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Legal Dictionary C
Canon law :
The law of the Christian Church. Has little or no legal effect
today. Canon law refers to that body of law which has been set by the
Christian Church and which, in virtually all places, is not binding upon
citizens and has virtually no recognition in the judicial system. Some
citizens resort to canon law, however, for procedures such as marriage
annulments to allow for a Christian church marriage where one of the
parties has been previously divorced. Many church goers and church
officers abide by rulings and doctrines of canon law. Also known as
"ecclesiastical law."
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Capital punishment :
The most severe of all sentences: that of death. Also known as the
death penalty, capital punishment has been banned in many coutries. In
the United States, an earlier move to eliminate capital punishment has
now been reversed and more and more states are resorting to capital
punishment for serious offenses such as murder.
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Case law :
The entire collection of published legal decisions of the courts
which, because of stare decisis, contributes a large part of the legal
rules which apply in modern society. If a rule of law cannot be found in
written laws, lawyers will often say that it is a rule to be found in
"case law". In other words, the rule is not in the statute books but can
be found as a principle of law established by a judge in some recorded
case. The word jurisprudence has become synonymous for case law.
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Caveat :
Latin: let him beware. A formal warning. Caveat emptor means let the
buyer beware or that the buyers should examine and check for themselves
things which they intend to purchase and that they cannot later hold the
vendor responsible for the broken condition of the thing bought.
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Certiorari :
A writ of certiorari is a form of judicial review whereby a court is
asked to consider a legal decision of an administrative tribunal,
judicial office or organization (eg. government) and to decide if the
decision has been regular and complete or if there has been an error of
law. For example, a certiorari may be used to wipe out a decision of an
administrative tribunal which was made in violation of the rules of
natural justice, such as a failure to give the person affected by the
decision an opportunity to be heard.
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Cestui que trust or cestui
que use :
The formal Latin word for the beneficiary or donee of a trust.
Ceteris paribus Latin" all things being equal or unchanged.
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Champerty :
When a person agrees to finance someone else's lawsuit in exchange
for a portion of the judicial award.
CHAPTER 7 BANKRUPTCY: A type of bankruptcy in which a person's assets are liquidated (collected and sold) and the proceeds are distributed to the creditors.
CHAPTER 13 BANKRUPTCY: A type of bankruptcy in which a person keeps his assets and pays creditors according to an approved plan.
CHALLENGE FOR CAUSE: Ask that a potential juror be rejected if it is revealed that for some reason he or she is unable or unwilling to set aside preconceptions and pay attention only to the evidence.
CHANGE OF VENUE: A change in the location of a trial, usually granted to avoid prejudice against one of the parties.
CHARGING LIEN: Entitles a lawyer who has sued someone on a client's behalf the right to be paid from the proceeds of the lawsuit, if there are any, before the client receives those proceeds.
CHILD ABUSE: Defined by state statutes. Usually occurs when a parent purposefully harms a child.
CHILD NEGLECT: Defined by state statutes. Usually arises from a parent's passive indifference to a child's well-being, such as failing to feed a child or leaving a child alone for an extended time.
CHILDREN'S TRUST: A trust set up as part of a will or outside of a will to provide funds for a child.
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Chaste :
A person who has never voluntarily had sexual intercourse outside of
marriage such as unmarried virgins.
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Chattel :
Moveable items of property which are neither land nor permanently
attached to land or a building, either directly or vicariously through
attachment to real property. A piano is chattel but an apartment
building, a tree or a concrete building foundation are not. The opposite
of chattel is real property which includes lands or buildings. All
property which is not real property is said to be chattel. "Personal
property" or "personalty" are other words sometines used to describe the
concept of chattel. The word "chattel" came from the feudal era when
"cattle" was the most valuable property besides land.
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Chattel mortgage :
When an interest is given on moveable property other than real
property (in which case it is usually a "mortgage"), in writing, to
guarantee the payment of a debt or the execution of some action. It
automatically becomes void when the debt is paid or the action is
executed.
