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SLS > Glossary > Flashcards

Glossary Flashcards

1
Q

A FORTIORI

A

By reason of being the stronger case. Form of argument.

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2
Q

AB INITIO

A

From the beginning.

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3
Q

ABSOLVITOR

A

A type of decree in which the defender’s case is upheld.

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4
Q

AC

A

“Appeal Cases”. A series of law reports if cases in the UK Supreme Court, and before that, in the House of Lords.

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5
Q

ACTS OF SEDERUNT

A

Orders of the Court of Session regulating court procedures.

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6
Q

ACTS OF ADJOURNAL

A

Orders of the High Court of Justiciary regulating court procedures.

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7
Q

AD FACTUM PRAESTANDUM

A

Another name for a decree of Specific Implement.

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8
Q

ADJUST

A

In a civil action, there is an initial “adjustment” period when the parties can make changes in their written pleadings - the “record is open”. After this period the “record is closed” and any changes will be by “amendment”.

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9
Q

ADVOCATE

A

(i) Member of the Faculty of Advocates, specialising in Court of Session and High Court work. Similar to an English barrister. (ii) A lawyer who undertakes court cases.

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10
Q

ADVOCATE GENERAL

A

(i) The Advocate General for Scotland is a UK Government Minister, advising UK Government on Scottish legal matters and representing UK Government in Scottish litigation. Not to be confused with the Lord Advocate. (ii) The Advocates General who advise the Court of Justice of the European Union.

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11
Q

AFFIDAVIT

A

A statement sworn as true, not in court but before a notary public. Can be used as legal evidence in some types of cases.

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12
Q

AGENT/AGENCY

A

Another word for a mandate - Authorisation by X for Y to enter into a juridical act (e.g. a contract) on X’s behalf.

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13
Q

ALL ER

A

“All England” - a series of law reports (mainly English).

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14
Q

AMEND

A

(i) Where legislation changes the text of other legislation, without however repealing it, the earlier text is said to be amended.

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15
Q

APPELLANT

A

Person appealing to higher court from the decision of a lower court.

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16
Q

APS

A

Act of the Parliament of Scotland (until 1707).

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17
Q

ARBITRATION

A

Where two parties agree to resolve a dispute, not by litigation, but by referring the matter to the decision of a third person, an arbitrator.

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18
Q

ASP

A

Act of the Scottish Parliament (from 1999).

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19
Q

ASSOILZIE

A

(Silent Z) To pronounce a decree of absolvitor in favour of the defender.

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20
Q

ATTORNEY

A

(i) US term for a lawyer. (ii) A “power of attorney” is a document authorising one person to act for another (a type of mandate).

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21
Q

ATTORNEY GENERAL

A

Minister who advises Government on matters of English law, and public international law, and represents Crown in English litigation.

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22
Q

AUDIENCE

A

If a lawyer has a “right of audience” in court, that means they can appear for their client. Advocates and solicitor-advocates have the right of audience in all courts. Solicitors only have this right in lower courts.

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23
Q

AUDI ALTERAM PARTEM

A

Latin for: “To hear the other party”. One of the “rules of natural justice” being that the other party has a right to be heard.

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24
Q

AVER

A

To claim the truth of certain facts - averment.

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25
Q

AVIZANDUM

A

(i) If a court “makes avizandum”, that means it will not make judgement at once, but will take time to consider. (ii) A bookshop specialising in law.

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26
Q

BAR

A

(i) Collective term for lawyers authorised to practice before courts. (ii) More narrowly, it is lawyers who only do court work (advocates).

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27
Q

BARRISTER

A

English equivalent for advocate.

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28
Q

BENCH

A

(i) Chair on which judge sits. (ii) Collective term for judges.

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29
Q

BILL

A

A proposed statute that is being considered by the UK or Scottish parliament.

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30
Q

BLACKLETTER LAW

A

Legal doctrine as opposed, for example, to questions of public policy or legal philosophy. So called because law texts were formerly sometimes printed in blackletter typeface.

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31
Q

BONA FIDES

A

Latin for: “good faith”. This is to be in good faith, acting honestly and being unaware of any irregularity or wrongdoing.

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32
Q

BURDEN OF PROOF

A

Another word for onus probandi. Meaning that usually it is for the pursuer to prove his/her case.

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33
Q

CANON LAW

A

The law of the Christian Church. Some parts of canon law become part of ordinary law.

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34
Q

CAPACITY

A

The ability to have rights and enter into juristic acts. Some persons have restricted capacity.

