Susan Ellis Wild - Webster's New World Law Dictionary

a vinculo matrimonii adv. Latin. From the bond of marriage. See divorce.

avoid v. Slang. To annul, cancel, make void, or nullify for some legal reason a transaction to which one is a party or owes an obligation. For example, a child who is under the age of capacity may disavow a contract and avoid her obligations under it because she lacks the legal capacity to enter into a contract. See also annul, voidable, and ratify.

avoidance n. 1 The act of keeping away from, escaping, evading, or preventing. 2 Same as confession and avoidance. 3 Same as tax avoidance. 4 Same as voidance.

avulsion n. The sudden and perceptible removal or severing of land from the property or jurisdiction of which it was a part by natural forces such as a flood or an abrupt change in the course of a river. Despite the removal or severing of the land, the boundaries between jurisdictions or properties are not altered by avulsion. For example, if a river was the boundary between two states, the boundary remains the same although the course of the river has changed. See also alluvion, accretion and reliction.

award 1 n. The final decision of an arbitrator. 2 The final decision of a court, jury, or administrative tribunal granting damages or other relief to a party. 3 v. To formally grant such relief. See also confirmation, judgment, and order.

AWOL abbr. See absent without leave.

B

BAC abbr. Blood alcohol content.

bad character n. A person’s predisposition to commit evil acts.

bad check See check.

bad debt n. An uncollectible debt arising due to the debtor’s refusal to pay, insolvency, or bankruptcy.

bad faith n. Dishonesty of purpose; lack of fairness and honesty; the continuous and willful failure to fulfill one’s duties or obligation. See also good faith.

badge of fraud n. The facts or circumstances surrounding a transaction that indicate that one party is trying to hinder or defraud another party, especially a court, an opposing party in an action, or a creditor. Such badges include, among other things, the transfer of property in anticipation of litigation or execution. See also fraud.

badge of slavery n. 1 A legal disability imposed on a slave, such as the inability to vote, own property, or enter into a contract. 2 Any visible trace of slavery, such as racial discrimination in public education. 3 Any public or private act of racial discrimination that Congress can prohibit under the Thirteenth Amendment to the United States Constitution.

bad title See title.

bail 1 n. Security, such as cash, a bond, or property, pledged or given to a

court by or on behalf of one accused of committing a crime, to obtain release from incarceration and to ensure the person’s future appearance in court when required during the criminal proceeding. See also preventive detention and recognizance. 2 v. To obtain for oneself or another the release from incarceration by providing security to ensure the person’s future appearance at every stage in a criminal proceeding. 3 v. To temporarily give possession of personal property to someone. See also bailment.

excessive bail. Bail set in an amount greater than what is reasonable, in light of the seriousness of the alleged crime and the risk that the defendant might flee, to ensure the person’s appearance at every stage of a criminal proceeding. The Eighth Amendment to the United States Constitution prohibits the setting of bail in excessive amounts.

bail bond See bond.

bail bondsman See bailsman.

bailee n. One who temporarily possesses the personal property of another pursuant to and agreement between them. See also bailment.

bailer See bailsman and bailor.

bailiff n. 1 A court officer charged with maintaining order in the courtroom, with taking care of the judge’s and jury’s needs, and, in criminal proceedings, with the custody of the defendant. 2 A sheriff’s deputy or other officer who executes writs and serves processes and warrants of arrest. 3 One who oversees the administration of land, goods, and other property, including the collection of rent, for the owner.

bail jumping v. To flee, hide, or otherwise avoid an appearance at any stage in a criminal proceeding while free on bail.

bailment n. The delivery of personal property from one person (the bailor) to another (the bailee) in trust for some special purpose, as according to an express or implied contract. Only the lawful possession of the property, and not ownership, is transferred. The rights and duties of the parties as to the property depend on the purpose of the bailment and the terms of the contract. See also lease.

actual bailment. A bailment created by the actual or constructive delivery of personal property to a bailee or his agents.