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Check or cheque :
A form of bill of exchange where the order to pay is given to a bank
which is holding the payor's money.
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Chose in action :
A right of property in intangible things or which are not in one's
possession, enforceable through legal or court action . Examples may
include salaries, debts, insurance claims, shares in companies and
pensions.
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Circumstantial evidence :
Evidence which may allow a judge or jury to deduce a certain fact
from other facts which have been proven. In some cases, there can be
some evidence that can not be proven directly, such as with an
eye-witness. And yet that evidence may be essential to prove a case. In
these cases, the lawyer will provide the judge or juror with evidence of
the circumstances from which a juror or judge can logically deduct, or
reasonably infer, the fact that cannot be proven directly; it is proven
by the evidence of the circumstances; hence, "circumstantial" evidence.
Fingerprints are an example of circumstantial evidence: while there may
be no witness to a person's presence in a certain place, or contact with
a certain object, the scientific evidence of someone's fingerprints is
persuasive proof of a person's presence or contact with an object.
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Citation :
An order of a court to either do a certain thing or to appear before
it to answer charges. The citation is typically used for lesser offences
(such as traffic violations) because it relies on the good faith of the
defendant to appear as requested, as opposed to an arrest or bail. The
penalty for failing to obey a citation is often a warrant for the arrest
of the defendant.
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Civil law :
Law inspired by old Roman Law, the primary feature of which was that
laws were written into a collection; codified, and not determined, as is
common law, by judges. The principle of civil law is to provide all
citizens with an accessible and written collection of the laws which
apply to them and which judges must follow.
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Clandestine :
Something that is purposely kept from the view or knowledge of
others either in violation of the law or to conduct or conceal some
illegal purpose. A "clandestine marriage" would be one which does not
comply with laws related to publicity.
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Class action :
When different persons combine their lawsuits because the facts and
the defendant are so similar. This is designed to save Court time and to
allow one judge to hear all the cases at the same time and to make one
decision binding on all parties. Class action lawsuits would typically
occur after a plane or train accident where all the victims would sue
the transportation company together in a class action suit.
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Clayton's Case :
An English case which established a presumption that monies
withdrawn from a money account are presumed to be debits from those
monies first deposited. First in, first out. The proper citation is
Devaynes v. Noble (1816) 1 Mer. 572) and the presumption is not
applicable to fiduciaries, who are presumed to withdraw their won money
first, and not trust money.
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Clean hands :
A maxim of the law to the effect that any person, individual or
corporate, that wishes to ask or petition a court for judicial action,
must be in a position free of fraud or other unfair conduct.
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Client-solicitor privilege
:
A right that belongs to the client of a lawyer that the latter keep
any information or words spoken to him during the provision of the legal
services to that client, strictly confidential. This includes being
shielded from testimony before a court of law. The client may, expressly
or impliedly, waive the privilege and, exceptionally, it may also be
waived by the lawyer if the disclosure of the information may prevent a
serious crime.
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Codicil :
An amendment to an existing will. Does not mean that the will is
totally changed; just to the extent of the codicil.
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Collateral :
Property which has been committed to guarantee a loan.
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Collateral descendant :
A descendant that is not direct, such as a niece or a cousin.
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Collateral source :
rule A rule of tort law which holds that the tortfeasor is not
allowed to deduct from the amount he or she would be held to pay to the
victim of the tort, any goods, services or money received by that victim
from other "collateral" sources as a result of the tort (eg. insurance
benefits).
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Collusion :
A secret agreement between two or more persons, who seem to have
conflicting interests, to abuse the law or the legal system, deceive a
court or to defraud a third party. For example, if the partners in a
marriage agree to lie about the duration of their separation in order to
secure a divorce.
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Commission :
A formal group of experts brought together on a regular or ad hoc
basis to debate matters within that sphere of expertise, and with
regulatory or quasi-judicial powers such as the ability to license
activity in the sphere of activity or to sub poena witnesses.
