Legal Terms Part (D-H) | Legal Reasoning for CLAT PDF Download

D

Damages: Financial compensation ordered by a court to offset losses or suffering caused by another person’s action or inaction. Damages are typically awarded in claims for breach of contract, negligence or breach of statutory duty.

De facto: (Latin: in fact) Something which exists in fact, though not necessarily approved by law (de jure). A common law spouse may be referred to as a de facto spouse, although not legally married. 

De minimis non curat lex: (Latin: the law does not concern itself with trifles) A common law principle whereby very minor transgressions of the law are disregarded. Under the Consumer Information Act 1978, for example, a description must be false “to a material degree” to constitute an offence.

De novo: (Latin: anew) Used to refer to a trial which begins all over again, as if any previous partial or complete hearing had not occurred. A District Court appeal is heard by the Circuit Court de novo, with the court considering afresh all the law and facts.

Debtor: Person who owes money, goods or services to a creditor. If a court judgment has been registered against the person owing the money, he is known as a judgment debtor.

Deed: Written and signed document which sets out the agreement of the signatories in relation to its contents. Under common law, a deed had to be sealed – marked with an impression in wax. A deed is delivered by handing it to the other person. Usually a deed (or some other written evidence) is required in relation to actions involving land.

Defence: Response to claim by plaintiff. Defendant: Person, company or organization which defends a civil action taken by a plaintiff and against whom the court is asked to order damages or corrective action to redress some unlawful or improper action alleged by the plaintiff. Also a person charged with a criminal offence.

Delegatus non potest delegare: (Latin: a delegate cannot delegate) A person to whom authority or decision-making power has been delegated by a higher source, cannot delegate that power to someone else, unless the original delegation explicitly authorised it.

Deponent: Person who swears an affidavit or deposition.

Descendant: Persons born of, or from children of, another. Grandchildren are descendants of their grandparents, as children are descendants of their natural parents. The law distinguishes between collateral descendants, such as nephews and nieces, and lineal descendants, such as sons and daughters.

Detinue: Tort involving the defendant’s retention of property belonging to the plaintiff after the plaintiff has demanded its return. The plaintiff may seek damages for the period of possession, even without proving any actual loss.

Devise: Transfer or conveyance of real property by will. The person who receives such property is called the devisee.

Director of Public Prosecutions: Independent official who decides whether to prosecute in criminal cases and in whose name all criminal prosecutions are taken.

Discovery: Sworn disclosure of documents and records. Certain types of document which are “privileged” need not be discovered, but they must be identified to the other side.

Distraint: Seizure of personal property to compel a person to fulfill a legal obligation. Formerly landlords had the power to distrain against the property of a tenant for arrears of rent or other default, but such action is now forbidden in relation to premises let solely as a dwelling. A legal action for the restoration of goods that have been distrained is called replevin.

District Court: Lowest court in the Irish judicial system, with power to award damages up to €6,350 in civil cases.

District Judge: Judge of the District Court, addressed as “Judge”.

Dividend: Proportionate distribution of profits made by a company in the form of a money payment to shareholders. Dividends are declared by the board of directors at the annual general meeting. The shareholders decide the dividend at the meeting, but it must not exceed the directors’ recommendation.

Domicile: A person’s fixed and permanent residence; a place to which, even if he is temporarily absent, he intends to return. Legally, a person may have many residences or several nationalities, but only one domicile.

Dominant tenement: Property or land that benefits from, or has the advantage of, an easement, such as a right of way.

Donatio mortis causa: (Latin: gift due to death) Gift made by a dying person with the intent that the person receiving the gift shall keep it if the donor dies from his existing complaint. Such a gift is excluded from the estate of the deceased, as the property is automatically conveyed on the donor’s death.

Donee: Beneficiary of a trust or person given a power of appointment.

Donor: Person who gives property for the benefit of another, usually through a trust. Sometimes referred to as a “settlor.” Also used to describe the person who signs a power of attorney.

Duces tecum: (Latin: bring with you) Type of subpoena which requires a person to appear before a court with specified documents or other evidence.

Duress: Threats or force preventing – or forcing – a person to act other than in accordance with free will. A contract signed under duress is voidable at the option of the person forced to sign it. Duress may invalidate a marriage.

E

Easement: A right over a neighbor’s land or waterway. An easement is a type of servitude. For every easement, there is a dominant and a servient tenement, or piece of land . Rights-of- way are the most common easements, but others include the right to tunnel under another’s land, to emit smoke or fumes, to access a dock and to use a well. An easement that is not used for a long time may be lost.

Emolument: Wages, benefits or profits received as compensation for holding office or employment.

Endorsement: Writing on a document. With a bill of exchange, an endorsement is a signature on the back of the bill by which the person to whom the note is payable transfers the right of payment to the bearer or to a specific person. An endorsement may restrict payment to one person only, and prohibit any further endorsements.

Endorsement of claim: Concise summary of the facts supporting a legal claim.

