(07) 5445 1213 [email protected]

Glossary of Legal Terms

Legalese defined

Ab initio: From the beginning.

Abrogate: Repeal, cancel, rescind, annul.

Abscond: Flee, go away.

Absolute Liability: Liability that arises independently of any degree of intent, fault, or wrongdoing. See also Strict Liability.

Act of God: Something that happens without human intervention,
a natural event.

Ad idem: Of the same mind.
See consensus ad idem.

Affidavit: A written statement sworn or affirmed to be true.

Affirm: 1. To elect to proceed with a voidable contract.

2. To confirm the judgment of a lower court.

3. To declare that a statement or evidence is true.

Alienate: To transfer or dispose of property.

Ambiguity: Where a word or a phrase has more than one meaning.

Amend: To correct.

Ancillary orders: Orders incidental to the main orders, for example, an injunction.

Ante-nuptial: Before marriage; also Pre-nuptial.

Appeal: To apply to a higher court to review the decision of a lower court.

Appellant: The person who appeals.

Apportion: To divide in proportion.

Appropriate: To set aside or apart.

Approval, on: Where possession of goods is given to someone who has the option of keeping them or not.

Arbitration: Resolution of a dispute by an appointed person.

Arm’s length, at: A transaction between “strangers”, where there is no relationship between the parties other than a legal one.

Arrest: To deprive a person of liberty or freedom of movement.

Assign: To transfer.

Assignee: Person to whom assignment is made.

Assignor: Person who assigns.

Attest: To witness.

Avoid: 1) To make void.

2) To evade.

Bailiff: An officer of the District Court who serves process and executes judgments.

Barrister: A lawyer whose main function is to represent persons in court.

Bearer: A person who bears, that is who is in possession.

Beneficial owner: the owner of the legal interest in something, the “real” owner.

Bequeath: To make a gift in a will.

Bill of Lading: A document specifying the details of goods being shipped.

Binding: Legally enforceable.

Bona fide: In good faith.

Boycott: To refuse to deal with someone.

Breach: To break, to refuse to honour a contractual promise or an equitable duty.

Burden of proof: The obligation to prove something.

Cargo: Goods on board a ship.

Cause of action: A legal action.

Caveat: 1. A warning.

2. A legal document lodged against the title of Torrens title land which claims an interest in that land.

3. A legal document lodged which will prevent registration of a bill of sale.

Caveat emptor: Let the buyer beware.

Certificate of Title: The document of title to land under the Real Property Act.

Cestui que trust: The beneficiary under a trust.

Charge: A security given over property.

Charterparty: A written agreement for the chartering of a ship to carry cargo

Chattels: Property that is not freehold land; divided into two- categories: (i) chattels real: interests in land other than freehold.

(ii) chattels personal: movable and tangible personal property.

Chose: A thing. Choses can be divided into choses in action and choses in possession.

Chose in action: Personal property that is intangible such as a right to be paid a debt.

Chose in possession: Personal property that is tangible, goods or chattels.

Civil action: Any legal action other than a criminal proceeding.

Collateral: Literally “side-by-side”; in contract law, an agreement in addition to the main agreement.

Committal proceedings: In indictable offences, the proceedings held to inquire whether a prima facie case lies against the accused.

Company: Commonly used to refer to a corporation, generally a limited company. The use of the word “company” or abbreviated form “co” in a business name generally denotes a firm rather than a limited company.

Consensus ad idem: Where the parties are in agreement'” a meeting of the minds.

Constructive: Where a liability, or knowledge, is implied by law without reference to the actual intention or knowledge; as opposed to actual.

Contingent: Dependent upon something.

Contra proferentum: Against the person who alleges it.

Contracting out: Where the parties agree to exclude something from the contract.

Conveyance: Assignment, transfer (generally of real estate); the document that transfers title of land under the old system.

Convicted: Found guilty.

Counterpart: A true copy.

Covenant: A solemn promise generally contained in a deed; an agreement to do or not to do something.

De facto: In fact.

De novo: Fresh, starting again.

Debenture: Any document issued by a corporation evidencing or securing a loan.

Deceit: An action in tort for fraudulent misrepresentation.

Decree: A court order.

Deed: A written document signed, sealed and delivered or expressed to be a deed.

Deed Poll: A deed by one party only.

Default: To fail to carry out a duty or obligation.

Defendant: The person against whom a legal action is brought. –

Del credere agent: An agent for the sale of goods who guarantees price and/or title.

Deposit: Payment of money by way of:

1. an earnest

2. part payment or

3. evidence of good faith.

Divest: To take away.

Donatio mortis causa: A gift given in anticipation of the giver’s death.

Easement: a burden on land, such as a right of way.

Ejectment: A legal remedy to recover possession of land.

Emblements: The profits of a growing crop.

Encroach: To intrude upon.

Encumber: To charge or mortgage; to create a burden on land such as an easement.,

Encumbrance: A charge, or mortgage; a burden on land, such as an easement.

Estate: An interest in land.

