Friday, January 20, 2012

Legal Terms and Concepts (C)

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1. censorship
An official prohibition or restriction of any type of expression believed to threaten the political, social, or moral order. It may be imposed by governmental authority, local or national, by a religious body, or occasionally by a powerful private group. It may be applied to the mails, speech, the press, the theater, dance, art, literature, photography, the cinema, radio, television, or computer networks. Censorship may be either preventive or punitive, according to whether it is exercised before or after the expression has been made public. In use since antiquity, the practice has been particularly thoroughgoing under autocratic and heavily centralized governments, from the Roman Empire to the totalitarian states of the 20th cent.

2. chattel
any property other than a freehold estate in land. A chattel is treated as personal property rather than real property regardless of whether it is movable or immovable. Certain uses of the term (e.g., chattel mortgage) refer only to movable property. Otherwise the term also includes chattels real, i.e., those estates in land that do not constitute a freehold.

3. class action
A device that permits one or more persons to sue or be sued as representative of a large group of people interested in the matter at issue. The court in whose jurisdiction a suit is brought typically has wide discretion in determining that a class will be so represented. Certain requirements must be met, e.g., the class must be so large or dispersed that actual joinder of all individuals would be impractical; there must be questions of law and fact common to all members, and these must outweigh any individual questions; and the named parties must adequately represent the interests of their class. Certain forms of notice to members of the class, e.g., by newspaper or broadcast publication or by mail, are also required. In most types of suit, all members of the class are bound by the decision, unless a member of the class opted out of the action at the beginning of the lawsuit. An absentee member may be able to contest the outcome on the basis that due process of law was not adhered to.

In the United States, federal and most state courts allow class action suits. Such suits have figured prominently in civil-rights litigation and in other cases brought to further social and economic reform. In recent decades they have been employed notably by groups of consumers and others seeking to affix liability for harm caused by various products, especially through manufacturers' negligence. Major litigation against the producers of the Dalkon shield (an intrauterine device; see birth control), of Agent Orange (a herbicide used as a defoliant in the Vietnam War), and of asbestos insulation has involved class action suits.

Since the 1980s such suits have been under attack, along with negligence litigation in general, with opponents, mainly conservatives and business interests, arguing that many lawsuits are frivolous and that awards are out of proportion to the offense in some juridictions. A study published in 2004 that reviewed several hundred state and federal class action lawsuits from 1993 to 2002 found that, adjusted for inflation, the average annual award in such suits varied but did not progressively increase, while the median award was relatively constant. At the same time, however, federal court data showed that the number of class action lawsuits doubled from 1997 to 2002.

4. code

In its widest sense any body of legal rules expressed in fixed and authoritative written form. A statute thus may be termed a code. Codes contrast with customary law (including common law), which is susceptible of various nonbinding formulations, as in the legal opinions of judges. The earliest codes (e.g., the Roman Twelve Tables) met the popular demand that oral regulations be written down so that legal chicanery might be prevented. In later Roman law, however, the term code acquired its modern meaning of a precisely formulated statement of the principles underlying some branch of law (e.g., contracts) or an entire legal system. One of the greatest codes was the Roman Corpus Juris Civilis. In Europe, in the late 18th cent., after the general adoption of civil law by the continental countries, jurists asserted that similar codes were needed, and the parent modern European codification, the Code Napoléon, appeared (1804) and was followed by many others. The civil law code is an attempt to determine in advance what legal exigencies will arise and to furnish the means for meeting them. Basic legal principles (e.g., that contracts express the will of the parties) are worked out in systematic detail and great attention is given to consistency. The movement for codification, however, has been largely unsuccessful in countries where common law prevails, such as the United States, despite the argument that the principles of common law are sometimes uncertain and often contradict one another. Advocates of the common law assert that civil law makes possibly futile attempts to predict and control the course of developments. In the United States the term code is sometimes also applied to the statutes of a state or of the federal government that have been edited to eliminate duplication and inconsistencies and arranged under appropriate headings.