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35
Q

CAUSE

A

(i) The reason for something. (ii) A court case.

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36
Q

CAUTION

A

A guarantee for someone else’s debt.

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37
Q

CITATION

A

To cite is to call a person to court, whether as a party or as a witness.

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38
Q

CIVIL

A

As well as being the opposite of criminal, civil also means Roman. Therefore, civil law means roman law. A “civilian

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39
Q

CLAIMANT

A

English term for the pursuer.

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40
Q

CODE

A

(i) Part of the Corpus Juris Civilis. (ii) A statute that systematically sets out a whole larger area of law. The two most famous are the French Code Civil/Code Napoleon and the German Bürgerliches Gesetzbuch.

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41
Q

COLLEGE OF JUSTICE

A

Established by the College of Justice Act 1532 - another name for the Court of Session.

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42
Q

COMMENCEMENT

A

A statute that has received Royal Assent is not “in force” until it has been “commenced”. This can happen immediately on Royal Assent, but usually happens later.

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43
Q

COMMISSIONERS OF JUSTICIARY

A

Judges of the High Court of Justiciary.

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44
Q

COMMON LAW

A

(i) Unenacted Law. (ii) A collective term for the Anglo-American legal systems.

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45
Q

COMPENSATION

A

As well as ordinary meaning, compensatio means mutual extinction of debts. If A owes B £1000 and B owes A £700, these are collapsed so that A now owes B £300.

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46
Q

COMPETENCE

A

What an official or an official body can lawfully do.

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47
Q

COMPLAINT

A

Criminal charge by procurator fiscal, triggering “summary” procedure. Oddly, the term “complainer” often refers to the victim of the crime rather than the procurator.

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48
Q

CONCLUSION

A

Statement in a writ of what the pursuer seeks from the court.

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49
Q

CONDEMNATOR

A

A type of decree in which the pursuer’s case is upheld.

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50
Q

CONDESCENDENCE

A

Statement of (alleged) facts within a writ.

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51
Q

CONFIRMATION

A

Authorisation from the local sheriff court necessary before executer can wind up estate.

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52
Q

CONSENSUS IN (or AD) IDEM PLACITUM

A

Agreement. The two parties to a contract must intend the same thing - otherwise there is no valid contract.

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53
Q

CONSISTORIAL

A

Consistorial law is family law.

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54
Q

CONSOLIDATION

A

A consolidation statute is one that does not make new law, but which repeals and re-enacts earlier legislation, in the interests of tidiness and simplification.

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55
Q

CONSTRUCTION

A

Interpretation - the verb is “to construe”.

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56
Q

CONVENTION RIGHTS

A

Rights conferred by the European Convention on Human Rights.

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57
Q

CONVENTIONAL

A

By agreement.

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58
Q

CORPORATION

A

Any juristic person other than a partnership.

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59
Q

CORPUS JURIS CIVILIS

A

Latin for: “body of civil law”. It is the most important legal text of all time. A compilation of Roman Law. Split into four parts: (1) Institutes (2) Digest (3) Code (4) Novels.

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60
Q

COUNSEL

A

An advocate. Senior Counsel = Queen’s Counsel. Junior Counsel = any other advocate who is not QC.

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61
Q

COUNTERCLAIM

A

A claim made by the defender against the pursuer, in addition to his defences to the pursuer’s action.

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62
Q

COURT OF JUSTICE OF THE EUROPEAN UNION

A

Court of the European Union sitting in Luxembourg. It is divided into (i) the Court of Justice (ii) the General Court and (iii) the Civil Service Tribunal.

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63
Q

COURT OF SESSION

A

Established in 1532 and sits in Edinburgh only. It is divided into the Inner and Outer House. The Outer House if the court of first instance. The Inner House hears appeals from the Outer House and other lower courts. Judges are called “Lords of Council and Session” or “Senators of the College of Justice”.

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64
Q

CRAVE

A

The same as the conclusion - used in Sheriff Courts.

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65
Q

CROWN

A

Term used to mean the state, which the Queen personifies.

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66
Q

CROWN AGENT

A

Civil service solicitor in charge of criminal cases.

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67
Q

CROWN AND PROSECUTION SERVICE (COPFS)

A

The prosecution service.

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68
Q

CULPA

A

Fault.

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69
Q

CULPABLE HOMICIDE

A

Criminal killing falling short of murder.

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70
Q

CURATOR BONIS

A

Latin for: “administrator of property”. A type of juridical factor, appointed to look after the affairs of an incapax. The term has now been replaced by “guardian”.

