COVENANT (Canon - Law) Flashcards
δῐᾰθήκη
COVENANT - WILL
δῐᾰθήκη • (diathḗkē) f (genitive δῐᾰθήκης); first declension
Noun
testament, will (legal document)
covenant.
συγγρᾰφοδῐᾰθήκη
CONTRACT
συγγρᾰφοδῐᾰθήκη • (sungraphodiathḗkē) f (genitive συγγρᾰφοδῐᾰθήκης); first declension
Noun
A contract with marriage settlement.
From συγγραφή (“writing down”) + διαθήκη ( “contract”).
συγγραφή • (sungraphḗ) f (genitive συγγραφῆς); first declension Non writing or noting down writing, book, especially in prose mark in the eye. From συγγράφω + -η -η (forms action nouns from verbs)
Lex loci delicti commissi
The lex loci delicti commissi is the Latin term for “law of the place where the delict [tort] was committed”[1] in the conflict of laws.
Choice of Law
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states (as in the US), or provinces. The outcome of this process is potentially to require the courts of one jurisdiction to apply the law of a different jurisdiction in lawsuits arising from, say, family law, tort or contract. The law which is applied is sometimes referred to as the “proper law.”
Forum non conveniens
Forum non conveniens (Latin for “forum not agreeing”) (FNC) is a (mostly) common law legal doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties. As a doctrine of the conflict of laws, forum non conveniens applies between courts in different countries and between courts in different jurisdictions in the same country. Forum non conveniens is not applicable between counties or federal districts within a state.
Comity
In law, comity is “a practice among different political entities (as countries, states, or courts of different jurisdictions)” involving the “mutual recognition of legislative, executive, and judicial acts.”
Comity derives from the Latin comitas, courtesy, from cemis, friendly, courteous.
The doctrine of international comity has been described variously “as a choice-of-law principle, a synonym for private international law, a rule of public international law, a moral obligation, expediency, courtesy, reciprocity, utility, or diplomacy. Authorities disagree as to whether comity is a rule of natural law, custom, treaty, or domestic law. Indeed, there is not even agreement that comity is a rule of law at all.”[3] Because the doctrine touches on many different principles, it is regarded as “one of the more confusing doctrines evoked in cases touching upon the interests of foreign states.”[4]
Conflict of Laws
Conflict of laws concerns relations across different legal jurisdictions between natural persons, companies, corporations and other legal entities, their legal obligations and the appropriate forum and procedure for resolving disputes between them. Conflict of laws especially affects private international law,[1][2][3] but may also affect domestic legal disputes e.g. determination of which state law applies in the United States, or where a contract makes incompatible reference to more than one legal framework.
the court will apply the law of the forum (lex fori) to all procedural matters (including the choice of law rules); and
it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or the law of habitual residence (lex domicilii). (See also ‘European Harmonization Provisions’: “The concept of habitual residence is the civil law equivalent of the common law test of lex domicilii”.) The court will determine the plaintiffs’ legal status and capacity. The court will determine the law of the state in which land is situated (lex situs) that will be applied to determine all questions of title. The law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice.[4]
Nationality
Nationality is a legal relationship between an individual person and a state.[1] Nationality affords the state jurisdiction over the person and affords the person the protection of the state. What these rights and duties are varies from state to state.[2]
By custom and international conventions, it is the right of each state to determine who its nationals are.[3] Such determinations are part of nationality law. In some cases, determinations of nationality are also governed by public international law—for example, by treaties on statelessness and the European Convention on Nationality.
Citizenship
Citizenship is the status of a person recognized under the custom or law as being a legal member of a sovereign state or belonging to a nation.
A person may have multiple citizenships. A person who does not have citizenship of any state is said to be stateless, while one who lives on state borders whose territorial status is uncertain is a border-lander.[1]
Nationality is often used as a synonym for citizenship in English[2] – notably in international law – although the term is sometimes understood as denoting a person’s membership of a nation (a large ethnic group).[3] In some countries, e.g. the United States, the United Kingdom, nationality and citizenship can have different meanings (for more information, see Nationality versus citizenship).
Jus sanguinis (Latin: right of blood)
Jus sanguinis (Latin: right of blood) is a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state. Children at birth may automatically be citizens if their parents have state citizenship or national identities of ethnic, cultural, or other origins.[1] Citizenship can also apply to children whose parents belong to a diaspora and were not themselves citizens of the state conferring citizenship.[citation needed] This principle contrasts with jus soli (Latin: right of soil).[2]
Jus soli (right of the soil)
Jus soli (English: /dʒʌs ˈsoʊlaɪ/; Latin pronunciation: [juːs ˈsɔ.liː]), meaning “right of the soil”,[1] commonly referred to as birthright citizenship in the United States, is the right of anyone born in the territory of a state to nationality or citizenship.[2]
diaspora
A diaspora (/daɪˈæspərə/)[1] is a scattered population whose origin lies in a separate geographic locale.[2][3] In particular, diaspora has come to refer to involuntary mass dispersions of a population from its indigenous territories, most notably the expulsion of Jews from the Land of Israel (known as the Jewish diaspora) and the fleeing of Greeks after the fall of Constantinople.