bailment for hire. A bailment in which the bailor merely takes possession of personal property in exchange for compensation.

bailment for mutual benefit. A bailment in which the bailee, in exchange for compensation, provides the bailor with some additional benefit as to the bailor’s personal property, such as cleaning or repair work.

constructive bailment. A bailment in which, due to the particular circumstances, the bailee has a legal obligation to return the personal property to its owner, even if the owner is not the bailor or if the bailee did not voluntarily take possession of the property.

gratuitous bailment. A bailment in which the bailee accepts personal property without expecting compensation. For example, a gratuitous bailment is created when a bailee borrows the bailor’s property. In gratuitous bailments, the bailee is liable to the bailor for the loss of or damage to the property only if it was caused by the bailee’s gross negligence.

involuntary bailment. A bailment in which the bailor, without any negligence, unavoidably or accidentally

leaves personal property on the bailee’s person or land. If the bailee refuses to return the property upon the bailor’s demand or refuses to permit the bailor to remove the property, he can be liable for conversion. See also property.

bailment offense See offense.

bailor n. 1 Same as bailsman. 2

One who temporarily gives possession of personal property to another, pursuant to an agreement between them. The bailor does not have to be the owner of the property. See bailment.

bailsman n. One who provides bail to secure the release of a criminal defendant.

bait and switch v. The practice of advertising a product or service at a low price to bring customers into a store and, once they are there, urging them to buy a more expensive product or service by disparaging the original item or by saying that it is no longer available. This is illegal in most states, especially when the original product or service was not available at the time it was advertised.

balance 1 n. To determine the difference between the sum of the credits and the sum of the debits of an account. 2 v. The act of estimating, measuring, or weighing two things in comparison to each other. For example, the balancing of the risks and benefits of filing a lawsuit. 3 v. To offset or counteract. 4 v. To place or keep in equilibrium or proportion, such as balancing competing interests. 5 n. The result of balancing.

balance sheet n. A financial statement that indicates the value of an entity’s current fiscal situation as of a specific date, consisting of a summary of the value of assets and a summary of the value of its liabilities and the owners’ equity.

balancing of the equities n. A court’s weighing of such factors as policy and the convenience or hardship to the parties in order to determine the fairness of granting or denying equitable relief (such as an injunction).

balancing test n. The weighing, especially by a court, of competing values and interests and deciding which one will prevail, in an attempt to achieve equality or fairness between those values and interests.

banc See en banc.

B and E (or B & E) abbr. Breaking and entering. See burglary.

bank n. A financial institution, whether incorporated or not, with a substantial portion of its business consist-

loans and credit, exchange currencies, transmit funds, and deal in negotiable bonds and securities issued by corporations and the government.

commercial bank. A bank, often organized as a public corporation, that offers the broadest range of services allowed by law, but that is required to keep a larger percentage of its deposits on reserve than is required of savings and loan associations and savings banks.

savings and loan association. A financial institution, often organized and operated like a bank, with a primary purpose to make loans so that individuals can purchase or construct homes, but that also provide various banking services. See also building and loan association.

savings bank. A bank that receives deposits, maintains savings accounts (from which funds can usually be withdrawn only after a set period of time or advance notice), pays interest on them at usually higher rates than commercial banks, and makes certain loans. However, a savings bank cannot maintain checking accounts and is allowed to invest only in certain types of corporate and government bonds and securities.

bankrupt n. 1 A person or entity unable to pay debts due to insolvency. 2 A person (or entity) who has filed a voluntary petition for bankruptcy or against whom an involuntary petition for bankruptcy has been filed. See also debtor. 3 The state of having been declared bankrupt by a Bankruptcy Court.

bankruptcy n. A federal judicial procedure by which most debts owed by a person or entity are extinguished or reduced or the payment of which are delayed.