Estoppel: Where a person, by words or conduct, leads another person to reasonably believe that something is so, that person will be precluded from denying that it is so.

Et seq: And those following.

Ex gratia: Without legal obligation.

Ex parte: An application to a court made in the absence of the other party.

Ex post facto: Retrospectively.

Excise: A tax on the II)anufacture of goods.

Execute: To carry out, perform.

Executed: Carried out, performed.

Executor: A male person appointed by someone else to wind up business affairs after death. The archaic female form is executrix.

Executory: Yet to be carried out or performed.

Express: Direct, written or spoken.

Factor: A mercantile agent.

Fee simple: Total ownership of freehold land.

Felony: A serious crime.

Fiduciary relationship: A legal relationship based on trust, carrying certain obligations.

Foreclosure: A legal action in which the mortgagee, where the mortgagor had defaulted, takes over the security.

Freehold: The highest form of ownership of land.

Goods: All chattels personal other than money, emblements and fixtures.

Goodwill: The value that a business has because of its clientele or location or reputation of the owner.

Guarantee: A promise made by a person, the guarantor, to meet the obligation of another if that person fails to do so.

Guardian: A person with the legal right and obligation to look after another and/or his or her affairs.

Hire-purchase: An agreement in which the owner of goods gives possession of them to the hirer in return for monthly payments over a fixed period. Upon making the final payment, ownership passes to the hirer.

Hold out: To represent that one has a certain capacity or status.

IOU: A written promise to pay a debt. Ibid: In the same place. Idem: Same.

Imply: To infer.

In futuro: In the future.

In loco parentis: In the place of a parent.

In perpetuum: Forever.

In personam: A legal action directed against the person.

In re: In the matter of.

In rem: A legal action taken over property which lies because of the property.

In toto: All, entirely, wholly.

In transitu: In transit.

Indemnity: A promise made by a person (or a duty imposed by law upon that person) to make good a loss suffered (or to be suffered) by another.

Indenture: A deed between two or more persons.

Indictable offence: Generally a criminal offence dealt with by a judge and jury.

Injunction: An order by a court to someone not to do something or to cease doing something (prohibitory) or to do something (mandatory).

Insolvent: Unable to pay one’s debts as they fall due. Instrument: A written document.

Inter alia: Amongst other things.

Inter vivos: Between living persons.

Interest: 1. A right or title or obligation in something.

2. An amount charged to borrow money.

Interlocutory: A legal action or order ancillary to the main action or order.

Intestate: Without a will.

Intra vires: Within the powers (of).

 

Ipso facto: Because of that fact.

Join in: To bring another party (into a legal action).

Joinder: Where a plaintiff or a defendant joins in another party in a court action, or where the court orders that another party be joined.

Joint and several: Where two or more parties have joint and several liability, they may be sued separately or together at the creditor’s option for the whole amount.

Judgment: An order or decision of a court.

Judgment debtor; someone against whom judgment has been given,

Judgment creditor: Someone who has obtained a judgment.

Jurisdiction: The limits, territorial or by reference to money or subject matter, of a court’s powers.

Jury: A group of laypersons, usually 12 in a criminal case, who are sworn to decide questions of fact in a court case.

Justice: 1. A lower court magistrate in English courts.

2. The title given to a higher court judge in Australia. for example Justice Kirby.

3. A justice of the peace.

Laches: Unreasonable delay in pursuing a legal remedy.

Lease: The grant of possession of property for a fixed or indeterminate period; something less than full ownership.

Leasehold: Land held under a lease.

Legal personal representative: the executor or administrator of the estate of a dead person.

Legacy: A gift of personal property by will.

Legal tender: The form in which payment may be made. Lessor: The person who grants a lease, landlord.

Lessee: The person to whom a lease is granted, tenant.

Liable: The state of being subject to a legal obligation.

Liability: A legal obligation.

Lien: A right to retain possession.

Liquidated damages: An amount or method of calculation.

Liquidator: The person who is appointed to wind up (terminate) the affairs of a company.

Mala fide: In bad faith.

Mens rea: The intention to commit a wrongful act, a guilty mind.

Mortgage: The giving of a charge over land to secure a debt.

Mortgagor: The person who gives the charge, the borrower.

Mortgagee: The person who receives the charge, the lender.

Nemo dat qui non habet: You cannot pass on a better title than you yourself have.

Next-of-kin: Generally the nearest blood relative, it can also refer to a person nominated as a next-of-kin.

Non est factum: “This is not my deed”, a specific legal defence.

Non sequitur: This does not follow.

Notice, as in to give notice: to bring something to the attention of another.

Notice: The knowledge of something. Actual knowledge is where the person is actually aware of a fact, constructive knowledge means that the person is considered to have that knowledge because circumstances are such that he or she should have reasonably known it.

Novation: A new or substituted agreement.

Oath: To take an oath is to swear to tell the truth or that something is true.

Obiter dictum: A statement by a judge that is not necessary to decide the case and is therefore not binding.