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71
Q

DAMAGES

A

Doesn’t mean harm, but is the right to compensation for harm.

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72
Q

DAMNUM

A

Latin for: “loss”. Damnum injuria datum means loss caused by wrongdoing.

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73
Q

DE MINIMIS NON CURAT LEX

A

Latin for: “the law is not concerned with trivial matters”. The law usually disregards trivial deviations from norms.

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74
Q

DEBATE

A

Court hearings in which questions of law are argued and determined.

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75
Q

DECERN

A

A court is said to “decern” when it issues a decree.

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76
Q

DECLARATOR

A

Decree setting forth the existence of rights, without necessarily seeking to enforce them.

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77
Q

DECREE

A

The order of the court disposing of a case, either in favour of the defender or the pursuer. The three main types of decree are (1) Condemnator (2) Absolvitor and (3) Dismissal. A decree in absence is where the defender has not appeared. A decree in foro contentioso is where the defender has appeared.

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78
Q

DEFENDANT

A

English term for the defender.

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79
Q

DEFENDER

A

Person against whom an action is raised - the opposite of the pursuer.

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80
Q

DELEGATED LEGISLATION

A

Another word for Secondary Legislation. It is legislation not by Act of Parliament, but by procedure authorised by an Act of Parliament. Mostly it is by statutory legislation.

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81
Q

DELICT

A

A civil wrong other than a breach of contract. It may be deliberate, or negligent. Some delicts are crimes, some delicts are not crimes, and some crimes are not delicts.

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82
Q

DEVIL

A

Person training to be an advocate.

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83
Q

DEVOLUTION

A

The grant of limited administrative and legislative power to a sub-national unit. In the UK there is devolution in Scotland, Wales and NI. The areas of law where power is devolved are called devolved areas. The remainder are called reserved areas.

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84
Q

DIET

A

A meeting; a date fixed for the hearing of a case.

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85
Q

DILIGENCE

A

The set of processes whereby a decree for payment can be enforced against the assets of the defender.

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86
Q

DIRECTIVE

A

EU legislation that has to be transposed by the member states. It is an order given to member states requiring them to legislate to achieve a certain aim.

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87
Q

DIRECTOR OF PUBLIC PROSECUTIONS (DPP)

A

Head of the English Crown Prosecution Service

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88
Q

DISMISSAL

A

A type of decree in which no decision is reached. It is in favour of the defender (the pursuer abandons the action or sues in the wrong court etc), but since there is no determination of dispute it is not res judicata.

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89
Q

DISTINGUISH

A

To distinguish a precedent is to show that the precedent in fact deals with a different situation and so is not a true precedent.

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90
Q

DOMINIUM

A

Latin for: “ownership”.

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91
Q

ENACTMENT

A

The general term for an item of legislation, including statutes and statutory instruments.

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92
Q

ENTAIL

A

An English term (used sometimes in Scotland) for tailzie.

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93
Q

EQUITY

A

(i) A special branch of English law. (ii) Fairness, to be applied where the law is too rigid or silent. (iii) Share capital of company. (iv) Value of land or buildings minus the debt secured thereon.

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94
Q

ESTO

A

Latin for: “let it be so” or “even if”.

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95
Q

EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR)

A

International treaty, sponsored by the Council of Europe, binding member states to respect certain rights.

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96
Q

EUROPEAN COURT OF HUMAN RIGHTS (ECtHR)

A

Court set up by the Council of Europe to interpret and apply ECHR. Sits in Strasbourg. Not a court of the EU.

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97
Q

EUROPEAN COURT OF JUSTICE (ECJ)

A

One part of the Court of Justice of the European Union.

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98
Q

EXCAMBION

A

A swap.

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99
Q

EXCEPTION

A

A defence in an action.

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100
Q

EXECUTION

A

(i) Capital Punishment (ii) Performance of a contract (iii) Signing of a deed and (iv) Seizure of assets for debt.

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101
Q

EX LEGE

A

Latin for: “out of law”. By reason of law. Contrasts with something which is based on consent (ex voluntate).

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102
Q

EX VOLUNTATE

A

Something based on consent - contrasts with ex lege.

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103
Q

EXTRACT

A

A full and officially certified copy of something.

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104
Q

FACULTY OF ADVOCATES

A

Professional body to which all advocates belong. Presided over by the Dean of Faculty.

