wrongfully inflicting injury, such as bodily harm or imprisonment, upon another individual under aegis of his/her position Option: A privilege, for which a person has paid money, that grants that person the right to purchase or sell certain commodities or certain specifiedSECURITIESat any time within an agreed period for a fixed price
A right, which operates as a continuing offer, given in exchange for consideration— something of value—to purchase or lease property at an agreed price and terms within a specified time
Oral contract: An agreement between parties that exists in a combination of writing and spoken words or other non-written communication or that is completely comprised of non-written communication
Ordeal: One of the most ancient forms of trial in England that required the accused person to submit to a dangerous or painful test on the theory that God would intervene and disclose his
or her guilt or innocence
Order: Direction of a court or judge normally made or entered in writing, and not included in a judgment, which determines some point or directs some step in the proceedings Order may also refer to a directive issued by the executive branch of the government or by an administrative agency
Order of the coif: An unincorporated national scholastic honor society in law Its purpose is to foster excellence in legal scholarship and to recognize those who have attained high grades in law school or who have distinguished themselves in the teaching of law There are more than sixty chapters located in law schools throughout the country
Ordinance: A law, statute, or regulation enacted by a municipal corporation
Organ Donation Law: The Uniform Anatomical Gift Act drafted in 1968 was the first effort at providing a national organ and tissue donation policy The act created a uniform legal procedure for persons who wish to donate organs and for hospitals and medical institutions that want to accept them Under this model act, which has been adopted in some form by all 50 states, a person of sound mind, who is at least 18 years of age, may donate all or part of his or her own body
Organ transplantation: The transfer of organs, such as the kidneys, heart, or liver, from one body to another
Organic law: The basic law or ruling document of a country, either textual or unwritten, that sets down the fashion in which its government will be organized
Organization: A generic term for any type of group or association of individuals who are joined together either formally or legally, typically with a common purpose
Organized crime: Criminal activity carried out by an organized enterprise
160 OPERATION OF LAW DICTIONARY OF LEGAL TERMS
Trang 5Original intent: Original intent is the theory of interpretation by which judges attempt to
ascertain the meaning of a particular provision of a state or federal constitution by determining
how the provision was understood at the time it was drafted and ratified
Original jurisdiction: The authority of a tribunal to entertain a lawsuit, try it, and set forth a
judgment on the law and facts
Original writ: A document formerly used to commence a lawsuit in English courts
Origination fee: A charge imposed by a lending institution or a bank for the service of processing
a loan
Orphan’s court: The designation of tribunals in a number of northeastern U.S states that have
probate or surrogate jurisdiction Some jurisdictions refer to this type of court as a“probate
court.”
Ostensible: Apparent; visible; exhibited
Out-of-court settlement: An agreement reached between the parties in a pending lawsuit that
resolves the dispute to their mutual satisfaction and occurs without judicial intervention,
supervision, or approval
Outlawry: A declaration under oldENGLISH LAWby which a person found inCONTEMPTon a civil or
criminal process was considered an outlaw—that is, someone who is beyond the protection or
assistance of the law
Output contract: In the law of sales, an agreement in which one party assents to sell his or her
total production to another party, who agrees to purchase it The quantity is measured by the
seller’s output, and this type of contract assures the seller of an purchaser for his/her goods for
the length of the contract
Outstanding warrant: An order that has not yet been carried out; an order for which the action
commanded has not been taken A well-known example is an outstanding arrest warrant
Overbreadth doctrine: A principle ofJUDICIAL REVIEWthat holds that a law is invalid if it punishes
constitutionally protected speech or conduct along with speech or conduct that the
government may limit to further a compelling government interest
Overdraft: A check that is drawn on an account containing less money than the amount stated on
the check Terms of various accounts may provide for potentially high fees for excess
expenditures
Overhead: A sum total of the administrative or executive costs that relate to the management,
conduct, or supervision of a business that are not attributable to any one particular product or
department Some of these outlays may be deductible as business expenses Certain overhead
also may figure in the funds paid to court-appointed lawyers as a matter of reimbursement for
rendering public legal services
Overreaching: Exploiting a situation through FRAUD or UNCONSCIONABLE conduct Prosecutorial
overreaching takes place when the government, through either gross negligence or deliberate