Chapter 7 bankruptcy. A bankruptcy proceeding whereby most of the debtor’s assets are collected and sold, the proceeds are distributed among the creditors, and the debtor’s liabilities are discharged. Also called a straight bankruptcy.

Chapter 11 bankruptcy. A bankruptcy proceeding whereby a debtor, usually a business, is allowed to reorganize itself and restructure its finances under court supervision and to arrange and carry out a court-approved repayment plan with its creditors while continuing to operate its business. Also called reorganization.

Chapter 12 bankruptcy. A bankruptcy proceeding whereby a farmer with a regular income who is insolvent can keep and continue operat-

ing his farm while arranging and carrying out, under court supervision, a repayment plan with his creditors.

Chapter 13 bankruptcy. A bankruptcy proceeding whereby a person with a regular income is allowed to propose a plan to reduce her obligations or extend the period to pay those obligations and allow her future earnings to be collected by a trustee and paid to the debtor’s unsecured creditors. Also called rehabilitation.

involuntary bankruptcy. A bankruptcy proceeding initiated by a creditor to legally declare a debtor to be bankrupt and to impound all of the debtor’s non-exempt property, distribute it or its proceeds to the creditors, and extinguish the debtor’s liability.

voluntary bankruptcy. A bankruptcy proceeding voluntarily initiated by a debtor who files a petition with the bankruptcy court to be legally declared a bankrupt and, during the proceeding, surrenders his property in order to discharge his debts.

Bankruptcy Act n. The federal statute, adopted in 1898, that governed all bankruptcy cases filed before October 1, 1979.

Bankruptcy Code n. The federal statute, adopted in 1978, that governs all bankruptcy cases filed after

District Court, or the bankruptcy judges assigned to a given United States District Court, that deals only with bankruptcy proceedings.

bankruptcy judge n. A United States District Court judge appointed by a United States Court of Appeals to pre-

side exclusively over bankruptcy proceedings filed within a designated United States District Court’s jurisdiction.

bankruptcy trustee n. See trustee.

bar 1 n. A legal obstacle or barrier that prevents or destroys a legal action or claim, especially one that prevents the relitigation of an issue or the formation of a valid contract. See also double jeopardy, estoppel, merger, plea, and res judicata. 2 v. To prevent, prohibit, or act as a bar to. 3 n. In bar. As a bar to an action. For example, if a defendant in a criminal action was acquitted earlier of the same charges that he is now accused, he may plead double jeopardy in bar. 4 adj. At bar. Now before the court. For example, an action that is before the court may be referred to as the case at bar. 5 n. The legal profession in general. 6 n. A group of attorneys admitted to practice law in a particular jurisdiction or before a particular court or who practice in a common field or area of expertise in the law. 7 n. The railing in a courtroom that separates the area used by the judge, lawyers, and court personnel to conduct judicial business from the seating provided for observers. See also bench.

bar association n. A professional organization of attorneys who practice law within a specific geographic area (for example, a state bar association) or who practice in a common field or area of expertise in the law (for example, a defense attorneys’ bar association).

integrated bar. A bar association in which membership is legally required of all attorneys who practice law in that state or jurisdiction. Also called a compulsory bar, mandatory bar, and unified bar.

voluntary bar. A bar association that attorneys do not need to join in order to practice law.

bare license See license.

bar examination n. A written examination administered by a state or an established licensing authority, such as a state bar association, usually lasting two or more days, that tests the legal knowledge of individuals seeking a license to practice law in a particular state. See admission.

bargain 1 n. A voluntary agreement between parties for the exchange or purchase of goods or services, regardless of whether the transaction is legal or the consideration is sufficient for the agreement to constitute a contract. Synonymous with contract. 2 v. To negotiate the terms of an agreement.

bargain and sale n. A written contract to convey the legal title of, and raise a use in, real property in exchange for valuable consideration recited in the agreement without requiring the parties to enter the land and perform a livery of seisin. Unless it includes a covenant of seisin and right to convey, the agreement contains no guarantees as to the seller’s title to the property. See also deed.