Endowment: Transfer of money or property (usually as a gift) to a charitable organisation for a specific purpose, such as research or a scholarship.

Equity: The law of equity developed to temper the rigid interpretation given by medieval English judges to the common law. For hundreds of years, there were separate courts in Ireland for common law and equity (known as courts of Chancery). Where decisions conflicted, equity prevailed. In 1877, the two systems were merged. The principles of equity, based on fairness, include “equity will not suffer a wrong to be without a remedy” and “equity looks on the intent, rather than the form”.

Estoppel: Rule of evidence which prevents a person from relying on facts when, by deed, word or action, he has led another person to act to his detriment on those facts. Estoppel is a defence, not a cause of action. Anyone who wishes to rely on the defence of estoppel to defend an action must plead it.

Evidence: Testimony of witnesses at a trial, or the production of documents or other materials to prove or disprove a set of facts. Evidence may be direct or circumstantial (that is evidence from which a fact may be presumed). The best evidence available – such as original, rather than copy, documents – must generally be presented to a court.

Ex aequo et bono: (Latin: in justice and fairness) Most legal cases are decided on the strict rule of law. But, where a case is decided ex aequo et bono, the judge may make a decision based on what is just and fair in the circumstances.

Ex parte: (Latin: on the part of) Court application made without notice to the other side. One party is therefore neither present nor represented.

Ex post facto: (Latin: after the fact) Ex post facto legislation retrospectively makes acts illegal which were committed before the law was passed.

Ex turpi causa non oritur actio: (Latin: No action arises from an illegal cause) A person may not sue for damage arising out of an illegal activity. A person may not sue on an illegal contract, because it is void from the time of its creation.

Examination-in- chief: Questioning of witnesses under oath by the party who called those witnesses (also called direct examination). After the examination-in- chief, the other side’s lawyer may question the witnesses in cross-examination. Thereafter, the first party may re-examine them, but only about issues raised during the cross- examination.

Executor: Person appointed by a testator to administer a will. The executor is a personal representative whose duties include burying the dead, proving the will, collecting in the estate, paying any due debts and distributing the balance according to the wishes of the deceased.

Exhibit: Document or object shown to a judge or jury as evidence in a trial. Each exhibit is given a number or letter as it is introduced, for future reference during the trial.

Express trust: Trust specifically created by a settlor, usually in a document such as a will, although it can be oral. An express trust which deals with land must be in writing.

Extradition: The arrest and handover of a person wanted for a crime committed in another country, usually under the terms of a extradition treaty. A person may not be extradited from Ireland for a political offence.

F

Fiduciary: Person (such as a trustee, company director or executor) who exercises rights and powers for the benefit of another person, but without being under the control of that person. A fiduciary must not allow any conflict of interest to affect his duties and would not normally be allowed to profit from his position.

Foreclosure: Forfeiture of a right of redemption on a property (generally when someone fails to pay a mortgage). Even if there has been no payment, the borrower normally retains a equitable right of redemption if he can raise the money to exercise the right. To clear the title of this potential right, a lender can apply to court for a date to be set, by which the entire amount becomes payable. If payment is not made, the property belongs entirely to the lender, who is then free to go into possession or to sell it.

Fraud: Dishonest conduct designed to persuade another person to give something of value by lying, repeating something that is or ought to have been known by the fraudulent party to be false or suspect, or by concealing a relevant fact from the other party. Fraud allows a court to void a contract or to set aside a judgment, and can result in criminal liability. A person who defrauds creditors of a company may be held personally liable.

Freehold: Right to the full use of real property for ever (as opposed to leaseholds or tenancies, which allow possession for a limited time). Varieties of freehold include fee simple, fee tail and life estate.

G

Goodwill: Intangible business asset based on the good reputation of a business and resulting attraction and confidence of repeat customers and connections. Part of the sale price of a business may be for goodwill, in which case the seller may not solicit former customers for his new business.

Gross negligence: Act or omission in reckless disregard of the consequences for the safety or property of another; more than simple carelessness or neglect. Gross negligence by an employee may justify summary dismissal.

Guarantor: Person who pledges collateral for another’s contract.

H

Hearsay: Evidence of which a witness does not have direct knowledge from his own senses but which is based on what others have said. Hearsay evidence is normally only admissible in court proceedings to show that a statement was made, not to prove the truth of the contents of the statement.

High Court: 

Court above the Circuit Court with full jurisdiction to decide all matters of law and fact. High Court judges – male and female – are normally addressed as “My Lord”.