5. commutation of sentence
commutation of sentence, in criminal law, is the reduction of a sentence for a criminal act by action of the executive head of the government. Like pardon, commutation of sentence is a matter of grace, not of right; it is distinguished from pardon, however, in that the conviction of crime is not nullified. The commutation, hence, may be granted on condition that the criminal observe certain restrictions for the balance of his original sentence. Many states have statutes providing for commutation of sentence as a reward for good conduct during imprisonment. Once earned, the commutation becomes a matter of right and may be enforced by court action.

6. composition
composition, in ancient and medieval law, is a sum of money paid by a guilty party as satisfaction to the family of the person who was injured or killed. Failure to make the payment might justify retaliation in kind against the offender or his family. In earliest times, the payment was made as a result of a mutual agreement between the parties, but later it was imposed by law. In many societies the amount paid varied according to the rank of the person injured or slain. Composition reflected a transition from a system of feuds or blood revenge (see vendetta) to one where socially dangerous acts are primarily a concern of the state rather than of private persons and their families alone. The exaction of the payment recognized the outrage to the person and the family as the prime offense, but it tended to discourage disorder by providing a substitute for retributive killing or other violence. When, in addition to composition, a fine had to be paid to the state, the dangerous act approached the modern conception of a crime (see criminal law). This institution was known in all Germanic cultures, including Anglo-Saxon England, and was widespread in many parts of the world. It is still practiced in certain Middle Eastern countries. An example of composition is wergild [Old Eng.,=man's price], the payment made by a murderer to the family of a murdered person. Wergild was often paid to the king for loss of a subject and to the lord of the manor for the loss of a vassal as well as to the family of the deceased. The term composition is also used to refer to an agreement between an insolvent debtor and his creditor, whereby the creditor for some consideration, such as an immediate payment of a portion of the debt, waives the remainder and considers his claim satisfied.

7. compurgation
In medieval law, a complete defense. A defendant could establish his innocence or nonliability by taking an oath and by getting a required number of persons to swear they believed his oath. Compurgation, also called wager of law, was found in early Germanic law and in English ecclesiastical law until the 17th cent. In common law it was substantially abolished as a defense in felonies by the Constitutions of Clarendon (1164). Compurgation was still permitted in civil actions for debt, however, and vestiges of it survived until its final abolition in 1833. It is doubtful whether compurgation ever existed in America.

8. conflict of laws
That part of the law in each state, country, or other jurisdiction that determines whether, in dealing with a particular legal situation, its law or the law of some other jurisdiction will be applied. An alternative term, widely used in Europe, is “private international law.” An example of a situation that might involve the different laws of two places is that of a contract signed in one state and mailed to another. Complications may arise if one of the states provides that a contract so delivered is effective once mailed, while the other state provides that it is not effective until received. The conflict of laws rules that a court applies in these disputed situations are commonly designed to decide the case by the law of the territory having the closest connection with the transaction. An often expressed ideal is that of making the decision the same regardless of where the case is decided.

In the United States the existence of many states with legal rules often at variance makes the subject of conflict of laws especially urgent. The Supreme Court ruled in 1938 that each federal court must apply the conflict of laws rules of the state in which it sits. Certain provisions of the U.S. Constitution deprive the states of complete freedom to determine how they will decide cases in this field. Most important is Article 4, Section 1, which provides, in part, “Full Faith and Credit shall be given in each State to the Public Acts, Records, and judicial Proceedings of every other State.” The U.S. Supreme Court has interpreted this provision as requiring each state to treat as valid any judgment rendered by another state that had jurisdiction over the matter and to lend its powers of enforcement to the judgment; the sole exception is that the courts of one state do not enforce claims arising under the penal law of another. Jurisdiction in this context is defined as the capacity of the state to impose its authority on a transaction because of its intimate connection with the litigants and/or the subject of litigation.

There are especially difficult jurisdictional problems in the field of divorce. The chief problem occurs when only one of the parties appears and the other is merely notified of the action. In such cases the Supreme Court has ruled that the state had jurisdiction to divorce if the party appearing was domiciled there. The court has defined domicile as the place where a person is living with the ultimate intention of making it his or her home. A person who obtains a divorce under these circumstances may seek alimony, or payment thereof, in any state and is immune from the charge of bigamy if he or she remarries.

The most important attempt in antiquity to deal with the problem of conflict of laws was the jus gentium [law of nations] of the Romans: a system of laws applied to all free foreigners. The founder of the modern study of conflict of laws was the medieval jurist, Bartolus of Sassoferrato (1314–57).