bargainee n. The purchaser of land in a bargain and sale. See also bargainor.

bargaining unit n. A group of employees represented by a labor union or other group engaged in collective bargaining with a company or industry. Also called a collective bargaining unit.

bargainor n. The seller of land in a bargain and sale. See also bargainee.

barrato See barrator.

barrator n. One who commits barratry. Also called barrato or common barrator.

barratry n. The persistent incitement or initiation of groundless lawsuits and

quarrels. Was a crime under the common law and is a statutory crime in most states. See also abuse of process, champerty, and maintenance.

barrister n. 1 In England, a lawyer who argues cases in court. See also solicitor. 2 In the United States, a lawyer.

barter 1 n. The exchange of goods or services without the use of money. 2 v. To negotiate, engage in, or conclude a barter.

basis n. The amount or value assigned to a taxpayer’s cost of acquiring, or investment in, an asset. Primarily used when determining the taxpayer’s gain or loss when the property is sold, bartered, or exchanged or the asset’s depreciation.

adjusted basis. The value of a taxpayer’s basis in an asset, after making additions or subtractions to his or her original basis, to reflect certain events, such as capital improvements and depreciation, that affect the value of the property subsequent to the taxpayer’s acquisition of or investment in the asset.

carryover basis. The basis of an asset transferred from one owner to another by gift or in trust at the time of the transfer.

recovery of basis. See recovery.

stepped-down basis. The taxpayer’s basis in an asset after the basis has been decreased to a certain value (usually its fair market value) upon a certain date or event. For example, the basis of inherited property is its fair market value as of the date of the decedent’s death or an alternate valuation date and the decedent’s stepped-down (or stepped-up) basis in the asset is the new owner’s original basis.

stepped-up basis. The taxpayer’s basis in an asset after the basis has been increased to a certain value (usually its fair market value) upon a certain date or event.

substituted basis. The basis of one asset that substitutes for that of another asset when the first asset has been exchanged or otherwise transferred in return for the second asset. The taxpayer does not incur any gain or loss, but substitutes the basis of the asset she transferred to the property she acquired.

bastard n. 1 Same as illegitimate child. See child. 2 The child of a married woman whose father is not the woman’s husband or whose paternity is not conclusively established.

bastardy proceeding n. See paternity suit.

battered-person syndrome n. The medical and psychological condition of a person who has suffered (usually persistent) emotional, physical, or sexual abuse from another person. Also called battered child syndrome or battered woman syndrome depending on the circumstances. In the case of a woman, her husband or partner inflicts the injuries. See also abuse.

battery n. The harmful or offensive touching of any part of another person’s body or of something, such as clothing or carried umbrella, that is so closely attached to the person that it is customarily regarded as part of the person. The touching may be in anger or a result of some other intentional wrong. Any amount of touching is considered a battery, even if harmless, if it is offensive to the person who is touched. See also assault and mayhem.

aggravated battery. See aggravated.

sexual battery. The forced penetration of or contact with another per-

son’s or the perpetrator’s sexual organs. See also rape.

simple battery. A battery with no accompanying aggravated circumstances and not resulting in serious bodily injury.

battle of the forms n. The conflict between the incompatible terms in preprinted standardized forms exchanged by a buyer and seller while negotiating a contract.

bearer n. A person in possession of a negotiable instrument, document of title, security, or other similar document that is marked “payable to bearer” or is indorsed in blank. Depending upon its nature, the document is called a bearer bond, bearer instrument, bearer paper, or the like and, if it is for the payment of money, it is said to be payable to bearer.

before the fact See accessory.

below adv. 1 Later in the same document. See also infra. 2 Of or in a court whose decision can be appealed. For example, when referring to a lower court’s decision, an appellant court may rule that “the decision below” is affirmed or reversed.

bench n. 1 Judges collectively or of a particular court. See also bar. 2 The area in the courtroom where the judge sits.

