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Legal Terms Part - 4 Notes | Study Legal Reasoning for CLAT - CLAT

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Next of kin: 

Person’s nearest blood relation. The expression has come to describe those persons most closely related to a dead person and therefore due to inherit his property if there is no will.

Important areas for next-of-kin involvement Important areas for next-of-kin involvement 

Non est factum: 

(Latin: not his deed) Defence in contract law which allows a person to avoid liability because he was mistaken about the nature of the contract. For example, a person who signs away the deed to a house, thinking that the document was only a guarantee for a debt, might be able to plead non est factum. Failure to read the terms of a contract will negate this defence.

Nonfeasance: 

Not doing something that one is bound to do by law. Compare with misfeasance.

Nudum pactum: 

(Latin: an empty agreement) An agreement without consideration, such as a unilateral undertaking, which may bind a person morally, but not under contract law, unless the agreement is under seal.

Nuisance: 

Substantial unlawful use of one’s property or interference with another’s property to the extent of unreasonable annoyance or inconvenience to a neighbour or to the public. Private nuisance might be caused by smells, noise, smoke, dust, fumes, vermin, obstruction or a wide range of other activities or inactivity. The remedies would include abatement (an order to cease the nuisance), damages and/or an injunction.

Obiter dicta: 

(Latin: sayings by the way) Observations by a judge on law or facts not specifically before the court or not necessary to decide an issue. An opinion which does not form part of the judgment for the purposes of stare decisis. Such opinions are not binding in future cases.

Offer: 

Definite proposal to contract which, if accepted, completes the contract and binds both the person that made the offer and the person accepting the offer to the terms of the contract. The offer may be express or implied. The person making the offer is called the offeror, and the person to whom the offer is made is the offeree.

Order: 

Formal written direction by a judge. Once a final order is made, it may only be amended if there has been an accidental slip in the judgment. Out-of- court settlement: Agreement between two litigants to settle a matter privately before a court has heard the matter or given its decision. Most personal injuries cases settle before reaching court.

Pari passu: 

(Latin: with equal step) Often used in bankruptcy proceedings where creditors are said to rank pari passu, which means the assets are distributed without preference between them.

Partition: 

Division of jointly-owned land or property between the respective owners.

Partnership: 

Two or more persons carrying on a business together. Partners are each fully liable for all the debts of the enterprise but they also share the profits exclusively. Their rights are regulated by their partnership agreement.

Patent: 

Exclusive privilege granted to an inventor to make, use or sell an invention for a period of years. A renewal fee must be paid every year.

Payee: 

Person to whom a bill of exchange is made payable. On an ordinary cheque, the name preceded by the words “pay to the order of” identifies the payee.

Payor: 

Person who makes a payment on a cheque or bill of exchange.

Pendente lite: 

(Latin: during litigation) If the validity of a will is challenged, a court may appoint an administrator pendente lite with limited powers to preserve the assets of the deceased until a hearing on the validity of the will.

Perjury: 

Deliberate lie under oath or in a sworn affidavit.

Perpetuity: 

Forever, of unlimited duration. The law leans against against agreements that are to last in perpetuity because they may hinder commerce by impeding the circulation of property. The rule against perpetuities says that a limitation of any interest in land is void if it can vest outside the perpetuity period, which is a life plus 21 years. For example, if a will proposes the transfer of an estate at some uncertain future date, which is either more than 21 years after the death of the testator or more than 21 years after the life of a person identified in the will, the transfer is void.

Petition: 

Formal, written submission to court, seeking redress of an injustice. Petitions set out the facts, identify the law under which the court is being asked to intervene, and end with a requested course of action for the court to consider (such as payment of damages). Petitions are normally used to institute proceedings in the areas of bankruptcy, patents, professional disciplinary bodies and family law matters.

Picket: 

Peaceful public demonstration, on or near an employer’s premises, in furtherance of an existing or proposed trade dispute. Picketers may not threaten, insult or abuse other workers.

Plaintiff: 

Person who brings a case to court. (Also called the petitioner or applicant.) The person being sued is generally called the defendant or respondent.

Pleadings: 

Written allegations or claims delivered by one claimant to another which formally set out the facts and legal arguments supporting his position. High Court pleadings might include an originating summons, statement of claim, defence, counterclaim and reply – or a petition and answer.

Power of attorney: Document under seal which gives a person the right to make binding decisions for another, as an agent. A power of attorney may be specific to a certain kind of decision or general, in which the agent makes all major decisions for the subject of the power of attorney.

Precedent: 

Court judgment which is cited as an authority in a later case involving similar facts. Precedent cannot bind a higher court (for example, a Circuit Court decision cannot bind a High Court judge). A Supreme Court judgment binds all courts – although it does not bind the Supreme Court itself in future cases. The system of precedent forms the basis of the policy of stare decisis which helps litigants to predict the outcome of a case in a given situation.