Set-Off
In law, set-off or netting are legal techniques applied between persons with mutual rights and liabilities, replacing gross positions with net positions.[1][2] It permits the rights to be used to discharge the liabilities where cross claims exist between a plaintiff and a respondent. The result being that the gross claims of mutual debt produces a single, net claim.[3] The net claim is known as a net position. In other words, a set-off is the right of a debtor to balance mutual debts with a creditor. In bookkeeping terms, set-offs are also known as reconciliations.[citation needed] To determine a set-off, simply subtract the smaller debt from the larger.
Any balance remaining due either of the parties is still owed, but the remainder of the mutual debts has been set off. The power of net positions is to reduce credit exposure, also holding regulatory capital requirement and settlement advantages, which contributes to market stability. In regard to the financial market, net positions are vital.[4]
Sui Juris
In civil law, the phrase sui juris indicates legal competence — the capacity to manage one’s own affairs
In Personam
In personam is a Latin phrase meaning “directed toward a particular person”. In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint to give the court jurisdiction to try the case, and the judgment applies to that person and is called an “in personam judgment”.
In personam is distinguished from in rem, which applies to property or “all the world” instead of a specific person. This technical distinction is important to determine where to file a lawsuit and how to serve a defendant. In personam means that a judgment can be enforceable against the person wherever he/she is. On the other hand, if the lawsuit is to determine title to property (in rem) then the action must be filed where the property exists and is only enforceable there.[1]
In Rem Jurisdiction
In rem jurisdiction
(“power about or against ‘the thing’”
is a legal term describing the power a court may exercise over property (either real or personal) or a “status” against a person over whom the court does not have in personam jurisdiction.
Jurisdiction in rem assumes the property or status is the primary object of the action, rather than personal liabilities not necessarily associated with the property.
Within the U.S. federal court system, jurisdiction in rem typically refers to the power a federal court may exercise over large items of immoveable property, or real property, located within the court’s jurisdiction.
The most frequent circumstance in which this occurs in the Anglo-American legal system is when a suit is brought in admiralty law against a vessel to satisfy debts arising from the operation or use of that vessel.
Within the American state court systems, jurisdiction in rem may refer to the power the state court may exercise over real property or personal property or a person’s marital status.
State courts have the power to determine legal ownership of any real or personal property within the state’s boundaries.
A “right in rem” or a “judgment in rem”
(binds the world) as opposed to rights and judgments inter partes which only bind those involved in their creation.
Inter-Partes
The term inter partes is the Latin for “between the parties”.
It can be distinguished from in rem, referring to a legal action whose jurisdiction is based on
(the control of property), or…
(ex parte) referring to a legal action that is by a single party.
Ex-Parte
Ex parte /ˌɛks ˈpɑːrtiː/ is a Latin legal term meaning “from (by or for) [the/a] party.”
From the party.
By the party.
For the party.
An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present.
Ex Parte means…
a legal proceeding brought by one person
in the (absence) of and (without representation)
or (notification) of other parties.
It is also used more loosely to refer to
(improper unilateral contacts)
with a court, arbitrator, or represented party
“without notice” to the other party or counsel for that party.
Writ
ORDER
The complainant simply applied to the court for the writ most relevant to his complaint to be sent to the wrongdoer, which ordered him under royal authority to attend a royal court to answer for his actions.
The development was part of the establishment of a Court of Common Pleas, for dealing with commonly made complaints by subjects of the crown, for example: “someone has damaged my property”.
The obtaining of a writ became necessary, in most cases, to have a case heard in one of the Royal Courts, such as the King’s Bench or Common Pleas.
Some franchise courts, especially in the Counties Palatine, had their own system of writs which often reflected or anticipated the common law writs.
The writ was “served” on (delivered in person to) the wrongdoer and acted as a command that he should appear at a specified time and date before the court specified in the writ, or it might command some other act on the part of the recipient.
In common law, a writ…
Anglo-Saxon gewrit,
Latin breve,
is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court.
Warrants, prerogative writs, and subpoenas are common types of writ, but many forms exist and have existed.
The writ was a unique development of the Anglo-Saxon monarchy, and consisted of a brief administrative order, authenticated (innovatively) by a seal.
Written in the vernacular, they generally made a land grant, or conveyed instructions to a local court.
In the beginning, writs were the document issued by the King’s Chancellor against a landowner whose vassal complained to the King about an injustice, after a first summon by the sheriff to comply had been deemed fruitless.
William the Conqueror took over the system unchanged, but was to extend it in two ways:
1st. .. writs became mainly framed in Latin, not Anglo-Saxon;
2nd. .. they covered an increasing range of royal commands and decisions.
Writs of instruction continued to develop under his immediate successors, but it was not until Henry the Second that writs became available for purchase by private individuals seeking justice, thus initiating a vast expansion in their role within the common law.
Writs could take two main forms,
- ‘open’ (patent) for all to read, and
- ‘letters close’ for one or more specified individuals alone.
Possessory Interest
possessory interest, a temporary, qualified property in the things of which the mere possession is delivered to a person.
Conservatorship
Conservatorship is a legal concept in the United States. A guardian or a protector is appointed by a judge to manage the financial affairs and/or daily life of another due to physical or mental limitations, or old age.