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105
Q

FEUDAL LAW

A

Medieval land law. When land was not owned absolutely, but “held” of a “superior” who held of a higher superior, up to the Crown. The last remains of feudal law are abolished by the Abolition of Feudal Tenure etc (S) Act 2000.

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106
Q

FIRST INSTANCE

A

The court of first instance is a non-appellate court (The Outer House).

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107
Q

GOOD FAITH

A

Bona fides - this is to be acting honestly and being unaware of any irregularity or wrongdoing.

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108
Q

HANSARD

A

The official reports of proceedings in the Westminster Parliament.

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109
Q

HERITABLE

A

Heritable or immoveable property means land and buildings. Everything else is moveable property. Heritable security means security over a heritable property, securing a loan.

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110
Q

HER MAJESTY’S ADVOCATE (HMA)

A

Same as a Lord Advocate - but this is the term used in criminal proceedings.

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111
Q

HIGH COURT OF JUSTICIARY

A

The highest criminal court. Concerns both trials and appeals. The judges (The Commissioners of Justiciary) are the same persons as the Court of Session judges.

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112
Q

HOLYROOD

A

An area of Edinburgh where the Scottish Parliament is.

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113
Q

HOUSE OF LORDS (HL)

A

(i) The upper house of the UK Parliament, whose members are unelected. House of Commons can override it’s veto. (ii) Formerly the highest court of appeal in civil matters. This is now replaced by the Supreme Court.

114
Q

INCAPAX

A

Someone who is unable to look after their affairs and who is lacking in full legal capacity.

115
Q

INDICTMENT

A

A criminal charge by HMA, triggering a “solemn” procedure (a trial by jury) - contrasts to a complaint.

116
Q

INJURIA

A

A wrongdoing or delict. It does not mean injury.

117
Q

INNER HOUSE (of the Court of Session)

A

The highest appeal court (except the UKSC or ECJ) for civil matters. Normally consists of small divisions of three or four judges so as to increase throughput.

118
Q

INSTITUTIONAL

A

Institutional writings are works that have come to be recognised as high authority. For Scots law they are: (i) Thomas Craig, (ii) James Dalrymple, Lord Stair, (iii) George MacKenzie, (iv) Andrew McDouall, Lord Yankton, (v) John Erskine, (vi) David Hume, (vii) George Joseph Bell, and (viii) Archibald Alison. But they are open to debate.

119
Q

INTER ALIA

A

Latin for: “among others”.

120
Q

INTER ALIOS

A

Latin for: “among others” - as in between other persons.

121
Q

INTER VIVOS

A

Latin for: “between the living” - between living persons. It is the opposite of mortis causa.

122
Q

INTER SE

A

Latin for: “between them” - as in between themselves.

123
Q

INTERDICT

A

A court order forbidding someone from doing something.

124
Q

INTERLOCUTER

A

Any order made by court. The final interlocutor disposing of the case is called the decree. A court is said to “pronounce” an interlocutor.

125
Q

INTERNATIONAL PRIVATE LAW

A

Where there is more than one legal system potentially involved. There are two types of issue: (1) The law of which system applies? and (2) The courts of which system have jurisdiction?

126
Q

INTESTATE

A

Where someone dies without a will.

127
Q

IRRELEVANT

A

A possible defence to an action - even if the pursuer can prove all his/her alleged facts they still would not entitle her/ him to the remedy s/he seeks.

128
Q

J

A

In Latin, a consonantal letter I can be written as I or as J.

129
Q

JOINT AND SEVERAL

A

Joint and several liability is also called solitary liability. It is where two or more persons are liable for the same debt, in full. Creditor can claim all from either, but of course cannot claim more than the total due.

130
Q

JUDG(E)MENT

A

(i) An English term for decree. (ii) An opinion given by the judge which explains the decree being granted.

131
Q

JUDICIAL FACTOR

A

A person appointed by court to administer property, investments etc for some special reason (e.g. a curator bonis).

132
Q

JUDICIAL REVIEW

A

Court challenge to lawfulness of administrative act. A typical defender would be the Secretary of State or a local authority or a governmental agency.

133
Q

JURISPRUDENCE

A

(i) The law, or a legal system. (ii) Philosophy of law. (iii) Caselaw.

134
Q

JURIDICAL ACT

A

A lawful act which changes the legal situation (such as making a contract, getting married etc.) Only a person with legal or juristic capacity can do juristic acts.

135
Q

JURISDICTION

A

The extent of a court’s power. The Sheriff Court, for example, has the jurisprudence to try cases of theft, but not murder. They have jurisprudence to deal with a conflict in Scotland, but not Norway.