Commissions usually also have advisory powers to government. The
organizational form of a commission is often resorted to by governments
to exhaustively investigate a matter of national concern, and is often
known as a "commission of inquiry." This legal structure can be
contrasted with a council, the latter not enjoying quasi-judicial or
regulatory powers.
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Committee :
A term of parliamentary law which refers to a body of one or more
persons appointed by a larger assembly or society, to consider,
investigate and/or take action on certain specific matters. A committee
only has those powers which have been assigned to it by the constituent
assembly. Most are merely created to study matters in detail and to then
report to the larger group. This saves the larger assembly time when it
meets and allows it to review and approve a greater number of items,
relying on the committee's report and recommendations. Committees are
either standing or ad hoc (this latter kind is also known as a "special
committee).
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Common law :
Judge-made law. Law which exists and applies to a group on the basis
of historical legal precedents developed over hundreds of years. Because
it is not written by elected politicians but, rather, by judges, it is
also referred to as "unwritten" law. Judges seek these principles out
when trying a case and apply the precedents to the facts to come up with
a judgement. Common law is often contrasted with civil law systems which
require all laws to be written in a code or written collection. Common
law has been referred to as the "common sense of the community,
crystallized and formulated by our ancestors". Equity law developed
after the common law to offset the rigid interpretations medieval
English judges were giving the common law. For hundreds of years, there
were separate courts in England and it's dependents: one for common law
and one for equity and the decisions of the latter, where they
conflicted, prevailed. It is a matter of legal debate whether or not
common law and equity are now "fused." It is certainly common to speak
of the "common law" to refer to the entire body of English law,
including common law and equity.
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Common share :
The basic share in a company. Typically, common shares have voting
rights and a pro rata right to any dividends declared. They differ from
preferred shares which, by definition, carry some kind of right or
privilege above the common shares (eg. first to receive any dividends).
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Company :
A legal entity, allowed by legislation, which permits a group of
people, as shareholders, to create an organization, which can then focus
on persuing set objectives, and empowered with legal rights which are
usually only reserved for individuals, such as to sue and be sued, own
property, hire employees or loan and borrow money. Also known as a
"corporation." The primary advantage of a company structure is that it
provides the shareholders with a right to participate in the profits (by
dividends) without any personal liability (the company absorbs the
entire liability of the business).
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Comparative negligence :
A principle of tort law which looks at the negligence of the victim
and which may lead to either a reduction of the award against the
defendant, proportionate to the contribution of the victim's negligence,
or which may even prevent an award altogether if the victim's
negligence, when compared with the defendant, is equal to or greater in
terms or contributing to the situation which caused the injury or
damage.
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Condition precedent :
A contractual condition that suspends the coming into effect of a
contract unless or until a certain event takes place. Many residential
real estate contracts have a condition precedent which states that the
contract is not binding until and unless the property is subjected to an
professional inspection, the results of which are satisfactory to the
purchaser. Compare with "condition subsequent".
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Condition subsequent :
A condition in a contract that causes the contract to become invalid
if a certain event occurs. This is different from a condition precedent.
The happening of a condition subsequent may invalidate a contract which
is, until that moment, fully valid and binding. In the case of a
condition precedent, no binding contract exists until the condition
occurs.
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Condonation :
Divorces can be obtained by showing a fault of the other spouse,
such as adultery or cruelty. But a court will refuse to grant a divorce
based on these grounds if there has been "condonation", which is the
obvious or implied forgiveness of the fault. For example, if the
"injured" spouse resumes cohabitation with the "guilty" spouse after
being informed of the adultery, and for a long period or time, the
"injured" spouse may be barred from divorce on the grounds of adultery
because of "condonation".
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Confession :
A statement made by a person suspected or charged with a crime, that
he (or she) did, in fact, commit that crime.
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Consensus :
A result achieved through negotiation whereby a hybrid solution is
arrived at between parties to an issue, dispute or disagreement,
comprising typically of concessions made by all parties, and to which
all parties then subscribe unanimously as an acceptable resolution to
the issue or disagreement.