A person under conservatorship is a “conservatee,” a term that can refer to an adult.
A person under guardianship is a “ward,” a term that can also refer to a minor child.
The conservator may be only of the “estate” (financial affairs), but may be also of the “person,” wherein the conservator takes charge of overseeing the daily activities, such as health care or living arrangements of the conservatee. A conservator of the person is more typically called a legal guardian.
Crown Ward
Foster children in Canada are known as permanent wards, (crown wards in Ontario).
A ward is someone, in this case a child, placed under protection of a legal guardian and are the legal responsibility of the government.
In Loco Parentis
The term in loco parentis, Latin for “in the place of a parent” refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent.
Parens Patriea
Parens patriae is Latin for “parent of the nation” (lit., “parent of the fatherland”).
In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child or individual who is in need of protection.
For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, thus requiring state intervention.
Non Compos Mentis
The Latin non compos mentis translates as…
“of unsound mind”:
nōn (“not”) prefaces compos mentis, meaning “having control of one’s mind”.
This phrase was first used in thirteenth-century English law.
NECROMANCY
Spirit possession is a term for the belief that animas, aliens, demons, gods, or spirits can take control of a human body. The concept of spirit possession exists in many religions, including Christianity, Buddhism, Haitian Vodou, Wicca, Hinduism, Islam and Southeast Asian and African traditions.
The Egyptians believed that when the spirit of an animal is separated from its body by violence, it does not go to a distance, but remains near it.
It is the same with the soul of a man who has died a violent death; it remains near the body—nothing can make it go away; it is retained there by sympathy; several have been seen sighing near their bodies which were interred.
The magicians abuse their power over such in their incantations; they force them to obey, when they are masters of the dead body, or even part of it.
Frequent experience taught them that there is a secret virtue in the body, which draws towards it the spirit which has once inhabited it; wherefore those who wish to receive or become the receptacles of the spirits of such animals as know the future, eat the principle parts of them, as the hearts of crows, moles, or hawks.
The spirit of these creatures enters into them at the moment they eat this food, and makes them give out oracles like divinities..
Porphyry, when consulted by Anebo, an Egyptian priest, if those who foretell the future and perform prodigies have more powerful souls, or whether they receive power from some strange spirit, replies that, according to appearance, all these things are done by means of certain evil spirits that are naturally knavish, and take all sorts of shapes, and do everything that one sees happen, whether good or evil; but that in the end they never lead men to what is truly good.
Treatise on the Apparitions of Spirits and on Vampires or Revenants.
A revenant is a visible ghost or animated corpse that is believed to have revived from death to haunt the living.
The word revenant is derived from the Old French word, revenant, the “returning” (see also the related French verb revenir, meaning “to come back”).
Indemnity
Indemnity is a contractual obligation of one party (indemnifier) to compensate the loss occurred to the other party (indemnity holder) due to the act of the indemnitor or any other party. The duty to indemnify is usually, but not always, coextensive with the contractual duty to “hold harmless” or “save harmless”.
In contrast, a guarantee is an obligation of one party assuring the other party that guarantor will perform the promise of the third party if it defaults.
Guarantee
A formal pledge to pay another person’s debt or to perform another person’s obligation in the case of default.
A formal promise or assurance (typically in writing) that certain conditions will be fulfilled, especially that a product will be repaired or replaced if not of a specified quality and durability.
Provide a formal assurance or promise, especially that certain conditions shall be fulfilled relating to a product, service, or transaction.
Warrant
Law - A document issued by a legal or government official authorizing the police or some other body to make an arrest, search premises, or carry out some other action relating to the administration of justice.
A document that entitles the holder to receive goods, money, or services.
(synonyms) voucher, slip, ticket, coupon, pass
“a travel warrant”
Finance - a negotiable security allowing the holder to buy shares at a specified price at or before some future date.
Justification or authority for an action, belief, or feeling.
An official certificate of appointment issued to an officer of lower rank than a commissioned officer.
Justify or necessitate (a certain course of action).
Officially affirm or guarantee.
Middle English (in the senses ‘protector’ and ‘safeguard,’ also, as a verb, ‘keep safe from danger’): from variants of Old French guarant (noun), guarantir (verb), of Germanic origin; compare with guarantee.
synonyms: voucher, slip, ticket, coupon, pass "a travel warrant" (Synonym) authorization, order, license, permit, document; More writ, summons, subpoena; mandate, decree, fiat, edict.
Aver
State or assert to be the case.
“he averred that he was innocent of the allegations”
Allege as a fact in support of a plea.
Late Middle English (in the sense ‘declare or confirm to be true’):
from Old French averer,
Latin ad ‘to’ (implying ‘cause to be’) + verus ‘true.’
Warranty
This is what it says it is.
These promises are true and binding and the person holding the warranty will receive compensation in the event the promise is breached, the object does not accomplish what was promised or the performance is not delivered.
a written guarantee, issued to the purchaser of an article by its manufacturer, promising to repair or replace it if necessary within a specified period of time.
“the car comes with a three-year warranty”
synonyms: guarantee, assurance, promise, covenant, commitment, agreement
“a three-year warranty”
(in contract law) a promise that something in furtherance of the contract is guaranteed by one of the contractors, especially the seller’s promise that the thing being sold is as promised or represented.