9. consent
consent, in law, is an active acquiescence or silent compliance by a person legally capable of consenting (see age of consent). It may be evidenced by words or acts or by silence when silence implies concurrence. Actual or implied consent is necessarily an element in every contract and every agreement. In criminal charges, the consent of the party injured (if not obtained by fraud or duress) is a defense for the accused, unless a third party or the state is injured.

10. contempt
The interference with the functioning of a legislature or court. In its narrow and more usual sense, contempt refers to the despising of the authority, justice, or dignity of a court. A contempt of court. can be classified as civil or criminal, direct or constructive. Civil and criminal contempts are distinguished by the function of the punishment—if it is to vindicate judicial authority, the contempt is criminal; if it is to enforce the rights and remedies of a party, the contempt is civil. A direct contempt is one committed in the presence of the court while it is in session. A constructive contempt is one that is committed at a distance from the court and that tends to obstruct or defeat the administration of justice. A refusal to answer a question when directed to answer by a judge is a direct criminal contempt. Disobeying an injunction or a court order that a judgment (e.g., alimony) be satisfied is a civil contempt. A major distinction is whether the court needs to hear evidence to determine if a contempt was committed. Direct criminal contempts may be punished summarily by fine or imprisonment; civil and constructive criminal contempts can also be punished by fine or imprisonment, but the accused must be granted a hearing. In the United States, Congress can punish for contempt of Congress. behavior that occurs during legislative proceedings and that threatens its legislative power. Congress must act before it adjourns, and any imprisonment can last no longer than that session. State legislatures also have limited powers to punish for contempt.

11. contract
contract, in law, is a promise enforceable by law, to perform or to refrain from performing some specified act. In a general sense, all civil obligations fall under tort or contract law. Torts are usually characterized as violations of duties that are imposed on all persons and that have been established entirely by law. In contracts, on the other hand, the parties determine, at least in part, what their obligations to one another will be. Special types of contracts are given separate articles, e.g., negotiable instrument, insurance, and deed.

Criteria for Enforcement

For a contract to be valid, both parties must indicate that they agree to its terms. This is accomplished when one party submits an offer that the other accepts within a reasonable time or a stipulated period. If the terms of the acceptance vary from those of the offer, that “acceptance” legally constitutes a counteroffer; the original offering party may then accept it or reject it. At any time prior to acceptance, the offer may be rescinded on notice unless the offering party is bound by a separate option contract not to withdraw. Only those terms expressed in the contract can be enforced; secret intentions are not recognized. For a contract to be binding, it must not have an immoral or a criminal purpose or be against public policy.

Other criteria for the enforcement of contracts have varied. In the earliest type of enforceable promises, it was the form of the contract (e.g., a sealed instrument) or the ceremony accompanying its execution that marked the essence of the transaction; contracts not sealed or not dignified by ceremonies held a lesser status, and were therefore not always enforceable. The importance of promises in commercial and industrial society produced a new criterion, and generally a promise is now enforceable only if it is made in exchange for consideration, i.e., a payment, for some action, or for another promise. In some jurisdictions, statutes have made certain promises enforceable without consideration, e.g., promises to pay debts barred by the statute of limitations. To be enforceable, most contracts must be in writing, to comply with the Statute of Frauds.

Since a contract is an agreement, it may be made only by parties with the capacity to reach an understanding. Therefore, individuals suffering from severe mental illness are unable to make binding contracts. Until the late 19th cent., married women were also without contractual capacity, because at common law they were considered the creatures of their husbands and without wills of their own (see husband and wife); this disability has been removed by statute universally. Minors are not bound by their contracts, but they are responsible for the value of goods received in contracts made for necessities of life. Otherwise, a minor may denounce his contracts at any time and on attaining majority may elect whether to affirm or repudiate them.

A contract must also be the uncoerced agreement of the parties; thus, if it is procured by duress or fraud it is void. A contract can be unenforceable if it is so one-sided as to be found unconscionable, where the terms are unreasonably favorable to one party; often the material that constitutes unconscionability is buried in fine print or expressed in obfuscatory jargon. Adhesion contracts, which afford no occasion for the weaker party to bargain over their terms, are often offered to purchasers of consumer goods and services, but are not necessarily unconscionable.