Prescription: 

Way of acquiring property rights, such as an easement, by long and continued use or enjoyment. The required period of continued use or enjoyment, before legal rights are enforceable, is set out in the 1832 Prescription Act.

Prima facie: 

(Latin: at first sight) A prima facie case is one which, at first sight, seems to support the allegation or claim made. If a prima facie case is not made out in the early stages of proceedings, the other side may apply to the court to dismiss the action without hearing the rest of the evidence.

Private law: 

Domestic law which regulates the relationships between individuals and in which the State is not directly concerned. Family, commercial and labour law are examples of private law because their focus is the relationships between individuals or between corporations or organisations and individuals.

Privilege: 

Special legal right such as a benefit, exemption, power or immunity. One example is the right of the media to publish contemporaneous reports of court proceedings without fear of an action for defamation, even if the matters published would ordinarily constitute libel.

Pro rata: 

(Latin: in proportion) Division proportionate to a certain rate or interest. For example, if a company with two shareholders, one with 25% and the other with 75% of the shares, declared a dividend of €1,000 to be split pro rata between the shareholders, the one with 25% of the shares would receive €250 and the other €750.

Pro tempore (pro tem): 

(Latin: for the time) Temporary or for the time being.

Probate law: 

That part of the law which regulates wills and other subjects related to the distribution of a deceased person’s estate.

Prohibition: 

Legal restriction on the use of something or on certain conduct.

Promissory note: 

Unconditional, written and signed promise to pay a certain amount of money on demand or at a certain defined date in the future. Unlike a bill of exchange, a promissory note is a promise – rather than an order – to pay.

Property: 

Property is commonly thought of as something which belongs to a person and over which he has total control. But it is more correctly defined as a collection of legal rights over a thing. These rights are usually enforceable by the owner or the State against others. The most common classifications of property are between real or immovable property (such as land or buildings) and chattels or personal property (such as stock or a leasehold), and between public property (belonging to everybody or to the State) and private property.

Prospectus: 

Document or notice in which a company sets out details of a proposed share or bond issue, inviting the public to invest by purchasing the financial instruments. It must specify the nominal capital of the company, the names, addresses and descriptions of the directors, when the subscription lists open, the amount payable on application and on allotment of shares, and the rights in respect of different classes of share.

Proxy: 

Agent who votes on behalf of another. Any shareholder who is entitled to vote at a meeting of a company is entitled to appoint a proxy to vote in his place. The member may direct the proxy which way to vote.

Punitive damages: 

Special, exceptional damages ordered by a court where an act or omission was of a particularly serious, extensive or malicious nature. (Normally damages are awarded to compensate, not to punish.) Also known as exemplary damages.

Quantum: 

Latin: amount or extent.

Quid pro quo: 

(Latin: something for something) Giving something in exchange for something else. As consideration, it is an essential ingredient of a valid contract.

Quo warranto: 

(Latin: by what authority) Judicial review procedure questioning the authority of a person or organisation.

Quorum: 

(Latin: of whom) Minimum number of people necessarily present at a meeting for business to be validly conducted. Without a quorum, decisions are invalid.

Redemption: 

Repayment of a mortgage, so the equitable estate of the lender and the legal estate of the borrower merge in the mortgagor.

Rent: 

Money or other consideration paid by a tenant to a landlord in exchange for the exclusive possession and use of land, buildings or part of a building. Under normal circumstances, rent is paid at regular agreed intervals, but it may be paid in kind or by the provision of services. A peppercorn rent is a nominal sum (perhaps a penny a year) as an acknowledgement of the tenancy.

Res ipsa loquitur: 

(Latin: the thing speaks for itself) Situation where negligence is presumed against the defendant since the object causing injury was under his control. This is a presumption which can be rebutted by showing that the accident was inevitable and had nothing to do with the defendant’s control or supervision. An example of res ipsa loquitur might be where a motorist hits a stray cow. The event itself imputes negligence by the farmer and that presumption may only be defeated if the defendant proves that the land was properly fenced.

Reserved judgment: 

Decision to be given at a later date.

Respondent: 

Person against whom a summons is issued, or a petition or appeal brought.

Riparian rights: 

Rights of owners of land on a river bank. Riparian rights include the right of access to, and use of, the water for domestic purposes (bathing, cleaning and navigating). The owner of the rights may take action to prevent damming, diversion or pollution of the water.

Sanction: 

To ratify, to approve or to punish.

Senior counsel: 

Barrister who has “taken silk” or been called to the Inner Bar.

Sequestration: 

Temporary confiscation of property by court order until the owner purges his contempt by obeying an earlier court order.

Service: 

Delivery of court documents by one party to the other, personally or by post.

Solicitor: 

General lawyer who may deal directly with the public.

Special Criminal Court: 

Non-jury court with three judges, set up to deal with mainly terrorist offences.