(in an insurance contract) an engagement by the insured party that certain statements are true or that certain conditions shall be fulfilled, the breach of it invalidating the policy.
Assurance
A positive declaration intended to give confidence; a promise.
The assuring party is lawfully obligated to perform the terms of the agreement remedial and enforceable at law.
Confidence or certainty in one’s own abilities.
Certainty about something.
Underwrite
Sign and accept liability under (an insurance policy), thus guaranteeing payment in case loss or damage occurs.
Make payment for another who defaults, fails to perform, is unwilling to perform, or is unable to deliver on his pledge per an act of God or contingent disability.
Fund
A collection of valuable rights, titles, and property itemized, inventoried and evaluated as a whole, then capable of being sub-divided into units called shares, capable of being conjoined to one or more beneficial interest holders within a trust instrument.
Beneficial Owner
Beneficial owner is a legal term where specific property rights (“use and title”) in equity belong to a person even though legal title of the property belongs to another person.
This often relates where the legal title owner has implied trustee duties to the beneficial owner.
Real Party in Interest
In law, the real party in interest is the one who actually possesses the substantive right being asserted and has a legal right to enforce the claim (under applicable substantive law). Additionally, the “real party in interest” must sue in his own name. In many situations, the real party in interest will be the parties themselves (i.e., plaintiff and defendant).
Mandamus
Mandamus (/ˈmænˈdeɪməs/; lit. ’we command’) is a judicial remedy in the form of an order from a court[1] to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing), and which is in the nature of public duty, and in certain cases one of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision. For example, it cannot be used to force a lower court to reject or authorize applications that have been made, but if the court refuses to rule one way or the other then a mandamus can be used to order the court to rule on the applications.
Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights. In the American legal system it must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus. A person can be said to be aggrieved only when he or she is denied a legal right by someone who has a legal duty to do something and abstains from doing it.
Duty of Care
In tort law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals with no current direct relationship (familial or contractual or otherwise), but eventually become related in some manner, as defined by common law (meaning case law).
Duty of care may be considered a formalisation of the social contract, the implicit responsibilities held by individuals towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law.
Trustee
Trustee (or the holding of a trusteeship) is a legal term which, in its broadest sense, is a synonym for anyone in a position of trust and so can refer to any person who holds property, authority, or a position of trust or responsibility for the benefit of another. A trustee can also refer to a person who is allowed to do certain tasks but not able to gain income.[1] Although in the strictest sense of the term a trustee is the holder of property on behalf of a beneficiary,[1] the more expansive sense encompasses persons who serve, for example, on the board of trustees of an institution that operates for a charity, for the benefit of the general public, or a person in the local government.
A trust can be set up either to benefit particular persons, or for any charitable purposes (but not generally for non-charitable purposes): typical examples are a will trust for the testator’s children and family, a pension trust (to confer benefits on employees and their families) and a charitable trust. In all cases, the trustee may be a person or company, whether or not they are a prospective beneficiary.
Guardian Ad Litem
(especially of a guardian) appointed to act in a lawsuit on behalf of a child or other person who is not considered capable of representing themselves.
A “guardian ad litem” (GAL) is a person the court appoints to investigate what solutions would be in the “best interests of a child.” Here, we are talking about a GAL in a divorce or parental rights and responsibilities case. The GAL will look into the family situation and advise the court on things like:
where the children should live most of the time
whether the child is being harmed by a parent’s substance abuse
what contact the child should have with a parent
Liability
One who owes a duty, performance, delivery of goods or debt.
Responsible party.
One who is answerable in a lawsuit.
One who is able to be sued.
li·a·bil·i·ty
/ˌlīəˈbilədē/Submit
noun
1.
the state of being responsible for something, especially by law.
“the partners accept unlimited liability for any risks they undertake”
synonyms: accountability, responsibility, legal responsibility, answerability; More
2.
a person or thing whose presence or behavior is likely to cause embarrassment or put one at a disadvantage.
“he has become a political liability”
synonyms: hindrance, encumbrance, burden, handicap, nuisance, inconvenience.
Example of a liability clause.
FOURTEENTH, No Director or O icer of the Trust shall be held liable to the Trust or its Bene cial Owners or any related or associated parties for any claim of injury, or wrong, or demand for compensation, or any other monetary damages or sanction, except under the following circumstances:-
i. If any such act or omission by a Director or O icer of the Trust occurred during the normal execution of their duties, and did not involve clear evidence of bad faith, deliberate malice, intentional misconduct or a knowing violation of the law; or
ii. If any such act or omission by a Director or O icer involved a wilful of negligent violation of duciary duties in the approval of one or more signi cant unauthorised payments; or
iii. If any such act or omission by a Director or O icer involved deliberate per dy, or treachery against the Trust.
Transfer Agent
A transfer agent is a trust company, bank or similar financial institution assigned by a corporation to maintain records of investors and account balances. The transfer agent records transactions, cancels and issues certificates, processes investor mailings and deals with other investor problems (e.g., lost or stolen certificates). A transfer agent works closely with a registrar to ensure that investors receive interest payments and dividends when they are due and to send monthly investment statements to mutual fund shareholders.