action, causes heightened circumstances that prejudice a defendant, leading to the reasonable
conclusion that the further continuance of the now-tainted case would result in a conviction
Override: Money, in the form of a commission, paid to a manager from a sale that is made by a
subordinate
DICTIONARY OF LEGAL TERMS OVERRIDE 161
Trang 6Overrule: The refusal by a judge to sustain an objection set forth by an attorney during a trial, such as an objection to a particular question posed to a witness To make void, annul, supersede, or reject through a subsequent decision or action
Overt: Public; open; manifest
Overt act: An open, manifest act from which criminality may be implied An outward act done in pursuance and manifestation of an intent or design
Owner: The person or other entity the law recognizes as having the ultimate control over, and right to use, property as long as the law permits and no agreement or covenant limits his or her
or its rights An owner could even be a public entity, for example, as in the case of public land
or structures
Oyer and terminer: [French, To hear and decide.] The designation “court of oyer and terminer” is frequently used as the actual title, or a portion of the title, of a state court that has criminal jurisdiction over felonious offenses
Oyez: [French, Hear ye.] A word used in some courts by the public crier to indicate that a proclamation is about to be made and to command attention to it
Pacifism: A belief or policy in opposition to war or violence as a means of settling disputes Pacifists maintain that unswerving nonviolence can bestow upon people a power greater than that achieved through the use of violent aggression
Packing: The exercise of unlawful, improper, or deceitful means to obtain a jury composed of individuals who are favorably disposed to render a desired verdict
Pact: A bargain, compact, or agreement An agreement between two or more nations or states that is similar to, but less complex than, a treaty
Pacta sunt servanda: [Latin, Promises must be kept.] An expression signifying that the agreements and stipulations of the parties to a contract must be observed
Pactum: [Latin, Pact.] A compact, bargain, or agreement
Pairing-off: In the practice of legislative bodies, a system by which two members, who either belong to opposing political parties or are on opposite sides with respect to a certain issue, mutually agree that they will both be absent from voting, either for a specified period or when a vote is to be taken on a particular issue
Pais: [French, The country; the neighborhood.] A trial per pais denotes a trial by the country; that
is, trial by jury
Palm off: To misrepresent the inferior goods of one producer as the superior goods of a more reputable and well-regarded competitor in order to gain commercial advantage and promote sales
Palpable: Easily perceptible, plain, obvious, readily visible, noticeable, patent, distinct, manifest
P
162 OVERRULE DICTIONARY OF LEGAL TERMS
Trang 7Pander: To pimp; to cater to the gratification of the lust of another To entice or procure a
person, by promises, threats, fraud, or deception to enter any place in which prostitution is
practiced for the purpose of prostitution
Panel: A list of jurors to serve in a particular court or for the trial of a designated action A group
of judges of a lesser number than the entire court convened to decide a case, such as when a
nine-member appellate court divides into three, three-member groups, and each group hears
and decides cases A plan in reference to prepaid legal services
Paper: A document that is filed or introduced in evidence in a lawsuit, as in the phrases papers in
the case and papers on appeal
Any written or printed statement, including letters, memoranda, legal or business
documents, and books of account, in the context of the FOURTH AMENDMENT to the U.S
Constitution, which protects the people from unreasonableSEARCHES AND SEIZURESwith respect
to their“papers” as well as their persons and houses
In the context of accommodation paper andCOMMERCIAL PAPER, a written or printed evidence
of debt
Par: In commercial law, equal; equality
Parallel citation: A reference to the same case or statute published in two or more sources
Paramount title: In the law of real property, ownership that is superior to the ownership with
which it is compared, in the sense that the former is the source or the origin of the latter
Parcener: A joint heir
Pardon: A pardon in the action of an executive official of the government that mitigates or sets
aside the punishment for a crime
Parens patriae: [Latin, Parent of the country.] The inherent power and authority of the state to
protect persons who are legally unable to act on their own behalf
Parent and child: The legal relationship between a father or mother and his or her offspring
Parent company: An enterprise, also known as a parent corporation or holding company, that
either owns other companies outright or owns more than 50 percent of their voting shares
Pari causa: [Latin, With equal right.] Upon an equal footing; having the same rights or claims
Pari delicto: [Latin, In equal fault.] The doctrine, also known as in pari delicto, that provides that
courts will not enforce an invalid contract; also, in an action where it is necessary for one party
to prove the existence of an illegal contract in order to make his or her case, that no party can