136
Q

JURISTIC PERSON

A

Also called an artificial, legal or moral person. The law divides people into natural (human beings) and juristic persons (normally organisations). Some juristic persons exist in private law, and some in public.

137
Q

JUS

A

Latin for: (i) “Law”. (ii) “Right”.

138
Q

JUS COMMUNE

A

Latin for: “common law”.

139
Q

JUS IN RE

A

Latin for: “right in a thing”. It is the same as a real right.

140
Q

JUS QUAESITUM TERTIO

A

Latin for: “rights sought by a third party.” A JQT is where a contract between A and B creates rights for C.

141
Q

JUS RELICTAE

A

Legal rights claimed from a widow from the estate of the deceased, when everything is left to another party.

142
Q

JUSTICE OF THE PEACE COURT

A

Deals with minor crimes.

143
Q

JUSTICIARY

A

Justiciary law means criminal law.

144
Q

LAND REGISTER

A

The register that all land and heritage property in Edinburgh is registered into.

145
Q

LAW AGENT

A

Another word for a solicitor.

146
Q

LAW COMMISSIONS

A

Permanent bodies set up by the Law Commissions Act 1956 to propose law reform. There is the Law Commission (London) and the Scottish Law Commission (Edinburgh).

147
Q

LAW SOCIETY OF SCOTLAND

A

Professional body to which all solicitors belong.

148
Q

LEGAL RIGHTS

A

As well as the ordinary meaning - having rights in the law - “legal rights” are inheritance rights of the family which cannot be defeated by testament.

149
Q

LEGISLATIVE COMPETENCE

A

The power which devolved states have to legislate.

150
Q

LEGITM

A

The “legal rights” that children can claim from the estate of a deceased parent in the case where everything is left to another party.

151
Q

LIFERENT

A

Right to use property for a lifetime.

152
Q

LOCUS STANDI

A

Another word for “title to sue”. One possible defence in a case is that the pursuer has no title to sue.

153
Q

LORD ADVOCATE

A

A Scottish Government Minister, who advises the Scottish Government on matters of law. They represent the Crown in litigation and are called “Her Majesty’s Advocate” in criminal proceedings.

154
Q

LORD CHANCELLOR

A

The formerly chief judge in the House of Lords and Minister of Justice for England. Today, they are only the Minister of Justice.

155
Q

LORD OF COUNCIL AND SESSION

A

A Court of Session judge.

156
Q

LORD JUSTICE CLERK

A

The second highest judge in both civil and criminal proceedings. They preside over the Second Division of the Inner House.

157
Q

LORD JUSTICE GENERAL

A

The highest criminal judge. Nowadays, the post is normally held by the same person as the Lord President (head civil judge).

158
Q

LORD ORDINARY

A

A judge in the Outer House of the Court of Session.

159
Q

LORD PRESIDENT

A

The highest civil judge.

160
Q

LUXEMBOURG

A

Where the Court of Justice of the European Union sits.

161
Q

LYON

A

The Lyon Court has jurisdiction in heraldic matters etc. The judge is the Lord Lyon King of Arms.

162
Q

MANDATE

A

Authorisation given by X to Y to enter into juridical acts on X’s behalf (another word for agency).

163
Q

MARGIN OF APPRECIATION

A

The decree of discretion that courts have in giving effect to Convention Rights.

164
Q

MASTER OF THE ROLLS

A

Judge who presides over the English Court of Appeals.

165
Q

MENS REA

A

Latin for: “guilty mind”. In general a person cannot be found guilty unless there is mens rea as well as the overt act.

166
Q

MORA

A

Latin for: “delay”.

167
Q

MORTIS CAUSA

A

Latin for: “on account of death”. A mortis causa act takes full effect on death. The general example is a will.

168
Q

MOTION

A

A request to court during an action. A reclaiming motion is an appeal from the Outer to the Inner House.

169
Q

MOVEABLE PROPERTY

A

All other property other than land and buildings - the opposite of heritable property.

170
Q

MUNICIPAL LAW

A

The law of a state or province as opposed to a wider system such as international law.

171
Q

NATURAL JUSTICE

A

The rules of procedural fairness - nemo judex in causa sua, and audi alteram partem.

172
Q

NEMO JUDEX IN CAUSA SUA

A

Latin for: “nobody should be a judge in his own cause.” It is one of the rules of natural justice.

