Judicial precedent generated as
a by&-product of the decisions which courts have made in resolving unique
disputes, as distinguished from statutes and constitutions. Case law concerns
concrete facts. Statutes and constitutions are written in the abstract.
A generic phase denoting bona
fide disputes or lawsuits in which something is decided either affirmatively or
negatively. Controversy is usually descriptive of civil proceedings and cases
usually include both criminal prosecutions and civil proceedings. Article III
of the United States Constitution uses the terms, cases and controversies, to
define the judicial power of the United States. (2) The difference between an
abstract question and a case or controversy is one of degree and is not
discernible by any precise test. The basic inquiry is whether the conflicting
contentions of the parties present a real, substantial controversy between
parties having adverse legal interests, a dispute definite and concrete, not
hypothetical or abstract.
A flexible tern, the definition
of which is occasionally controversial. (1) An aggregation of facts which will
cause a court to grant relief, and therefore entitles a person to initiate and
prosecute a lawsuit. (2) The concurrence of a right belonging to a plaintiff,
and a wrong committed by a defendant, which breaches the right and results in damage.
Under modern rules of civil procedure, the term has been partly superseded by
claim for relief.
Lat., "to be more fully
informed," an original writ or action whereby a cause is removed from an
inferior to a superior court for review. The record of the proceedings is then
transmitted to the superior court. (2) A discretionary appellate jurisdiction
that is invoked by a petition for certiorari, which the appellate court may
grant or deny in its discretion. A dominant avenue to the United States Supreme
Court. 28 U.S.C. ss ss 1257(3), 2103.
A lawsuit which has for its
object the protection of private or civil rights or compensation for their
infraction.
The law compiled by the Roman
jurists under the auspices of the Emperor Justinian, which is still in force in
many of the nations in Europe.
An act to supplement earlier
laws, including the Sherman Act, against unlawful restraints and monopolies. 15
U.S.C. ss 12 et seq., 18 U.S.C. ssss 402 et seq., 29 U.S.C. ssss 52, 53; 38
Stat, 730 (1914).
A secret agreement between
persons apparently hostile, to do some act in order to defraud or prejudice a
third person, or for some improper purpose.
The practice by which One court
follows the decisions of another court on a like question, though not bound by
the law of precedents to do so.
An ambiguous term. (1) A system
of jurisprudence founded on principles of justice which are determined by
reasoning and administration consistent with the usage, customs and
institutions of the people and which are suitable to the genius of the people
and their social, political and economic condition. The rules deduced from this
system continually change and expand with the progress of society. (2) That
system of law which does not rest for its authority upon any express statues,
but derives its force and authority from universal consent and immemorial
usage, and which is evidenced by the decisions of the courts of law,
technically so called, in contra&-distinction to those of equity and the
ecclesiastical courts.
Such as measure the actual loss;
not exemplary or punitive.
The charge made before a proper officer
that an offense has been committed by a person named or described. (2) Under
modern rules of civil procedure a leading which must be filed to commence an
action.
A qualification, restriction, or
limitation, which suspends or delays the vesting or enlargement of an estate in
property, or a right until a specified event has occurred. This terminology is
not used in the Restatement (Second) of Contracts.
A condition which, if not
performed, defeats or diverts a right
or estate existing or vested; this terminology is not used in. the restatement
(Second) of Contracts.
The variance between the laws of
two states or countries relating to the subject matter of a suit brought in one
of them, when the parities to the suit, or some of them, or the subject matter,
belong to the other. See also lex loci.
The meeting of minds. It presupposes
mental capacity to act. It may be express, i.e., by word of mouth or in
writing, or implied from acts, inaction, or silence which are consistent only
with assent. If obtained by fraud or duress, it is not binding.
The price, motive or matter of
inducement of a contract, which must be lawful in itself. The term is flexible
and includes that which is bargained for and paid in return for a promise, the
benefits to the party making the promise and the loss or detriment to the party
to whom the promise is made. A contact derives its binding force from the
existence of a valuable consideration between the parties. Consideration may be
executed, i.e., past or performed; executory, i.e., to be performed or
continuing, i.e., partly both. Good or meritorious consideration is that
originating in relationship and natural affection. Valuable consideration is
that which has a money value A performance or a return promise which is
bargained for. Restatement (Second) of Contracts ss 71(1).
The fundamental and basic law of
a state or nation which establishes the form and limitation of government and
secures the rights of the citizens. The constitution of the United States was
adopted in a convention of representatives of the people, at Philadelphia,
September 17, 1787, and became the law of land on the first Wednesday in March,
1789. Each of the states composing the United States has a constitution of its
own. Constitutions usually prescribe the manner in which they may be amended.
