Legal Terms and Concepts (D)

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1. damages
Money award that the judgment of a court requires the defendant in a suit to pay to the plaintiff as compensation for the loss or injury inflicted. Damages are the form of legal redress most commonly sought. With a few exceptions, English courts of law traditionally afforded only this remedy, while the grant of damages in courts of equity was solely incidental to other relief, such as injunction. The purpose of damages is to compensate the injured party for the loss that he has suffered and will probably suffer from the defendant's illegal conduct. Thus, in a suit for physical injuries the plaintiff may seek recovery for the pain he endured and his accrued medical expenses and for probable loss of earnings due to disability during the period of his incapacity. In suing for breach of contract the plaintiff need not prove the extent of his loss if the contract specified the “liquidated” damages, i.e., the probable loss from breach. Where there is a question as to the amount of damages, the jury usually makes the assessment. While the ordinary object of damages is simply to compensate the injured party to the extent of the injury, where there was fraud or deliberate wrongdoing, exemplary or punitive damages may be allowed. Many statutes thus provide for double or treble damages. In some instances where the extent of the loss cannot be determined or the injury is slight, nominal damages (e.g., a penny) may be granted. Usually the losing party is required to reimburse the winning party for having put him to legal expense. In England reasonable counsel fees are recoverable, while in the United States only those expenses fixed by statute are recoverable. In some U.S. states, however, even the winning party may be required to pay compensation if by delay or other improper conduct he added to his opponent's legal costs. When damages and legal costs are awarded they become a lien on the debtor's property, which the creditor may seize and sell if the debtor does not meet his obligation. In some states, if the debtor attempts to put his property out of reach, an injunction ordering him to pay may be issued. During the 1990s conservatives pursuing “tort reform” prevailed on many state legislatures to enact laws limiting damages, but state courts have consistently voided these laws as violations of state constitutional guarantees of open court systems.

2. decree
decree, in law, is a decision of a suit in a court of equity. It is the counterpart in equity of the judgment in a court of law, although in those jurisdictions where law and equity have merged, judgment is sometimes used to include both. The difference between the two, however, is fundamental. A judgment must be unconditionally for one party or another, but a decree is adaptable to the peculiar necessities of each case and may include rights and duties of both parties. A decree may impose conditions on its enforcement upon either party. The decree may act against the person of the defendant; it is not restricted to the award of money damages. It may contain an injunction against the performance of certain acts. One of the most familiar of the decrees given by courts of equity is the decree of divorce, adjudicating the dissolution of a marriage and awarding alimony. Decrees are enforced by proceedings for contempt of court.

3. deed
deed, in law, is a written document that is signed and delivered by which one person conveys land or other realty to another. A deed may assure the extent of the conveying party's ownership or, if the party is uncertain of the precise extent, he issues a quitclaim (i.e., a sale), without description, of whatever he may own. The formalities with which a deed is invested are designed to make the instrument conclusive evidence of the transaction described and to eliminate the need for further proof. In all states of the United States deeds must be formally delivered and their receipt formally attested. It is possible to deposit a deed with a third party or a court for delivery to the purchaser; this is termed a delivery in escrow. Most states also require that deeds be acknowledged by a duly authorized commissioner and that a copy be deposited with the clerk of the county where the realty is situated. If the formalities are not observed, a deed (or the contract purporting to convey realty) is some, but not conclusive, evidence of the conveyance.

4. divorce
partial or total dissolution of a marriage by the judgment of a court. Partial dissolution is a divorce “from bed and board,” a decree of judicial separation, leaving the parties officially married while forbidding cohabitation. Total dissolution of the bonds of a valid marriage is what is now generally meant by divorce. It is to be distinguished from a decree of nullity of marriage, or annulment, which is a judicial finding that there never was a valid marriage.

Although created by a contract between husband and wife, marriage is a legal relation of a particular nature with certain mutual rights and obligations, determined not by agreements but by the general law. In a sense, then, the state has an interest in every marriage. The parties cannot themselves officially terminate the marital relation by a contract of separation.