orandum summarizing the facts, issues, and arguments in a case, prepared either by a judge’s law clerk or by the lawyers in the case, for the judge to use when preparing for trail, for hearing the lawyers’ oral arguments, or in drafting a decision. Also called bench memo.

bench ruling n. An oral decision given, or a written decision read aloud, by a judge to the parties and their lawyers from the bench.

bench trial See trial.

bench warrant See warrant.

beneficial n. A right or interest that derives from something other than legal title. See estate, interest, owner, use, and equitable.

beneficiary n. A person entitled to an advantage, benefit, or profit (such as an inheritance under a will or the proceeds of an annuity, insurance policy, or property held in trust) arising from an appointment, assignment, disposition, instrument, or legal arrangement.

creditor beneficiary. A third-party beneficiary who is to receive the benefit of a contract in satisfaction of a debt, duty, or liability owed to them by the party who purchased the benefit. Under certain circumstances, the execution of the contract itself may discharge the obligation. In any case, the contract must be primarily for the third person’s benefit.

donee beneficiary. A third-party beneficiary who is to receive the benefit of a contract as a gift from the party who purchased the benefit.

incidental beneficiary. A person who is not a party to, but is the unintended beneficiary of, a contract or trust. Such a person has no legally enforceable right to the benefit they receive.

intended beneficiary. A person who is not a party to a contract or trust, but is intended by the parties to benefit from the contract or trust. Such a person has the ability to legally enforce the contract or trust once their right to the benefit vests.

third-party beneficiary. A person who is not a party to, but is the intended beneficiary of, a contract.

benefit n. That which is helpful; advantage; financial assistance; gain; privilege; profit.

benefit-of-the-bargain rule n. 1 In breach of contract cases, the principle that the aggrieved party is entitled from the party who breached the contract to everything that he would have received, including profits, if the breach had not occurred. 2 In cases involving fraud or misrepresentation of the value of property, the principle that the defrauded party is entitled to damages equal to the difference between the misrepresented value and the lower amount that represents the true value of the property. Also called loss of bargain. See also out- of-pocket rule.

bequeath v. 1 To give a gift of personal property by means of a will. See also devise. 2 In some states, to give a gift of any type of property by means of a will.

bequest n. 1 A gift of personal property (usually other than money) by means of a will. Also, any personal property given by means of a will. See also devise and legacy. 2 In a broader sense, any gift of property by means of a will. Also, any property given by means of a will, including a devise or a legacy.

conditional bequest. A bequest that is effective or continues unless some particular event does or does not occur. For example, a bequest from a parent to a child that is to effective only if the child is still a minor at the time of the parent’s death is a conditional bequest, because the parent may die after the child reaches adulthood.

executory bequest. A bequest that does not take effect until after the occurrence of a particular event. For example, a bequest from a parent to a child that is effective only if the child is 18 years of age or older at the time of the parent’s death is

an executory bequest, because the child must have first reached his 18th birthday to receive it.

general bequest. A bequest of a general type of property rather than of a specific item of personal property. For example, a bequest of “furniture” rather than “oak chair.” A bequest to be paid out of the general assets of the testator’s estate.

pecuniary bequest. See legacy.

residuary bequest. A bequest of what remains in the testator’s estate after the payment of debts and the satisfaction of all other bequests.

specific bequest. A bequest of a specific item of personal property.

best efforts n. Diligence beyond a mere good faith effort to fulfill an obligation. See also good faith and diligence.

best evidence rule n. The rule that, to prove the contents of a writing, recording, or photograph, the original is required unless it is not available for some reason other than the serious fault of the party trying to prove the contents thereof. If the original is unavailable, the testimony of the person who created the original or the person who read it (if a writing), listened to it (if a recording), or saw it (if a photograph) may testify to its content. However, modern evidentiary rules usually permit the use of mechanical, electronic, or other similar copy instead of the original.

bestiality n. 1 Sexual intercourse between a person and an animal. 2 In a broader sense, any sexual activity or contact between a person and an animal. See also crime (crime against nature), buggery, and sodomy.

betterment n. An improvement that adds to the value of real property.

beyond a reasonable doubt n. The standard for conviction in a criminal trial; evidence sufficient to convince a reasonable person beyond doubt of the guilt of the defendant. The requirement of proof beyond a reasonable doubt is not so stringent as to preclude the possibility of error, as is, “beyond the shadow of a doubt,” nor as loose as, “the preponderance of the evidence,” as is the standard in a civil trial.