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Consensus ad idem:
Latin term meaning an agreement, a meeting of the minds between the
parties where all understand the committments made by each. This is a
basic requirement for each contract.
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Consideration :
Under common law, there can be no binding contract without
consideration, which was defined in an 1875 English decision as "some
right, interest, profit or benefit accruing to the one party, or some
forbearance, detriment, loss or responsibility given, suffered or
undertaken by the other". Common law did not want to allow gratuitous
offers, those made without anything offered in exchange (such as gifts),
to be given the protection of contract law. So they added the criteria
of consideration. Consideration is not required in contracts made in
civil law systems and many common law states have adopted laws which
remove consideration as a prerequisite of a valid contract.
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Consign :
To leave an item of property in the custody of another. A item can
be consigned to a transportation company, for example, for the purpose
of transporting it from one place to another. The consignee is the
person to receive the property and the consignor is the person who ships
the property to the consignee.
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Conspiracy :
An agreement between two or more persons to commit a criminal act.
Those forming the conspiracy are called conspirators.
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Constitution :
The basic law or laws of a nation or a state which sets out how that
state will be organized by deciding the powers and authorities of
government between different political units, and by stating and the
basic principles of society. Constitutions are not necessarily written
and may be based on aged customs and conventions, as is the case in
England and New Zealand (the USA, Canada and Australia all have written
constitutions).
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Construction :
The legal process of interpreting a phrase or document; of trying to
find it's meaning. Whether it be a contract or a statute, there are
times when a phrase may be unclear or of several meanings. Then, either
lawyers or judges must attempt to interpret or "construct" the probable
aim and purpose of the phrase, by extrapolating from other parts of the
document or, in the case of statutes, referring to a interpretation law
which gives legal construction guidelines. Generally, there are two
types of construction methods: literal (strict) or liberal.
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Constructive dismissal :
Under the employment law of some states, judges will consider a
situation where there has been a fundamental violation of the rights of
an employee, by the employer, so severe that the employee would have the
right to consider himself as dismissed, even though, in fact, there has
been no act of dismissal on the part of the employer. For example, if an
employer tries to force an employee to accept a drastic demotion, the
employee might have a case for constructive dismissal and would be able
to assume that the employment contract has been ended and seek
compensation from a court.
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Constructive trust :
A trust which a court declares or imposes onto participants of very
specific circumstances such as those giving rise to an action for unjust
enrichment, and notwithstanding the lack of any willing settlor to
declare the trust (contrast with express trusts and resulting trusts).
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Contempt of court :
A act of defiance of court authority or dignity. Contempt of court
can be direct (swearing at a judge or violence against a court officer)
or constructive (disobeying a court order). The punishment for contempt
is a fine or a brief stay in jail (i.e. overnight).
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Contingency fee :
A method of payment of legal fees represented by a percentage of an
award. Lawyers get paid in one of two ways: either you pay a straight
hourly rate as you might pay a plumber (eg. $400 an hour) or the lawyer
might "gamble" (i.e. "contingency" fee) and agree to only get paid if
the claim is successful and by taking a portion (eg. one-third) of any
award that comes after the filing of the claim. For example, if you go
and see a lawyer because, after a medical emergency, your health
insurance company refuses to pay your medical bills in violation of
their policy, the law firm might say: "no money down. In fact, we don't
get paid a cent unless you do. And then, we take one-third off the top
of any award you might get." This allows the client to receive legal
services without putting any money down and it allows the lawyer to
advertise "we don't get paid unless you do." The lawyer associations in
some counties prohibit contingency fee arrangements. In those countries
that allow them, they are very prevalent in personal injury cases.
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Contract :
An agreement between persons which obliges each party to do or not
to do a certain thing. Technically, a valid contract requires an offer
and an acceptance of that offer, and, in common law countries,
consideration. Contract law That body of law which regulates the
enforcement of contracts.