BREAKING DOWN Transfer Agent
When an investor purchases a security, the new owner is issued some form of a certificate and most certificates are now issued in book-entry form. Rather than invest the time and expense to issue physical securities, book-entry securities record ownership electronically and a transfer agent issues and cancels these types of certificates.
Factoring in Ownership
Different investments issue book-entry securities in different forms. Bonds, for example, are issued at a face amount of $1,000 and in $1,000 multiples, while stocks are issued in shares. In addition, unit investment trusts are sold in units, and mutual funds are issued in shares, and the transfer agent processes all of these securities.
Chartered Accountant
Chartered accountants were the first accountants to form a professional accounting body, initially established in Scotland in 1854. The Edinburgh Society of Accountants (1854), the Glasgow Institute of Accountants and Actuaries (1854) and the Aberdeen Society of Accountants (1867) were each granted a royal charter almost from their inception.[1] The title is an internationally recognised professional designation; the certified public accountant designation is generally equivalent to it.
Chartered accountants work in all fields of business and finance, including auditing, taxation, financial and general management. Some are engaged in public practice work, others work in the private sector and some are employed by government bodies.[2][3][4]
Chartered accountants’ institutes require members to undertake a minimum level of continuing professional development to stay professionally competitive. They facilitate special interest groups (for instance, entertainment and media, or insolvency and restructuring) which lead in their fields. They provide support to members by offering advisory services, technical helplines and technical libraries. They also offer opportunities for professional networking, career and business development.[5]
Registrar
A registrar is an institution, often a bank or trust company, responsible for keeping records of bondholders and shareholders after an issuer offers securities to the public. When an issuer needs to make an interest payment on a bond or a dividend payment to shareholders, the firm refers to the list of registered owners maintained by the registrar.
BREAKING DOWN Registrar
One role of the registrar is to make sure the amount of shares outstanding does not exceed the number of shares authorized in a firm’s corporate charter. A corporation cannot issue more shares of stock than the maximum number of shares that the corporate charter discloses. Outstanding shares are those that shareholders currently hold. A business may continue to issue shares periodically over time, increasing the amount of outstanding shares. The registrar accounts for all issued and outstanding shares, as well as the number of shares owned by each individual shareholder.
How a Registrar Factors in Stock Dividends and Splits
The registrar determines which shareholders are paid a cash or stock dividend. A cash dividend is a payment of company earnings to each shareholder, and a stock dividend means additional shares are issued to each shareholder. To pay a dividend, the corporation sets a record date. The registrar verifies the shareholders who own the stock on the record date and the number of shares owned as of that date. Both cash and stock dividends are paid based on the registrar’s list of shareholders. The registrar changes this shareholder data based on current buy and sell transactions.
How a Bond Registrar Operates
For example, when an issuer offers a bond to investors, the company works with an underwriter to create a bond indenture. The indenture lists all of the pertinent information about the bond, including its face amount, the interest rate, and the maturity date. A bond indenture also certifies the bond is a legal obligation of the issuer. A bond may be secured by specific company assets or simply by the issuer’s ability to pay. Just as with stock, the bond registrar tracks the investors who own the bond and investors who should receive interest payments. When the bond matures, the registrar’s records determine which investors should be repaid the principal amount on the bond issue.
Examples of Other Registrars
Mutual funds operate using a transfer agent, which is a company that acts as the registrar and also performs the duties of a transfer agent. While the registrar keeps records, the transfer agent handles the mutual fund share purchases and redemptions.
Testator
a person who has made a will or given a legacy.
Middle English: from Anglo-Norman French testatour, from Latin testator, from the verb testari ‘testify.
A testator is a person who has written and executed a last will and testament that is in effect at the time of his/her death. It is any “person who makes a will.”
Settlor
A person who makes a settlement, especially of a property.
In law a settlor is a person who settles property on trust law for the benefit of beneficiaries. In some legal systems, a settlor is also referred to as a trustor, or occasionally, a grantor or donor. Where the trust is a testamentary trust, the settlor is usually referred to as the testator.
The settlor of a trust is the person who creates the trust. To do so, the settlor does two things. First, the settlor establishes the legal document that contains the trust’s terms. Second, the settlor then transfers property into the trust, which is also known as funding the trust.
Joinder
In law, a joinder is the joining of two or more legal issues together. Procedurally, a joinder allows multiple issues to be heard in one hearing or trial and is done when the issues or parties involved overlap sufficiently to make the process more efficient or more fair. It helps courts avoid hearing the same facts multiple times or seeing the same parties return to court separately for each of their legal disputes. The term is also used in the realm of contracts to describe the joining of new parties to an existing agreement.
Joinder of Claims
Joinder of claims refers to bringing several legal claims against the same party together. In U.S. federal law, joinder of claims is governed by Rule 18 of the Federal Rules of Civil Procedure. These rules allow claimants to consolidate all claims that they have against an individual who is already a party to the case. Claimants may bring new claims even if these new claims are not related to the claims already stated; for example, a plaintiff suing someone for breach of contract may also sue the same person for assault. The claims may be unrelated, but they may be joined if the plaintiff desires.[1]
Joinder of claims requires that the court have jurisdiction over the subject matter of each of the new claims, and that joinder of claims is never compulsory. A party who sues for breach of contract can bring his suit for assault at a later date if he chooses. However, if the claims are related to the same set of facts, the plaintiff may be barred from bringing claims later by the doctrine of res judicata, e.g. if a plaintiff sues for assault and the case is concluded, he may not later sue for battery regarding the same occurrence.