recover
Pari materia: [Latin, Of the same matter; on the same subject.] The phrase used in connection with
two laws relating to the same subject matter that must be analyzed with each other
Pari passu: When a company issues new shares of stock, and those shares confer rights equal and
equivalent to those associated with pre-existing shares (e.g., pertaining to voting or receipt of
dividends), the new issuance is described as ranking pari passu with the others
Parity: In 1996 Congress passed the Mental Health Parity Act (MHPA), and President Bill
Clinton signed it into law MHPA provides for parity, or equality, between a group health
plan’s aggregate lifetime and annual dollar limits on mental health benefits and such limits on
DICTIONARY OF LEGAL TERMS PARITY 163
Trang 8medical and surgical benefits Prior to MHPA’s enactment, group health plans were permitted
to set lower limits for mental health benefits
Parliamentary law: The general body of enacted rules and recognized usages governing the procedure of legislative assemblies and other deliberative sessions, for example meetings of stockholders and directors of corporations, town meetings, and board meetings Roberts Rules
of Order provides examples of such rules Also called parliamentary procedure
Parody: A form of speech protected by the First Amendment as a “distorted imitation” of an original work for the purpose of commenting on it
Parol evidence: Parol refers to verbal expressions or words Verbal evidence, such as the testimony of a witness at trial
Parole: The conditional release of a person convicted of a crime prior to the expiration of that person’s term of imprisonment, subject to both the supervision of the correctional authorities during the remainder of the term and a resumption of the imprisonment upon violation of the conditions imposed
Particular average loss: In maritime law, damage sustained by a ship, cargo, or freight that is not recompensed by contribution from all interests in the venture but must be borne by the owner
of the damaged property
Particulars: The details of a claim, or the separate items of an account
Parties: The persons who are directly involved or interested in any act, affair, contract, transaction, or legal proceeding; opposing litigants
Partition: Partition is any division of real property or PERSONAL PROPERTY between co-owners, resulting in individual ownership of the interests of each
Partnership: An association of two or more persons engaged in a business enterprise in which the profits and losses are shared proportionally The legal definition of a partnership is generally stated as“an association of two or more persons to carry on as co-owners a business for profit” (Revised Uniform Partnership Act § 101[1994])
Party: Any person involved in a transaction or proceeding A group of voters organized for the purpose of influencing governmental policy, particularly through the nomination and election
of candidates for public office
Party of the first part: A phrase used in a document to avoid repeating the name of the persons first mentioned in it
Party wall: A partition erected on a property boundary, partly on the land of one owner and partly on the land of another, to provide common support to the structures on both sides of the boundary
Pass: Pass is used often in legalese as both a noun and verb As a noun, it is a license to go or come; a certificate, emanating from authority, wherein it is declared that a designated person is permitted to go beyond certain boundaries that, without such authority, he could not lawfully exceed Also a ticket issued by a transportation company, legally authorizing a designated person to travel free on its lines, between certain points or for a limited time
As a verb, it means to proceed or be rendered or given, as when judgment is said to pass for
a plaintiff in a suit In legislature, a bill or resolution is said to pass when it is agreed to or enacted by the house, sanctioning its adoption by the majority of votes Legally, it also means
to pronounce an opinion, judgment, or sentence, and to sit in adjudication Furthermore, to
164 PARLIAMENTARY LAW DICTIONARY OF LEGAL TERMS
Trang 9publish, utter, transfer, circulate, or impose fraudulently, as in the passing of counterfeit
money or a forged paper
Passim: [Latin, Everywhere.] A term frequently used to indicate a general reference to a book or
legal authority
Passport: A document that indicates permission granted by a sovereign to its citizen to travel to
foreign countries and return and requests foreign governments to allow that citizen to pass
freely and safely
With respect to INTERNATIONAL LAW, a passport is a license of safe conduct, issued during
a war, that authorizes an individual to leave a warring nation or to remove his or her effects
from that nation to another country; it also authorizes a person to travel from country to
country without being subject to arrest or detention because of the war
In maritime law, a passport is a document issued to a neutral vessel by its own government
during a war that is carried on the voyage as evidence of the nationality of the vessel and as
protection against the vessels of the warring nations This paper is also labeled a pass, sea-pass,
sea-letter, or sea-brief It usually contains the captain’s or master’s name and residence; the