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Contract law :
has its origins thousands of years as the early civilizations began
to trade with each other, a legal system was created to support and to
facilitate that trade. The English and French developed similar contract
law systems, both referring extensively to old Roman contract law
principles such as consensus ad idem or caveat emptor. There are some
minor differences on points of detail such as the English law
requirement that every contract contain consideration. More and more
states are changing their laws to eliminate consideration as a
prerequisite to a valid contract thus contributing to the uniformity of
law. Contract law is the basis of all commercial dealings from buying a
bus ticket to trading on the stock market.
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Contributory negligence :
The negligence of a person which, while not being the primary cause
of a tort, nevertheless combined with the act or omission of the primary
defendant to cause the tort, and without which the tort would not have
occurred.
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Conversion :
The action of conversion is a common law legal proceeding for
damages by an owner of property against a defendant who came across the
property and who, rather than return the property, converted that
property to his own use or retained possession of the property or
otherwise interfered with the property. The innocence of the defendant
who took the property is not an issue. It is the conversion that gives
rise to the cause of action. This common law action replaced the old
action of trover by English law dated 1852. Compare with detinue.
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Conveyance :
A written document which transfers property from one person to
another. In real-estate law, the conveyance usually refers to the actual
document which transfers ownership, between persons living (i.e. other
than by will), or which charges the land with another's interest, such
as a mortgage.
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Conviction :
The formal decision of a criminal trial which finds the accused
guilty. It is the finding of a judge or jury, on behalf of the state,
that a person has, beyond reasonable doubt, committed the crime for
which he, or she, has been accused. It is the ultimate goal of the
prosecution and the result resisted by the defense. Once convicted, an
accused may then be sentenced.
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Coparcenary :
An obsolete co-ownership mechanism of English law where property, if
there was no will, always went to the eldest son. If there was no male
heir, the property went to all the female children collectively as a
form of co-ownership.
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Copyright :
The exclusive right to produce or reproduce (copy), to perform in
public or to publish an original literary or artistic work. Many
countries have expanded the definition of a "literary work" to include
computer programs or other electronically stored information.
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Coroner :
A public official who holds an inquiry into violent or suspicious
deaths. A coroner has the power to summon people to the inquest.
COPYRIGHT: A person's right to prevent others from copying works that he or she has written, authored or otherwise created.
CORPORATION: An independent entity created to conduct a business. It is owned by shareholders.
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Corporal punishment :
A punishment for some violation of conduct which involves the
infliction of pain on, or harm to the body. A fine or imprisonment is
not considered to be corporal punishment (in the latter case, although
the body is confined, no punishment is inflicted upon the body). The
death penalty is the most drastic form of corporal punishment and is
also called capital punishment. Some schools still use a strap to punish
students. Some countries still punish habitual thieves by cutting off a
hand. These are forms of corporal punishment, as is any form of
spanking, whipping or bodily mutilation inflicted as punishment.
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Corporate secretary :
Officer of a corporation responsible for the official documents of
the corporation such as the official seal, records of shares issued, and
minutes of all board or committee meetings.
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Corporation :
A legal entity, allowed by legislation, which permits a group of
people, as shareholders (for-profit companies) or members (non-profit
companies), to create an organization, which can then focus on pursuing
set objectives, and empowered with legal rights which are usually only
reserved for individuals, such as to sue and be sued, own property, hire
employees or loan and borrow money. Also known as a "company." The
primary advantage of for profit corporations is that it provides its
shareholders with a right to participate in the profits (by dividends)
without any personal liability because the company absorbs the entire
liability of the organization.
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Costs :
This is a term often used in judgments as in "the defendant will pay
costs." When a person is condemned to "costs" it means that he has to
pay all the court costs such as the fees for bringing the action,
witness fees and other fees paid out by the other side in bringing the
action to justice. A court can also condemn a losing party to "special
costs" but this is considered punitive as it would include the other
side's lawyer bill. The rule in most places is that "costs follows the
event" which means that the loser pays. In most states, the court has
the final say on costs and may decide not to make an order on costs.