A willful disregard or
disobedience of public authority. Courts may punish one who disobeys the rules,
orders or process, or willfully offends against the dignity and good order of
the court, by fine or imprisonment. Similar authority is exercised by each
house of the Congress of the United States, by state legislatures and in some
instances by administrative agencies. The contempt power is usually subject to
judicial review.
An agreement between competent
parties, upon a legal consideration, to do or to abstain from doing some act.
It is usually applied to simple or parol contracts, including written as well
as verbal ones. Contracts may be express, in which the terms are stated in
words; or implied, i.e., presumed by law to have been made from the
circumstances and the relations of the parties; mutual and dependent, in which
the performance by one is dependent upon the performance by the other,
independent, when either promise may be performed without reference to the
other; entire, in which the complete performance by one is a condition
precedent to demanding performance of the other; severable, in which the things
to be performed are capable of separation, so that on performance of part the
party performing may demand a proportionate part of the consideration from the
other; executed, in which the things each agrees to perform are done at the
time the contract is made; executory, in which some act remains to be done by
one or both of the parties; persona(, i.e., depending on the skill or qualities
of one of the parties; contracts of beneficence, by which only one of the
contracting parties is to be benefitted, e.g., loans and deposits. (2) The
total legal obligation which results from the parties' agreement as affected by
the U.C.C. and any other applicable rules of law. U.C.C. ss 1&-201(11).
(3) A promise or a set of promises for the breach of which the law gives a
remedy, or the performance of which the law in some way recognizes as a duty.
Restatement (Second) of Contracts ss 1.
The failure to exercise care by
a plaintiff, which contributed to the plaintiffs injury. Even though a
defendant may have been negligent, in the majority of jurisdictions,
contributory negligence will bar a recovery by the plaintiff. (2) Conduct on
the part of a plaintiff which falls below the standard to which he should
conform for his own protection, and which is a legally contributing cause
cooperating with the negligence of the defendant in bringing about the plantiff's
harm. Restatement (Second) of Torts @ 463.
A flexible term. (1) The
wrongful appropriation of goods of another. (2) An intentional exercise of
dominion or control over a chattel which so seriously interferes with the right
of another to control it that the actor may justly be required to pay the other
the full value of the chattel. Restatement (Second) of Torts ss 22A(I).
The defendants claim against the
plaintiff, which most courts permit him to set up in his response to the
complaint.
An institution for the resolving
of disputes. (2) A place where justice is administered. (3) The judge or judges
when performing their official duties. Courts may be classified as courts of
record, those in which a final record of the proceedings is made, which imports
verity and cannot be collaterally impeached, and courts not of record, in which
no final record is made, though it may keep a docket and enter in it notes of
the various proceedings; courts of original jurisdiction, in which suits are
initiated and which have power to hear and determine in the first instance, and
appellate courts, which take cognizance of causes removed from other courts;
courts of equity or chancery, which administer justice according to the principles
of equity; and courts of law, which administer justice according to the
principles of the common law; civil courts which give remedies for private
wrongs; criminal courts, in which public offenders are tried, acquitted or
convicted and sentenced; ecclesiastical courts, which formerly had jurisdiction
over testamentary and matrimonial causes; courts of admiralty, which have
jurisdiction over maritime causes, civil and criminal; courts&-martial,
which have jurisdiction of offenses against the military or navel laws,
committed by persons in that service. In numerous instances, the various
classifications of courts have been consolidated. The same court may serve as a
court of equity, a court of law, a civil court, a criminal court and a court of
admiralty. It may qualify as a court of record and be a court of original
jurisdiction.
An agreement or unilateral
contract such as is contained in a dead. See also Contract. The principal
covenants in a deed conveying land are seisin, right to convey, for quiet
enjoyment, against encumbrances, and for further assurances. A covenant is said
to run with the land (or the reversion) when the benefit or burden of it passes
to the assignee of the land. (2) Formerly one of the forms of action.
Jurisprudence concerning crimes
and their punishment.
The questioning of a witness by
the party opposed to the partly which called the witness for direct
examination. This usually occurs after the direct examination but on occasion
may be otherwise allowed. The form of the questions on cross&-examination
is designed for the purpose of eliciting evidence from a hostile witness. (2)
Cross&-examination should be limited to the subject matter of the direct
examination and matters affecting the credibility of the witness. the court
may, in the exercise of discretion, permit inquiry into additional matters as
if on direct examination. Fed. R. Evid. 611(b).