name, property, description, tonnage, and destination of the ship; the nature and quantity of
the cargo; and the government under which it sails
Pat pend.: An abbreviation displayed prominently on an invention for which an application for a
patent has been made but has not yet been issued
Patent: Open; manifest; evident
Patent troll: A pejorative term for a person or company that aggressively pursues patent
infringement suits, usually with no intention of manufacturing or marketing the patent itself
Patent writ: A court order left open to viewing, in opposition to a closed writ, which would have
it contents hidden from plain view
Patents: Rights granted to inventors by the federal government, pursuant to its power under
Article I, Section 8, Clause 8, of the U.S Constitution, that permit them to exclude others from
making, using, or selling an invention for a definite, or restricted, period of time
Paternity: The state or condition of a father; the relationship of a father
Paternity suit: A civil action brought against an unwed father by an unmarried mother to obtain
support for an illegitimate child and for payment of bills incident to the pregnancy and the
birth
Patients’ rights: The legal interests of persons who submit to medical treatment
Patronage: The practice or custom observed by a political official of filling government positions
with qualified employees of his or her own choosing
Pauper: An impoverished person who is supported at public expense; an indigent litigant who is
permitted to sue or defend without paying costs; an impoverished criminal defendant who has
a right to receive legal services without charge
Pawn: To deliverPERSONAL PROPERTYto another as a pledge or as security for a debt A deposit of
goods with a creditor as security for a sum of money borrowed
Pawnbroker: A person who engages in the business of lending money, usually in small sums, in
exchange for personal property deposited with him or her that can be kept or sold if the
borrower fails or refuses to repay the loan A pawnbroker is considered a“bailee” of goods
DICTIONARY OF LEGAL TERMS PAWNBROKER 165
Trang 10Payable: Justly due; legally enforceable.
Payee: The person who is to receive the stated amount of money on a check, bill, or note Payment: The fulfillment of a promise; the performance of an agreement A delivery of money,
or its equivalent in either specific property or services, by a debtor to a creditor
P.C.: An abbreviation for professional corporation, which is a special corporation established by professionals, such as physicians, accountants, or, in some states, attorneys, who practice together
Peace bond: The posting of money in court, as required by a judge or magistrate, by a person who has threatened to commit a breach of an order; the bond will be forfeited if the order is violated
Peace officers: Officers whose duty it is to enforce and preserve the public order, named to provide specialized services directed primarily at a named purpose or agency Examples include constables, officers, agents, marshalls, city police officers, and other public officials
Peculation: The unlawful appropriation, by a depositary of public funds, of the government property entrusted to the care of the depository (comparable to embezzlement); the fraudulent diversion to an individual’s personal use of money or goods entrusted to that person’s care In the drafting of the federal False Claims Act during the 1860s, members of Congress condemned and reacted to reports of“fraud and peculation” by state officials involved in the procuring of military materials used in the Civil War The term is not commonly used in the twenty-first century
Pecuniary: Monetary; relating to money; financial; consisting of money or that which can be valued in money In litigation, the adjective is often used in the context of damages in connection with a type of loss measurable in dollars (e.g., pecuniary losses due to time out of work as a result of an accident caused by another’s negligence) In a securities context, the adjective can refer to an ownership position by which a party stands to gain (or lose) financially For example, a party could have a pecuniary interest in a corporation, in which case they own part of it and may be entitled to a share of the profits and/or an opportunity to sell shares to a buyer in exchange for money
Pederasty: The criminal offense of unnatural copulation between men
Peers: Equals; those who are an individual’s equals in rank and station
Pen register: A pen register is a device that decodes or records electronic impulses, allowing outgoing numbers from a telephone to be identified
Penal: Punishable; inflicting a punishment
Penalty: A punitive measure that the law imposes for the performance of an act that is proscribed, or for the failure to perform a required act
Pendent jurisdiction: The discretionary power of a federal court to permit the assertion of a related state law claim, along with a federal claim between the same parties, properly before the court, provided that the federal claim and the state law claim derive from the same set of facts Pendente lite: [Latin, while the action is pending.] During the actual progress of a lawsuit Example:“Alimony pendente lite” means an order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding
Pending: Begun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; in the process of adjustment
166 PAYABLE DICTIONARY OF LEGAL TERMS