Obligation: A legal duty.

Pari passu: Equally.

Party: A person involved in a legal action or relationship.

Payee: A person to whom payment is made or to whom a bill of exchange is payable.

Penalty: A punishment, fine.

Per annum: By the year.

Peljury: Swearing a false oath, not telling the truth while under oath.

Personal property: Property that can be moved, goods, chattels.

Personalty: See personal property.

Plaintiff: The person who institutes legal proceedings.

Possession: The holding in one’s custody of something.

Posthumous: After death.

Preamble: Introduction, introductory words or passages.

Precedent: The concept that a legal principle or form decided in an earlier case, or instance, should be used in a subsequent one.

Presumption: An assumption made in a legal case, of which there are three kinds:

1. presumption of fact; an inference drawn from the facts.

2. irrebuttable presumption of law; a rule of law or legal principle that cannot be contradicted by factual proof.

3. rebuttable presumption of law: a legal rule or principle that can be overturned by factual evidence.

Prima facie: As it first appears.

Priority: A first legal claim, a claim that is ac~ep.ted in preference to other competing claims.

Pro rata: Proportionally.

Property: 1. The subject matter of ownership.

2. Ownership, title.

Prosecute: To take legal proceedings.

Proxy: A properly appointed agent or representative (generally to vote).

Purchaser: Buyer. Quash: Set aside.

Queens Counsel: A senior barrister.

Quid pro quo: Something for something, a bargain.

Quiet enjoyment: The right to enjoy and/or use something without interruption.

Ratify: 1. To approve or consent in retrospect.

2. To adopt.

Ratio decidendi: Literally the reasons for a decision, the binding legal principle in a case.

Real property: Land and the things that go with it.

Realty: See Real property.

Rebut: To repel, defeat, contradict, prove otherwise. Also Rebuttal.

Receiver: A court appointed person to deal with the business affairs of a bankrupt or of an insolvent company.

Rectify: By a court, to order the correction of an error.

Registrar: Usually the principal administrative officer of a court.

Release: To discharge, give away, a legal right.

Rem (Res): Thing(s).

Remedy: The means by which the breach of a benefit or right is cured or compensated or prevented.

Remote: Too indirect or removed to allow a remedy.

Repeal: To take back, cancel.

Repudiate: Renounce, cancel.

Res ipsa loquitur: Things speak for themselves.

Rescind: Terminate, revoke, cancel. See text for the various meanings of rescind and the distinction between rescind ab initio and rescind in futuro.

Residue: That which remains.

Respondent: The person defending an appeal.

Resume: To compulsorily acquire. Al-50 resumption.

Revoke: Take back, withdraw.

Right: An interest or benefit recognised by law.

Right of action: The right to bring legal proceedings.

Sanction: A legal penalty or punishment.

Sans recours: Without recourse.

Satisfy: To discharge (an obligation).

Seal: A formal signature.

Security: A right to take or dispose of something if a debt is not paid or an obligation not discharged.

Sequestrate: To order that a person’s property be taken away him and dealt with by another.

Serve: To deliver a document to.

Settle: 1. To compromise a legal case. 2. To complete a transaction.

Sign judgment: To obtain judgment in default legal proceedings.

Solicitor: A lawyer generally who conducts and handles legal matters and gives legal advice.

Solvent: Able to pay one’s debts as they fall due. Contrast insolvent.

Specific performance: An order compelling a party to do something.

Stare decisis: The principle of precedent.

Status quo: As things were.

Statute: An Act of Parliament.

Strict liability: Where fault does not have to be proved in the party accused of wrongdoing.

Subpoena: An order of a court to someone to give evidence or to produce documents.

Subrogate: To stand in the place of another.

Sui juris: Of full legal capacity.

Suit: A legal proceeding.

Summons: A document of a court which initiates legal proceedings.

Surrender: To give up a legal right.

Tenant: Generally now a person who holds real property under a lease, lessee

Tender: 1. An offer.

2. Attempted performance.

Term: 1. A period of time.

2. A contractual promise.

Testamentary: Under or by a will.

Third Party: A stranger to a transaction, legal proceeding or relationship.

Title: 1. Ownership.

2. Right to ownership.

Tort: A civil wrong not arising out of a contract or at equity.

Transfer: To assign.

Transferor: A person who transfers.

Transferee: The person to whom transfer is made.

Trial: The hearing of a legal proceeding.

Uberrimae fidei: Utmost good faith.

Ultra vires: Beyond the powers (of).

Unenforceable: Where a legal right or remedy, although existing, will not be recognised by a court.

Value: Valuable consideration.

Vendor: The seller.

Verdict: The decision of a jury.

Vest: To confer legal rights on.

Voluntary: In the absence of valuable consideration.

Waive: To renounce, disclaim.

Will: A document in which a person gives direction for the disposal and/or management of property after death.

Wind up: To conclude the affairs of a business organisation.

Witness: A person who gives evidence in a legal proceeding.

Writ: A summons.

Wrong: An infringement of a right.