Termination of Contracts

While a contract is still wholly or partly unperformed it is termed executory; contracts may terminate, however, in ways other than by being fully executed. If the object of the contract becomes impossible or unlawful, if the parties make a novation (a new superseding agreement), or if the death of one party prevents that party from rendering personal services he or she had agreed to perform, the contract is terminated. The injured party may also treat the contract as a nullity if the other party refuses to perform. The law provides several remedies for breach of contract. The most usual is money damages for the loss incurred. In cases where some action other than the payment of money was contracted for, a court may grant the plaintiff an injunction ordering specific performance. If one party is unjustly enriched by a contract that he or she then repudiates legally, restitution may be required. A typical example of this is ordering a minor who revokes a contract to restore the things of value that were obtained.

12. copyright
copyright is a right granted by statute to the author or originator of certain literary, artistic, and musical productions whereby for a limited period of time he or she controls the use of the product. The work may be reproduced by the individual or by another licensed to do so by the individual. Royalties are paid on each performance of the work or each copy that is sold.

Copyrightable Materials

Literary matter, periodicals, maps, photographs, works of art, textile and other designs, sound recordings, musical compositions, photoplays, and radio and television programs are among the commodities that may be copyrighted. Material for copyright in the United States must be registered and deposited with the Library of Congress. The law makes special provision for the transmission of copyright material over cable television, jukeboxes, and public broadcasting stations. It also specifies circumstances under which the reproduction of copyrighted works by libraries and archives is permissible. Since 1980, computer software has been eligible for the same copyright protection as printed matter, and in 1984, a ten-year period of copyright protection was extended to semiconductor chips. The Supreme Court ruled in 1987 that neither the home use of television video recorders nor their manufacture violated the copyright laws.

The Bern and Universal Copyright Conventions

Copyrighting of foreign materials in the United States is a relatively recent development. After 1891, foreign language material was easily copyrighted in the United States; material in English, however, could not be copyrighted if it was imported, unless type was set and material printed and bound in the United States. Most of the major countries of the world, with the exception of the United States, adhered to the Bern Convention of 1887, which provided that literary material copyrighted in any signatory country automatically enjoys copyright in all the signatory countries.

The Universal Copyright Convention (UCC), which had as a main purpose the inclusion of the United States in a general system of international copyright, was signed at Geneva in 1952. It was accepted by the United States in 1954 and came into effect the following year. The U.S. copyright law was modified to conform to the convention, notably by elimination of procedural steps for the establishment of U.S. copyright in works published in other signatory countries and of the requirement that works in the English language by foreign authors be manufactured in the United States to obtain U.S. copyright protection. The United Nations Educational, Scientific, and Cultural Organization (UNESCO) played a leading part in the negotiations for the UCC, which was revised in 1971. In 1989 the United States became a member of the Bern Convention, which was most recently revised in 1971. Most nations subscribe to the convention, and most of those who do not are parties to the UCC or members of the World Trade Organization, whose agreements cover copyright and other intellectual property rights.


Protection of rights in literary property did not appear necessary in Europe prior to the invention of printing from movable type in the 15th cent. The sovereign asserted control over printing by issuing patents or privileges to individuals or by organizing publishers' guilds with monopoly rights. Through such devices, the state was able to censor heresy and sedition, while at the same time fostering literature. The only protection that the common law extended to the author was against publication of the work without permission; once publication was allowed, the work passed completely out of the author's control.

The first English copyright act (1710), while maintaining the common-law right, allowed the author to copyright a work for 14 years (with a like period of renewal); it also required deposition of copies and a notice that the work was copyrighted. That law was the model for the earliest American copyright statute, passed in 1790. Wheaton v. Peters (1834) established that copyright exists primarily for the public benefit rather than for the creator of the work. The current copyright statute became effective in 1978, superseding an act of 1909. The law provides copyright for the duration of the author's life plus 70 years.