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Council :
A formal group of experts brought together on a regular basis to
debate matters within that sphere of expertise, and with advisory powers
to government. For example, Canada has a 'Standards Council of Canada"
which debates and proposes standards policies and is able to make
recomendations to the government of Canada. It can be contrasted with a
commission which, although also a body of experts, is typically given
regulatory powers in addition to a role as advisor to the government.
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Counterfeit
to imitate with intent to deceive, to make a fraudulent replica of,
1 : to try to deceive by pretense or dissembling 2 : to
engage in counterfeiting something of value.
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Court martial :
A military court set up to try and punish offenses taken by members
of the army, navy or air force.
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Court of admiralty :
A rather archaic term used to denote the court which has the right
to hear shipping, ocean and sea legal cases. Also known as "maritime
law".
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Covenant :
A written document in which signatories either commit themselves to
do a certain thing, to not do a certain thing or in which they agree on
a certain set of facts. They are very common in real property dealings
and are used to restrict land use such as amongst shopping mall tenants
or for the purpose of preserving heritage property.
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Creditor :
A person to whom money, goods or services are owed by the debtor.
A person (or institution) to whom money is owed.
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Crime :
An act or omission which is prohibited by criminal law. Each state
sets out a limited series of acts (crimes) which are prohibited and
punishes the commission of these acts by a fine, imprisonment or some
other form of punishment. In exceptional cases, an omission to act can
constitute a crime, such as failing to give assistance to a person in
peril or failing to report a case of child abuse.
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Criminal conversation :
Synonymous with adultery. In old English law, this was a claim for
damages the husband could institute against the adulterer.
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Criminal law :
That body of the law that deals with conduct considered so harmful
to society as a whole that it is prohibited by statute, prosecuted and
punished by the government.
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Cross-examination :
In trials, each party calls witnesses. Each party may also question
the other's witness(es). When you ask questions of the other party's
witness(es), it is called a "cross-examination" and you are allowed
considerably more latitude in cross-examination then when you question
your own witnesses (called an "examination-in-chief"). For example, you
are not allowed to ask leading questions to your own witness whereas you
can in cross-examination. The questioning of an opposing party's witness
about matters brought up during direct examination.
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Crown :
The word refers specifically to the British Monarch, where she is
the head of state of Commonwealth countries. Prosecutions and civil
cases taken (or defended) by the government are taken in the name of the
Crown as head of state. That is why public prosecutors are referred to,
in Canada, as "Crown" prosecutors and criminal cases take the form of
"The Crown vs. John Doe" or "Regina vs. John Doe", Regina being Latin
for "The Queen."
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Cuius est
solum, ejus est usque ad caelum et ad inferos :
Latin: who owns the land, owns down to the center of the earth and
up to the heavens. This principle of land ownership has been greatly
tempered by case law which has limited ownership upwards to the extent
necessary to maintain structures. Otherwise, airplanes would trespass
incessantly.
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Culpa lata :
Latin for gross negligence. It is more than just simple negligence
and includes any action or an omission in reckless disregard of the
consequences to the safety or property of another.
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Curtilage:
The yard surrounding a residence or dwelling house which is reserved
for or used by the occupants for their enjoyment or work. Curtilage may
or may not be inclosed by fencing and includes any outhouses such as
stand-alone garages or workshops. It is a term one might come across in
a search warrant which calls for a search of the residence its'
curtilage of a particular person.
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Custody :
Means the charge and control of a child including the right to make
all major decisions such as education, religious upbringing, training,
health and welfare. Custody, without qualification usually refers to a
combination of physical custody and legal custody. For other varieties
of custody, see joint custody, split custody and divided custody.
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Cy-près :
"As near as may be": a technical word used in the law of trusts or
of wills to refer to a power that the courts have to, rather than void
the document, to construct or interpret the will or a trust document "as
near as may be" to the actual intentions of the signatory, where a
literal construction would give the document illegal, impracticable or
impossible effect.
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