Joinder of Parties
Joinder of parties also falls into two categories: permissive joinder and compulsory joinder.
Federal Rule of Civil Procedure No. 20 addresses permissive joinder. Permissive joinder allows multiple plaintiffs to join in an action if each of their claims arise from the same transaction or occurrence, and if there is a common question of law or fact relating to all plaintiffs’ claims. For example, several landowners may join together in suing a factory for environmental runoff onto their property. Permissive joinder is also appropriate to join multiple defendants, as long as the same considerations as for joining multiple plaintiffs are met. This often occurs in lawsuits regarding faulty products; the plaintiff will sue the manufacturer of the final product and the manufacturers of any constituent parts. The court must have personal jurisdiction over every defendant joined in the action.[2]
Compulsory joinder is governed by Federal Rule of Civil Procedure 19, which makes it mandatory that some parties be joined. Parties that must be joined are those necessary and indispensable to the litigation. The rule includes several reasons why this might be true, including if that party has an interest in the dispute that they will be unable to protect if they are not joined. For example, if three parties each lay claim to a piece of property and the first two sue each other, the third will not be able to protect his (alleged) interest in the property if he is not joined. Another circumstance is when a party might end up with inconsistent obligations, for example he may be required by two different courts to grant two different parties exclusive rights to the same piece of property. This is avoided by joining the parties in one lawsuit. However, while “necessary” parties must be joined if that joinder is possible, the litigation will continue without them if joinder is impossible, for example, if the court does not have jurisdiction over the party. By contrast, if “indispensable” parties cannot be joined, the litigation cannot go forward. Courts have some discretion in determining what parties are indispensable, though the Federal Rules provide some guidelines.[3]
Res Judicata
MATTER ALREADY JUDGED (Can’t sue twice)
Issue preclusion bars the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier case.
Res judicata (RJ) or res iudicata, also known as claim preclusion, is the Latin term for “a matter [already] judged”, and refers to either of two concepts: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) continued litigation of a case on same issues between the same parties. In this latter usage, the term is synonymous with “issue preclusion”.
In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter.[1]
The doctrine of res judicata is a method of preventing injustice to the parties of a case supposedly finished, but perhaps also or mostly a way of avoiding unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, and confusion.
For res judicata to be binding, several factors must be met:
identity in the thing at suit;
identity of the cause at suit;
identity of the parties to the action;
identity in the designation of the parties involved;
whether the judgment was final;
whether the parties were given full and fair opportunity to be heard on the issue.
Federal courts have traditionally adhered to the related doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion). Under RJ, a final judgment on the merits of an action precludes the parties . . . from re-litigating issues that were or could have been raised in that action. Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude re-litigation of the issue in a suit on a different cause of action involving a party to the first cause. As this court and other courts have often recognised, res judicata and collateral estoppel relieve parties of the costs and vexation of multiple lawsuits, conserve judicial resources, and by preventing inconsistent decisions, encourage reliance on adjudication.[6]
Scire facias
WRIT (Make the record known to the party)
In English law, a writ of scire facias (Latin, meaning literally “make known”) was a writ founded upon some judicial record directing the sheriff to make the record known to a specified party, and requiring the defendant to show cause why the party bringing the writ should not be able to cite that record in his own interest, or why, in the case of letters patent and grants, the patent or grant should not be annulled and vacated. In the United States, the writ has been abolished under federal law but may still be available in some state legal systems.
Jurisdiction
Jurisdiction (from the Latin ius, iuris meaning “law” and dicere meaning “to speak”) is the practical authority granted to a legal body to administer justice within a defined field of responsibility, e.g., Michigan tax law. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels; e.g. the court has jurisdiction to apply federal law.
Colloquially it is used to refer to the geographical area to which such authority applies, e.g. the court has jurisdiction over all of Colorado. The legal term refers only to the granted authority, not to a geographical area.
Jurisdiction draws its substance from international law, conflict of laws, constitutional law, and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of society.
De Jure
In law and government, de jure (/deɪ ˈdʒʊəri, di-/; Latin: de iure, lit. ‘in law’ Latin pronunciation: [deː juːre]) describes practices that are legally recognised, whether or not the practice exist in reality.[1] In contrast, de facto (“in fact” or “in practice”) describes situations that exist in reality, even if not legally recognised.[2] The terms are often used to contrast different scenarios: for a colloquial example, “I know that, de jure, this is supposed to be a parking lot, but now that the flood has left four feet of water here, it’s a de facto swimming pool”.[3] To further explain, even if the signs around the flooded parking lot say “Parking Lot” (the signs effectively being the “law” determining what it is) it is “in fact” a swimming pool (with the water, the current practical circumstances, determining what it is).