13. coroner
A judicial officer responsible for investigating deaths occurring through violence or under suspicious circumstances. The office has been traced to the late 12th cent. Originally the coroner's duties were primarily to maintain records of criminal justice and to take custody of all royal property. In England this second function persists in his jurisdiction over treasure-trove. In his present-day work of determining cause of death, the coroner proceeds by means of the inquest whenever there is doubt. In several of the United States the coroner has been replaced by the medical examiner, who can only conduct post-mortem examinations, and who works in cooperation with the public prosecutor.

14. corporation
corporation, in law, is an organization enjoying legal personality for the purpose of carrying on certain activities. Most corporations are businesses for profit; they are usually organized by three or more subscribers who raise capital for the corporate activities by selling shares of stock, which represent ownership and are transferable. Besides business corporations, there are also charitable, cooperative, municipal, and religious corporations, all with distinctive features. In the United States all governmental units smaller than a state (e.g., counties, cities) are municipal corporations. Certain religious functionaries (e.g., Roman Catholic archbishops) legally are corporations sole.

The legal personality of a corporation is symbolized by its seal and its distinctive name. As a legal person, the corporation continues in existence when the organizers lose their connection with it. In most cases its liability is limited to the assets it possesses and creditors may not seize property of persons associated with the corporation as stockholders or otherwise. Legal personality gives the corporation many of the capacities of a natural person; e.g., it can hold property and can even commit crimes (for which it may be fined and its directors imprisoned).

15. court
An official body charged with administering justice. The term is also applied to the judge or judges who fill the office and to the courtroom itself. Courts come into existence when legal relations are no longer entirely a private matter. Thus, courts do not exist in a society governed by vendetta, and they are of little consequence in one where composition for wrongs is the rule. In addition to law courts there are ecclesiastical courts, arbitral tribunals (e.g., for labor cases), administrative tribunals, and courts-martial

Early Court Systems

The most ancient courts known, e.g., those of Egypt and Babylonia, were semiecclesiastical institutions that used religious rituals in deciding issues. In Greece the functions of a court were chiefly undertaken by citizens' assemblies that heard the arguments of orators. In Rome there was a clear evolution of the court system from priestly beginnings to a wholly secular, hierarchal organization staffed by professional jurists. Western Europe (after the collapse of Rome) and Anglo-Saxon England had mainly feudal courts of limited territorial authority, administering customary law, which differed in each locale.

Courts in England

In England, after the Norman Conquest (1066), royal authority was gradually extended over the feudal lords, and by the early 13th cent., although purely local courts had not been abolished, the supremacy of the central courts that had evolved from the Curia Regis [Lat.,=king's court], namely, the Court of Exchequer, the Court of Common Pleas, and King's Bench, was established. The Court of Common Pleas heard cases between ordinary subjects of the king, while King's Bench heard cases involving persons of high rank and acted as a court of appeals. Soon itinerant royal courts were established to spare civil litigants the labor and expense of going to the capital at Westminster and to afford hearings to persons held on criminal charges in county jails. By the 14th cent. the principal function of the central courts was to hear appeals from the circuit courts.

Unity was at least temporarily disrupted by the emergence (16th cent.) of equity as a distinct body of law administered by the chancery. The conflict of jurisdiction continued to some extent until 1875, when the Judicature Act of 1873 went into effect. As presently constituted as a result of subsequent reforms, the courts of England and Wales consist of the Court of Appeal, the High Court (with civil jurisdiction), the Crown Court (with criminal jurisdiction), the county courts, and the magistrates' courts. The High Court is divided, purely for administrative purposes, into three divisions: Chancery, Family, and King's (or Queen's) Bench. Appeals may in some instances be taken from the court of appeal to the House of Lords. The judicial committee of the privy council hears appeals from overseas territories still under British domain and from some Commonwealth countries. Under the Constitutional Reform Act 2005 a new Supreme Court for Great Britain and Northern Ireland will be created in 2009, ending the role of the House of Lords as the highest court of appeal.

16. curfew
It is originally a signal, such as the ringing of a bell, to damp the fire, extinguish all lights in the dwelling, and retire for the night. The custom originated as a precaution against fires and was common throughout Europe in the Middle Ages. The curfew has most recently been used in times of turbulence, such as revolution or civil disorders. It is a restrictive measure forcing all persons into their homes to reduce activity against the government or the occupying force. In some communities it has been applied to curb juvenile delinquency.

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