173
Q

NEMO PLUS JURIS AD ALIUM TRANSFERRE POTEST QUAM IPSE HABERET

A

Latin for: “no one can transfer to another a greater right than s/he him/her/self has.” Alternative formula is nemo dat quod non habet - no one “gives” (ie transfers) what s/he does not have.

174
Q

NOBILE OFFICIUM

A

The power of the Court of Session and the High Court to modify the law in technical points, adhering to the spirit of the law. Used only in clear cases.

175
Q

NOTARY

A

A person authorised to take sworn statements and to authenticate some forms of documents. They exist in all legal systems. In Scotland they are all solicitors.

176
Q

NOVATION

A

The replacement of one obligation by another, by mutual consent.

177
Q

NULLITY

A

Something is absolutely null if it appears valid, but in fact has no legal effect at all. Something is relatively null if it is valid, but can be made null at some point at the option of someone.

178
Q

OBITER DICTA

A

Latin for: “things said by the way.” Things with are said by the judge, but are not necessary to reach his/her decision.

179
Q

OBTEMPER

A

Obey.

180
Q

OFFICIAL JOURNAL

A

Official Journal of the European Union. Where all EU legislation is published.

181
Q

ONUS PROBANDI

A

A burden of proof. Means that it is for the pursuer to prove his/her case. In a civil case, it must be proved on a “balance of probabilities”, but in a criminal case, it must be proved “without reasonable doubt”.

182
Q

OPINION

A

(i) Of a judge, explaining his/her decision. Sometimes called a judgement. (ii) The written discussion of a legal problem, given by an advocate or other expert.

183
Q

OUTER HOUSE OF THE COURT OF SESSION

A

Here judges sit singly to hear cases at first instance.

184
Q

OVERRULE

A

Where an appellate court says that a decision of the lower court in another earlier unconnected case was wrong.

185
Q

PANNEL

A

The person being criminally prosecuted.

186
Q

PARLIAMENT HOUSE (PH)

A

The building that was the home of Parliament until 1707. Since then it has been the home of the Court of Session.

187
Q

PARTY

A

A person involved in some legal event.

188
Q

PARTY LITIGANT

A

A person who conducts his/her own case, without implying a lawyer.

189
Q

PATRIMONY

A

The totality of a person’s assets and liabilities. Patrimonial loss is the equivalent of equal loss.

190
Q

PER INCURIAM

A

Latin for: “by mistake”. A court decision is said to be per incuriam if the court were not informed of all relevant authorities.

191
Q

PERSON

A

A subject of legal rights and duties. Persons are either (i) natural - human beings or (ii) juristic - an organisation or company.

192
Q

PERSONAL BAR

A

Where someone is prevented from enforcing a right where they have led the other side to believe that the right would not be enforced.

193
Q

PETITIONER

A

Similar to the pursuer, only the action takes the form of a petition.

194
Q

PLAINTIFF

A

Former English term for the pursuer - now a claimant.

195
Q

PLANNING LAW

A

“Town and country planning law.” The law regulating the use of land and buildings, requiring permission for new construction etc.

196
Q

POINT

A

To be “in point” means to be relevant. Thus if a court “distinguishes” an old case, they will do so because it is not “in point”.

197
Q

POSITIVE LAW

A

Law as it is (as opposed to what it should be).

198
Q

POSSESSION

A

To be distinguished from ownership. If A steals a bike from B, B has ownership of the bike but not possession, whereas A has possession of the bike but not ownership.

199
Q

PRECEDENT

A

The doctrine of precedent is that where law has been settled in a case, later cases should follow the same rule. A precedent is a prior case on which reliance is placed. A binding precedent is one that the court must follow. A persuasive precedent is one that has weight but is not binding.

200
Q

PRELIMINARY RULING

A

Where a disputed issue of EU law rises in a case before a national court, the court can refer the case to the Court of Justice of the European Union for a decision on that issue.

201
Q

PRESCRIPTION

A

(i) Negative or extinctive prescription means the loss of rights by non-enforcement for a certain period of years. Thus a debt not claimed will eventually prescribe. (ii) Positive or acquisitive prescription means acquisition of ownership by possession over a certain period of years.

202
Q

PRIMA FACIE

A

Latin for: “at first sight”. Where there is enough evidence to lead to a particular conclusion. This is always subject to the possibility that other evidence will emerge to contradict this prima facie.

203
Q

PRIMARY LEGISLATION

A

Legislation in the form of a statute.

204
Q

PRIOR TEMPORE POTIOR JURE

A

Latin for: “earlier by time, stronger by right”. A maxim applicable in many areas of law.