De Facto
In law and government, de facto (/deɪ ˈfæktoʊ/ or /di ˈfæktoʊ/;[1] Latin: de facto, “in fact”; Latin pronunciation: [deː ˈfaktoː]) describes practices that exist in reality, even if not legally recognised by official laws.[2][3][4] It is commonly used to refer to what happens in practice, in contrast with de jure (“in law”), which refers to things that happen according to law. Unofficial customs that are widely accepted are sometimes called de facto standards.
Legal Process
Legal process (sometimes simply process) is any formal notice or writ by a court obtains jurisdiction over a person or property.[1] Common forms of process include a summons, subpoena, mandate, and warrant.[2] Process normally takes effect by serving in on a person, arresting a person, posting it on real property, or seizing personal property.
Civil Procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what kind of service of process (if any) is required; the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases; the timing and manner of depositions and discovery or disclosure; the conduct of trials; the process for judgment; various available remedies; and how the courts and clerks must function.
Criminal Procedure
Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or incarcerated, and results in the conviction or acquittal of the defendant. Criminal procedure can be either in form of inquisitorial or adversarial criminal procedure.
Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the defendant is guilty beyond any reasonable doubt, as opposed to having the defense prove that s/he is innocent, and any doubt is resolved in favor of the defendant. This provision, known as the presumption of innocence, is required, for example, in the 46 countries that are members of the Council of Europe, under Article 6 of the European Convention on Human Rights, and it is included in other human rights documents.
Such basic rights also include the right for the defendant to know what offence he or she has been arrested for or is being charged with, and the right to appear before a judicial official within a certain time of being arrested. Many jurisdictions also allow the defendant the right to legal counsel and provide any defendant who cannot afford their own lawyer with a lawyer paid for at the public expense.
Injured Party
the victim of a crime (known as the “injured party”) may be awarded damages by a criminal court judge.
Law Suit
A lawsuit (or suit in law[a]) is a proceeding by a party or parties against another in the civil court of law.[1]
Sometimes, the term “lawsuit” is in reference to a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant’s actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff’s complaint. If the plaintiff is successful, judgment is in the plaintiff’s favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.
Crime
In ordinary language, a crime is an unlawful act punishable by a state or other authority.[1] The term “crime” does not, in modern criminal law, have any simple and universally accepted definition,[2] though statutory definitions have been provided for certain purposes.[3] The most popular view is that crime is a category created by law; in other words, something is a crime if declared as such by the relevant and applicable law.[2] One proposed definition is that a crime or offence (or criminal offence) is an act harmful not only to some individual but also to a community, society or the state (“a public wrong”). Such acts are forbidden and punishable by law.
What precisely is a criminal offence is defined by criminal law of each country. While many have a catalogue of crimes called the criminal code, in some common law countries no such comprehensive statute exists.
The state (government) has the power to severely restrict one’s liberty for committing a crime. In modern societies, there are procedures to which investigations and trials must adhere. If found guilty, an offender may be sentenced to a form of reparation such as a community sentence, or, depending on the nature of their offence, to undergo imprisonment, life imprisonment or, in some jurisdictions, execution.
Usually, to be classified as a crime, the “act of doing something criminal” (actus reus) must – with certain exceptions – be accompanied by the “intention to do something criminal” (mens rea).[4]
While every crime violates the law, not every violation of the law counts as a crime. Breaches of private law (torts and breaches of contract) are not automatically punished by the state, but can be enforced through civil procedure.
Tort Law
A tort, in common law jurisdictions, is a civil wrong[1] that causes a claimant to suffer loss or harm resulting in legal liability for the person who commits the tortious act.
Tort law, where the purpose of any action is to obtain a private civil remedy such as damages, may be compared to criminal law, which deals with criminal wrongs that are punishable by the state. Tort law may also be contrasted with contract law which also provides a civil remedy after breach of duty; but whereas the contractual obligation is one chosen by the parties, the obligation in both tort and crime is imposed by the state. In both contract and tort, successful claimants must show that they have suffered foreseeable loss or harm as a direct result of the breach of duty.[2][3]
Contract Law
A contract is a promise or set of promises that are legally enforceable and, if violated, allow the injured party access to legal remedies.[1] Contract law recognises and governs the rights and duties arising from agreements.[2] In the Anglo-American common law, formation of a contract generally requires an offer, acceptance, consideration, and a mutual intent to be bound. Each party must have capacity to enter the contract.[3] Although most oral contracts are binding, some types of contracts may require formalities such as being in the form of a signed, dated written agreement in order for a party to be bound to its terms.
In the civil law tradition, contract law is a branch of the law of obligations.
Legal Liability
Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencies. The claimant is the one who seeks to establish, or prove, liability. Claimants can prove liability through a myriad of different theories, known as theories of liability. Which theories of liability are available in a given case depends on nature of the law in question. For example, in case involving a contractual dispute, one available theory of liability is breach of contract; or in the tort context, negligence, negligence per se, respondeat superior, vicarious liability, strict liability, or intentional conduct are all valid theories of liability.
Each theory of liability has certain conditions, or elements, that must be proven by the claimant before liability will be established. For example, the theory of negligence requires the claimant to prove that…
(1) the defendant had a duty;
(2) the defendant breached that duty;
(3) the defendant’s breach caused the injury; and
(4) that injury resulted in recoverable damages.