BFOQ abbr. See bona fide occupational qualification.

BFP abbr. Bona fide purchaser. See purchaser.

bias n. A mental tendency, inclination, preconception, prejudice, taint.

bias crime See crime (hate crime).

bid 1 n. An offer to pay a specific price for something. 2 n. An offer to perform work or supply services at a specific price. 3 v. The act of submitting an offer to buy.

firm bid. A bid that is publicly announced when made and that is binding and cannot be revised until it is accepted or rejected.

open bid. A bid that is publicly announced when made and that the bidder may repeatedly revise as competing bids are announced.

sealed bid. A written bid that is secret and not disclosed until all submitted bids (which are also written and secret) are simultaneously opened and considered.

bid-shopping v. The legitimate practice whereby a general contractor, after being awarded a contract, tries to reduce his own costs by disclosing to interested subcontractors the lowest bids he received for subcontracts, and then inviting even lower bids.

bigamy n. 1 The crime of marrying a person while legally married to another. The second marriage is void. 2 In some states, the crime of cohabiting with a person of the opposite sex while legally married to another. See also monogamy and polygamy.

bilateral contract See contract.

bill 1 n. A draft of a proposed statute submitted to a legislature by one of its members for consideration and possible enactment.

appropriation bill. A bill that, if enacted, would authorize the expenditure of government funds.

engrossed bill. The draft of a bill as it is adopted by one house of a legislature and before it is sent to the other house for consideration. See also enrolled bill.

enrolled bill. The final draft of a bill after it is adopted by both houses of a legislature, printed, checked for errors, and signed by the presiding officers of both houses before it is sent to the president or a governor for approval or rejection. See also engrossed bill.

omnibus bill. 1 A bill that contains proposals on a variety of subjects. Usually, such a bill will have one major provision dealing with one topic and several minor provisions regarding matters unrelated to the major subject. 2 A bill that contains all proposals on a single (usually broad) subject, such as an omnibus education bill that includes all proposals regarding, however tangentially, the subject of education.

private bill. A bill concerning the interests, or affecting, only one or a small number of individuals, entities, or localities.

public bill. A bill concerning the general interests of, or affecting, the whole community, state, or country.

no bill or no true bill. The words used in a grand jury’s notation on a bill of indictment indicating that insufficient evidence exists to support a criminal charge set forth in the proposed indictment. Such a decision by the grand jury prevents the prosecution from pursuing a criminal action against the defendant based on those charges until a new grand jury is selected.

revenue bill. A piece of legislation for the purpose of levying taxes. By the United States Constitution, all federal revenue bills must originate in the House of Representatives. A similar provision constraining the origin of revenue bills to one particular house of the state legislature is part of many of the various state constitutions.

true bill. The words used in a grand jury’s notation on a bill of indictment indicating that sufficient evidence exists to support a criminal charge set forth in the proposed indictment that, if proved, would result in the defendant’s conviction. Once the bill of indictment is indorsed as a true bill and filed with the court, the prosecution must pursue a criminal action against the defendant based on those charges unless the court approves a dismissal.

2 n. A statement by one person or entity to another regarding money owed for goods sold and services performed. Usually, the statement is in the form of an itemized list of the goods and services, along with the amount owed for each item. 3 v. To submit a request for payment for goods sold and services performed. 4 n. In equity law, the initial pleading wherein a party sets out their cause of action. See also complaint and petition.