205
Q

PRIVATE LAW

A

All law except public law. It is law between individuals.

206
Q

PRIVATE INTERNATIONAL LAW

A

The same as International Private Law.

207
Q

PRIVY COUNCIL (PC)

A

(i) A body which in theory advises the Queen. (ii) The Appeal Court for certain Commonwealth countries & in Scotland for a short period.

208
Q

PROCURATOR

A

Solicitor (given this name when appearing in court).

209
Q

PROCURATOR FISCAL (PF)

A

Local state prosecutor.

210
Q

PRONOUNCE

A

For a court to pronounce an order is simply for them to issue it.

211
Q

PROOF

A

A court hearing in which the facts are investigated. A proof before answer is where disputed points of law are left open until after the proof.

212
Q

PROTOCOL

A

An addition to a treaty.

213
Q

PUBLIC LAW

A

Law concerning the state (Crown) and state organisations such as local authorities. Examples: : tax law, planning law, constitutional law, criminal law.

214
Q

PUBLIC INTERNATIONAL LAW

A

Law between states.

215
Q

PURSUER

A

The person who raises an action.

216
Q

QUANTUM

A

Latin for: “how much”. The measure of the extent of loss where money is involved.

217
Q

QUASI-CONTRACT

A

Another name for the law of unjustified enrichment.

218
Q

QUEEN’S COUNSEL

A

After about 10-15 years an advocate is normally appointed to the QC. It is basically just a title.

219
Q

QUOAD

A

Latin for: “as to” or “with reference to”.

220
Q

RATIO DECIDENDI

A

Latin for: “the reason for deciding”. It is the reason or the rule of law on which a decision is based.

221
Q

REAL RIGHT

A

A right in a thing, as opposed to a right against a person which is a personal right.

222
Q

RECLAIM

A

What we call an appeal that comes from the Outer House.

223
Q

RECORD

A

Same as adjust.

224
Q

REDUCTION

A

A court reduces something if it is set aside, i.e. made null. This can be done for both void and voidable contracts.

225
Q

REGIAM MAJESTATEM

A

A Medieval Scottish legal text.

226
Q

REGULATION

A

(i) Some statutory instruments are called regulations. (ii) EU legislation which (unlike a directive) takes effect immediately in MS without the need for transposition.

227
Q

RELEVANCY

A

One possible defence to an action is that it is “irrelevant” - even if the pursuer could prove their facts, they would still have no importance.

228
Q

RELICT

A

A gender-neutral term to mean widow or widower.

229
Q

REPARATION

A

The same as delict.

230
Q

REPEL

A

The opposite of “sustain”. If the court repels an argument they do not accept it.

231
Q

RES JUDICATA

A

Latin for: “an adjudicated matter”. The principle that once a court have decided a point and all appeals have ended, he unsuccessful party should not be able to re-open the issue in other proceedings.

232
Q

RESET

A

Knowingly taking stolen goods from a thief.

233
Q

RESCIND

A

To withdraw from a contract on the ground of the other party’s breach of it.

234
Q

RESILE

A

(i) To withdraw from an agreement before it has become a binding contract. (ii) To withdraw from a contract.

235
Q

RESPONDENT

A

(i) The non-appealing party in an appeal. (ii) In a petition, the respondent corresponds to the defender in an ordinary action.

236
Q

REVERSE

A

Where the appellate court rules that the decision appealed from was wrong, it reverses the lower court’s decision.

237
Q

ROYAL ASSENT

A

The consent to a statute, given by the Queen.

238
Q

SASINE REGISTER

A

Register of landownership established by Registration Act 1617. Gradually being replaced by Land Register.

239
Q

SCOTS LAW TIMES (SLT)

A

Journal that is both (a) a series of law reports and (b) an ordinary law journal. Within each volume there are separately-paginated sections.

240
Q

SECTION

A

Statutes are divided into bite-size chunks called sections. They vary in length from a dozen words to several hundred. Sometimes they are divided up further into paragraphs.

241
Q

SECONDARY LEGISLATION

A

Also called subordinate or delegated legislation. It is legislation not by Act of Parliament but by a procedure authorised by an Act of Parliament. Most such legislation is by statutory instrument.

242
Q

SENATOR OF COLLEGE OF JUSTICE

A

A judge in the Court of Session.

243
Q

SEQUESTRATION

A

Formal bankruptcy.

244
Q

SERVITUDE

A

A right held by one land owner in relation to a neighbouring property.