Stare decisis: 

(Latin: to stand by decisions) Policy whereby, once a court has made a decision on a certain set of facts, lower courts must apply that precedent in subsequent cases which embody the same facts.

Strict liability: 

Liability in tort without need to prove wrongful intent, negligence or fault.

Sub judice: 

(Latin: under trial) Matter still under consideration by a court. Any action which may interfere with the proper administration of justice while a matter is sub judice may be a contempt of court.

Subpoena: 

(Latin: under penalty) Court order requiring a witness to attend at a certain time and place or suffer a penalty.

Subrogation: 

Substitution of one person or thing for another by operation of law, without the agreement of the person from whom the rights are transferred.

Successor: 

Person who takes over the rights or property of another.

Sui juris

(Latin: of his own right) Person who has full legal rights and is not under any incapacity, such as being bankrupt, a minor or mentally incapable.

Summons: 

Written command to a person to appear in court.

Supreme Court: 

Final court of appeal in Ireland, headed by the Chief Justice. Most appeals are on matters of law or procedure. The Supreme Court will not normally reverse a finding of fact by a lower court, unless the decision was so perverse that no ordinary person could have come to such a finding on the facts presented.

Surety: 

Person who has pledged himself by deed to ensure that another person fulfils an obligation – such as appearing in court or paying back a loan.

Tenant: 

Person to whom a landlord grants temporary and exclusive use of land or a building, usually in exchange for rent. The contract for this type of legal arrangement is called a lease.

Tenancy in common: 

Tenants-in- common share property rights, but may hold different parts of a piece of land, or unequal shares. On the death of either of them, that person’s share does not pass automatically to the surviving tenant but becomes part of the deceased’s estate.

Tender: 

Unconditional offer of a party to a contract to perform his side of the bargain. For example, with a loan contract, a tender would be the debtor’s offer to repay the amount owing to the creditor. If the tender is refused, the contract comes to an end.

Tenure: 

Right to hold or occupy land or a position for a certain amount of time.

Testator: 

Person who dies after making a valid will.

Testimony: 

Verbal presentation of evidence in court.

Tort: 

Non-contractual breach of duty which allows the injured person to claim compensation (or damages) from the tortfeasor. Torts include wrongs such as negligence, nuisance, defamation, false imprisonment and trespass.

Tortfeasor: 

Person who commits a tort.

Tracing: 

Equitable right of a plaintiff to reclaim specific property, through the court, where the property has passed on to others. This procedure is frequently used by a trust beneficiary to recover  misappropriated trust property. Property may not be recovered from a person who has bought it for value, without notice of the circumstances.

Transferee: 

Person who receives property being transferred.

Transferor: 

Person who transfers property.

Trespass: 

Unlawful interference with another person or his property or rights. Trespass is a civil, not a criminal, offence and is actionable without proof of any actual damage.

Trust: 

Property given by a donor or settlor to a trustee, for the benefit of another person (the beneficiary or donee). A trustee manages and administers the property. A will is a form of trust but a trust can be formed during the lifetime of the settlor, in which case it is called an inter vivos or living trust.

Trustee: 

Person who holds property rights for the benefit of another through the legal mechanism of the trust. A trustee usually has full management and administration rights over the property, which must be exercised to the advantage of the beneficiary. All profits from the trust go to the beneficiary, although the trustee is entitled to recover administrative costs.

Ultra vires: 

(Latin: beyond the powers) An action which is invalid because it exceeds the authority of the person or organisation which performs it. A company cannot normally be bound by an act which is not empowered to do by its memorandum of association.

Undertaking: 

Enforceable promise given to court.

Undue influence: 

Unfair pressure which may invalidate a contract.

Unjust enrichment: 

Profit unjustly obtain by a wrongdoer. To obtain reimbursement, the plaintiff must show an actual benefit to the defendant, a corresponding loss to the plaintiff and the absence of a legal reason for the defendant’s enrichment.

Usury: 

Excessive or illegal interest rate.

Verdict

Decision of a jury. In criminal cases, this is usually expressed as guilty or not guilty and may be unanimous or by a majority of 11-1 or 10-2. In a civil case, the verdict would be a finding for the plaintiff or for the defendant by at least nine of the 12 jurors.

Vicarious liability: 

Responsibility for the tort of another, even though the person held responsible may not have done anything wrong. This is often the case with employers who may be held vicariously liable for damage caused by their employees.

Void: 

Without legal effect. A document that is void is worthless. An anti-competitive agreement or contract in restraint of trade may be void. A “marriage” involving a person under the age of 18 would be void in Ireland.

Voidable: 

The law distinguishes between void and voidable contracts. Some contracts have such a fundamental defect that they are said to be void. Others have more minor defects and are voidable at the option of the innocent party.

Waiver: 

Renunciation of a right or benefit. Waivers are not always in writing. Sometimes actions can be interpreted as a waiver.

 

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