Breach of Contract
Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party’s performance. Breach occurs when a party to a contract fails to fulfill his or her obligation as described in the contract, or communicates an intent to fail the obligation or otherwise appears not to be able to perform his or her obligation under the contract.
Specific Performance
Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such to complete performance of the contract. It is typically available in the sale of land, but otherwise is not generally available if damages are an appropriate alternative. Specific performance is almost never available for contracts of personal service, although performance may also be ensured through the threat of proceedings for contempt of court.
Specific performance is commonly used in the form of injunctive relief concerning confidential information or real property.[clarification needed] While specific performance can be in the form of any type of forced action, it is usually to complete a previously established transaction, thus being the most effective remedy in protecting the expectation interest of the innocent party to a contract. It is usually the opposite of a prohibitory injunction, but there are mandatory injunctions that have a similar effect to specific performance.
Contract
A contract is a promise or set of promises that are legally enforceable and, if violated, allow the injured party access to legal remedies.[1] Contract law recognises and governs the rights and duties arising from agreements.[2] In the Anglo-American common law, formation of a contract generally requires an offer, acceptance, consideration, and a mutual intent to be bound. Each party must have capacity to enter the contract.[3] Although most oral contracts are binding, some types of contracts may require formalities such as being in the form of a signed, dated written agreement in order for a party to be bound to its terms.
In the civil law tradition, contract law is a branch of the law of obligations.
At common law, the elements of a contract are offer, acceptance, intention to create legal relations, and consideration.
Intention to be Bound
TWO PARTIES DESIRE ENFORCEABILITY
Agree to terms and conditions. Agree to jurisdiction. Agree to due process. Agree to laws and codes. Agree to terms of performance. Agree to compensation. Agree to penalties for breach.
Intention to create legal relations’, otherwise “intention to be legally bound”, is a doctrine used in contract law, particularly English contract law and related common law jurisdictions.[1]
The doctrine establishes whether a court should presume that parties to an agreement wish it to be enforceable at law, and it states that an agreement is legally enforceable only if the parties are deemed to have intended it to be a binding contract.
Offer and Acceptance
TWO PARTIES OF ONE MIND
Offer and acceptance analysis is a traditional approach in contract law. The offer and acceptance formula, developed in the 19th century, identifies a moment of formation when the parties are of one mind. This classical approach to contract formation has been modified by developments in the law of estoppel, misleading conduct, misrepresentation and unjust enrichment.
Treitel defines an offer as “an expression of willingness to contract on certain terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed”, the “offeree”.[1] An offer is a statement of the terms on which the offeror is willing to be bound. It is the present contractual intent to be bound by a contract with definite and certain terms communicated to the offeree.
Meeting of the Minds
MUTUAL COMPREHENSION OF TERMS
TWO PARTIES AWARE OF TERMS
Meeting of the minds (also referred to as mutual agreement, mutual assent or consensus ad idem) is a phrase in contract law used to describe the intentions of the parties forming the contract.
In particular, it refers to the situation where there is a common understanding in the formation of the contract.
Formation of a contract is initiated with a proposal or offer.[1]
This condition or element is considered a requirement to the formation of a contract in some jurisdictions.
Assent
TO ADMIT A THING AS TRUE
assent (third-person singular simple present assents, present participle assenting, simple past and past participle assented)
(intransitive) To agree; to give approval.
Macaulay
The princess assented to all that was suggested.
(intransitive) To admit a thing as true.
Bible, Acts xxiv. 9
And the Jews also assented, saying that these things were so.
Consent
TO SENSE TOGETHER
Recorded in Middle English since circa 1225, from Old French consentir, from Latin cōnsentīre, present active infinitive of…
cōnsentiō (“to feel together”),
itself from com- (“with”) + sentiō (“to feel”)
consent (third-person singular simple present consents, present participle consenting, simple past and past participle consented) (intransitive)
To express willingness, to give permission.
After reflecting a little bit, I’ve consented.
(Can we date this quote?) William Shakespeare
My poverty, but not my will, consents.
(medicine) To cause to sign a consent form.
2002, T Usmani; KD O’Brien, HV Worthington, S Derwent, D …, “A randomized clinical trial to compare the effectiveness of canine lacebacks with reference to …”, in Journal of Orthodontics:
When the patient was consented to enter the study and registered, a telephone call was made to research assistant
(obsolete) To grant; to allow; to assent to.
(Can we date this quote?) John Milton
Interpreters […] will not consent it to be a true story.
To agree in opinion or sentiment; to be of the same mind; to accord; to concur.
(Can we date this quote?) Bible, Acts viii. 1
And Saul was consenting unto his death.
(Can we date this quote?) Fuller
Flourishing many years before Wyclif, and much consenting with him in judgment.
consent (plural consents)
Voluntary agreement or permission.
1603, John Florio, transl.; Michel de Montaigne, chapter 6, in The Essayes, […], book II, printed at London: By Val[entine] Simmes for Edward Blount […], OCLC 946730821:
All men know by experience, there be some parts of our bodies which often without any consent of ours doe stirre, stand, and lye down againe.
(obsolete) Unity or agreement of opinion, sentiment, or inclination.
1604-11, Bible (King James Version), Luke: XIV:18
And they all with one consent began to make excuse.