245
Q

SHERIFF

A

A judge in the Sheriff Court - the back bone of the court system. Have jurisdiction on most matters - civil and criminal.

246
Q

SHRIEVAL

A

Adjectival form of “sheriff”.

247
Q

SILK

A

To “take silk” means to be appointed as QC.

248
Q

SIST

A

(i) To sist an action is to suspend all further action for the time being, however the action still remains and the sist can be recalled. (ii) To sist a party in an action is to bring that party in as an additional party.

249
Q

SOLATIUM

A

Latin: “consolidation” or “solace”. Damages to compensate for suffering rather than patrimonial loss.

250
Q

SOLEMN

A

Trial by jury; triggered by a criminal charge by the HMA.

251
Q

SOLICITOR

A

Lawyer qualified to do all legal work except they have no right of audience in Court of Session or High Court. But some solicitors, called solicitor-advocates, have such rights.

252
Q

SPECIFIC IMPLEMENT

A

Remedy of getting someone to perform an obligation itself, as opposed to damages for its non-performance. A decree of specific implement is commonly called a decree ad factum praestandum.

253
Q

STARE DECISIS

A

Latin: “to stand by decisions”. Another word for the doctrine of precedent where law has been settled in a case, later cases should follow same rule.

254
Q

STATUTE

A

An Act of Parliament - primary legislation.

255
Q

STATUTORY INSTRUMENT

A

The main form of secondary legislation.

256
Q

STRASBOURG

A

City on the French/German border where the European Court of Human Rights (ECtHR) sits.

257
Q

STYLE

A

A model form of a document, which lawyers may look at to help them prepare actual documents.

258
Q

SUBORDINATE LEGISLATION

A

Another word for secondary legislation.

259
Q

SUMMARY

A

Any type of accelerated or simplified procedure.

260
Q

SUPREME COURT OF THE UNITED KINGDOM (UKSC)

A

The new House of Lords. It is the highest appeal court in civil and constitutional matters (and criminal in England).

261
Q

SUSTAIN

A

When a court accepts an argument.

262
Q

TAILZIE

A

A way of making land non-transferable so that it would pass from heir to heir for ever. It is abolished.

263
Q

TERTIUS

A

Latin: “third party”.

264
Q

TESTAMENT

A

A will. A person is said to die testate if they have a testament (will).

265
Q

TEU

A

Treaty of the European Union. One of the core treaties on which the EU is based.

266
Q

TFEU

A

Treaty on the Functioning of the European Union. The other core treaty on which the EU is based.

267
Q

THIRD PARTY

A

Legal transactions are usually between two persons - anyone else is a third party.

268
Q

TITLE TO SUE

A

One possible defence is to claim that a person has no title to sue.

269
Q

TORT

A

English term for delict.

270
Q

TRANSPOSE/TRANSPOSITION

A

Implement/Implementation. To give effect to a EU directive within the law of a member state.

271
Q

TRAVAUX PREPARATOIRES

A

French: “preparatory work”. The official talks and discussions leading up to legislation.

272
Q

TREATY OF UNION

A

Treaty between England and Scotland in 1706. Given effect to for England by the Union with Scotland Act 1706 (English Parliament) and for Scotland by the Union with England Act 1707 (Scottish Parliament).

273
Q

TRUST

A

In a trust, one person has ownership (the trustee) but must use it for the benefit of another person or group (the beneficiaries) - rather than both being the same.

274
Q

ULTIMUS HAERES

A

Latin: “ultimate heir”. If someone dies intestate and without relict or traceable relations then Crown takes estate as ultimus haeres.

275
Q

ULTRA VIRES

A

Latin: “beyond the powers”. Corporations are often restricted in what they can do. Acts outwith these powers are ultra vires and may thus be null. A statutory instrument can also be ultra vires if it goes beyond what was authorised by the Act of Parliament in question. The Scottish Parliament would be acting ultra vires if it purported to legislate on something outside of it’s competence.

276
Q

UNJUSTIFIED ENRICHMENT

A

When one party is enriched at the expense of the other.

277
Q

USUFRUCT

A

Another word for ‘liferent’ - the right to use property for your lifetime.

278
Q

VOID, VOIDABLE

A

Another word for null/nullable.

279
Q

WESTMINSTER

A

The part of London where the UK Parliament is housed - shorthand for the UK Parliament.

280
Q

WESTLAW

A

Legal database.

281
Q

WRITER TO THE SIGNET (WS)

A

Society of Writers to the Signet is ancient order of solicitors, formerly holding special rights, but now simply a professional association

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