Jurisdiction over Divorce

In England, divorce was originally under the jurisdiction of the ecclesiastical courts. These courts followed the canon law rules. They could grant a divorce from bed and board and could pass on the original validity or nullity of the marriage, but could not grant a total divorce from the marriage bond. This power lay only in Parliament. In 1857, by act of Parliament, judicial courts succeeded to the jurisdiction over nullity and partial dissolution and were given the added power to grant total dissolution of the marriage. In the United States, where ecclesiastical courts were never established, the matrimonial law of England applied by these courts was never received as part of the common law. Consequently, suits for divorce can be brought under authority of statute only. The statutes usually confer upon equity courts jurisdiction over divorce. The power to legislate on divorce belongs to the states and not to the federal government, and each state has unique laws regarding divorce. The state of residence at the time of divorce, not the state in which a couple was married, determines what laws apply.

Grounds for Divorce

Until the recent advent of the “no-fault” divorce, in which neither party is expected to prove the spouse as the “guilty party” in the marriage, a marriage could be dissolved only for what the state deemed to be proper grounds. While “no-fault” divorces have become increasingly common in all U.S. states, there are still many cases where marital partners seek to establish fault, particularly in states that require a waiting period of legal separation before allowing a “no-fault” divorce. The most common grounds are adultery, desertion, and physical or mental cruelty. Habitual drunkenness, incurable mental illness, conviction of a crime, nonsupport, or constructive abandonment are other grounds for establishing fault. Corrupt consent by a party to the conduct of the other party bars a divorce, as does collusion. Forgiveness of the offense, either express or implied (as by cohabitation), on condition that it not be repeated, is a bar to a divorce for that offense.

The Divorce Decree

A decree of divorce is valid only if the court rendering the decree has jurisdiction, and jurisdiction is in the main based on the domicile of the parties. An absolute divorce, as contrasted with a decree of nullity, takes effect from the date of the decree. By the divorce decree, the custody of the children is usually given at the discretion of the court to one of the parties, the welfare of the children being the principal consideration. In recent years, fathers in divorce proceedings have fought for equal custody rights, calling into question the long-standing tradition of favoring the mother in custody battles. New developments in divorce law allow joint custody of children, as well as visitation rights for grandparents and other relatives.

The wife may retain the husband's name, although in most states she may choose to resume her maiden name. Both parties are usually at liberty to remarry, although this rule is not invariable, and a time limit within which the parties may not remarry is sometimes imposed. In most jurisdictions, one spouse may be entitled to alimony payments from the other at the discretion of the court.

5. domicile
domicile is the one's legal residence. This may or may not be the place where one actually resides at any one time. The domicile is the permanent home to which one is presumed to have the intention of returning whenever the purpose for which one is absent has been accomplished. One may simultaneously have a temporary lodging for a short time at one place, a more permanent abode called a residence at another, and a domicile at still another place. Usually the domicile of the husband and father determines that of wife and children. Determining domicile is important in defining the legal status of a person and the nationality of a public corporation (a legal person) under international law.

6. dowry
the property that a woman brings to her husband at the time of the marriage. The dowry apparently originated in the giving of a marriage gift by the family of the bridegroom to the bride and the bestowal of money upon the bride by her parents. It has been a well-established institution among the propertied classes of various lands and times, e.g., in ancient Greece and Rome, India, medieval Europe, and modern continental countries. Generally the husband has been compelled to return the dowry in case of divorce or the death of the wife when still childless. One purpose of the dowry was to provide support for the wife on the husband's death, and thus it was related remotely to the rights of dower. In civil-law countries the dowry is an important form of property. In England and the United States (except for Louisiana), the dowry system is not recognized as law.

7. duress
In law, actual or threatened violence or imprisonment, by reason of which a person is forced to enter into an agreement or to perform some other act against his will. The constraint or threat of constraint must have been directed toward the person thus compelled or toward the wife, husband, parent, child, or other near relative of the person compelled. Anyone who makes a contract under duress is entitled to void it and be free of its obligations, but in order to release him from the contract duress must be shown to have overcome his mind and will. However, annoyance and persuasion do not constitute duress.