Passage for Practice

Quashing a case of cruelty that was filed against a man by his wife, the Bombay High Court said that if a married lady is asked to do household work for the family, it cannot said that she is treated "like a maid servant", The Court was hearing an application by the husband and his parents seeking that proceedings against them are quashed. A First Information Report ("FIR") was filed against the trio in September 2020, around nine months after the marriage, alleging that they hounded the woman for money to purchase a harassed her mentally and physically and treated her like a maid servant. Examining the evidence, the Court found that there was no merit to the woman's allegations. The Court said that though the FIR says that she was treated properly for about a month and then "like a maid servant", there are no details of what this meant. The Court added: "If a married lady is asked to do household work for the purpose of the family, it cannot be said that it is like a maid servant." The Court held that the mere use of the word harassment "mentally and physically" in the FIR is not sufficient to constitute an offence Section 498A of the Indian Penal Code ("IPC"), which punishes the husband, or a relatitve of the husband of a woman who subjects her to cruelty in any way. It is interesting to note that Section 498A of the IPC also provides that if a married woman is actually treated like a 'maid servant', it would be an offence under that Section.
[Extracted, with edits and revisions, from "If Wife Is Asked To Do Household Work, Does Not Mean She Is Treated Like Maid: Bombay HC", The Wire]

Q1. Ashwin and Ashima were married in February 2020. In March 2020, Ashwin asked Ashima to take care of all their household work, such as cooking, cleaning, and other domestic chores, as he was very busy with his professional responsibilities. Ashima claims that this amounts to treating her like a maid servant and constitutes an offence under Section 498A of the IPC. Applying the Bombay High Court decision, is she likely to succeed?

(a) Yes, since Ashwin had only asked Ashima to do their household work, and not for others.
(b) No, since Ashwin had only asked Ashima to do their household work, and not for others.
(c) Yes, since Ashwin had asked Ashima to do household work for themselves as well as others.
(d) No, since treating a married woman like a maid servant would not amount to an offence under that Section.

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Q2. In April 2020, Rakesh, a friend of Ashwin, visits Ashwin and Ashima’s home and stays with them for a few days. During his stay, Rakesh behaves rudely toward Ashima, using abusive language. One evening, he throws a plate at her in anger over a meal she prepared. Ashima now alleges that Rakesh’s actions constitute an offence under Section 498A of the Indian Penal Code (IPC). Is her claim likely to succeed?
(a) No, because Rakesh’s actions were justifiable for someone dissatisfied with a poorly cooked meal.
(b) Yes, because Rakesh’s use of abusive language and throwing the plate at Ashima amounts to cruelty.
(c) No, because Rakesh is neither Ashwin’s relative nor her husband.
(d) Yes, because Rakesh was staying at Ashwin and Ashima’s home at the time of the incident.

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Q3. Frustrated and unhappy with her marriage, Ashima files for divorce and is granted the same from Ashwin in November 2020. Despite this, Ashima and Ashwin remain in contact as they had been friends for many years before their marriage. Ashima moves into her own apartment and begins working at a new job. Ashwin, upset with this turn of events, starts treating Ashima very cruelly. Ashima now alleges that Ashwin has committed an offence under Section 498A of the Indian Penal Code (IPC). Is her claim valid?

(a) Yes, since Ashwin has, as described, treated her cruelly.
(b) Yes, since Ashwin has been her husband.
(c) No, since Ashwin was understandably upset at Ashima’s behavior.
(d) No, since she is no longer married to Ashwin.

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Q4. What does Section 498A of the Indian Penal Code penalize, and under what conditions could treating a married woman like a 'maid servant' be considered an offence according to this section?
(a) Section 498A penalizes dowry-related harassment, and treating a married woman like a 'maid servant' is an offence if it involves physical abuse. 
(b) Section 498A penalizes mental and physical cruelty by a husband or his relatives, and treating a married woman like a 'maid servant' is considered an offence if it is part of such cruelty. 
(c) Section 498A penalizes the denial of financial support by a husband, and treating a married woman like a 'maid servant' is not considered an offence under any conditions.
(d) Section 498A penalizes verbal abuse by a husband, and treating a married woman like a 'maid servant' only becomes an offence when combined with public humiliation.

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Q5. In January 2021, the government introduced a new law titled the Protection of Rights of Married Women Act, 2021 (PoMWA). Under this law, it is deemed an offense for a husband to ask his wife to perform household chores. If a man commits such an offense, he must compensate the woman. The law also applies retroactively, covering actions that occurred up to three years before its enactment. This includes situations where the couple is no longer married.
Upon learning about the law, Ashima alleges that Ashwin had previously committed an offense under Section 498A of the IPC and seeks compensation under the PoMWA. The question is whether Ashima's claim is valid.

Is Ashima right in her allegations, and will she receive compensation under the PoMWA?
(a) Ashima is correct about Ashwin violating Section 498A of the IPC but will not receive compensation under the PoMWA.
(b) Ashima will receive compensation under the PoMWA but is incorrect about Ashwin violating Section 498A of the IPC.
(c) Ashima will receive compensation under the PoMWA and is also correct about Ashwin violating Section 498A of the IPC.
(d) Ashima will not receive compensation under the PoMWA and is also incorrect about Ashwin violating Section 498A of the IPC.

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