The Business Master (3rd Edition)/The Business Master (3rd Edition).iso/files/legaegal/legal2/lharc2.exe/DEFINE.STB

Text File | 1993-01-06 | 14KB | 305 lines

                    DEFINITIONS OF LEGAL TERMS
                            GLOSSARY
                  THE ON LINE LEGAL PHRASE BOOK

HELLO! We try and make the tutorials and other materials
as simple and easy to read as possible. Here are definitions
of legal terms-- please let us know if there are more
words that we should define.

Agent- Someone you authorize to do something on your behalf. In
some cases such agency needs to be in writing, in others it can
be verbal.

Boot- Money received during an exchange to equalize values. If
two individuals agree to exchange real estate, "boot" is used
to even up the exchange. This term is loosely used to describe
cash out of a deal. For example, if a person sells his business
for an assumption of liabilities and for some cash the cash is
"boot."

"Bulk Sale"- A sale of goods by a business which engages in
selling items out of inventory (as opposed to manufacturing or
service industries) is a "bulk sale" and requires compliance with
(or at least consideration of) the bulk sales law.

Codicil- "A codicil to a will"- formal amendment to a will.  A
codicil is a supplement to a written will which modifies it in
part.  This term can be seen in this program to refer to
witnesses who must state that they are not "beneficiaries under a
declarant's will or codicil."

Common law- In merry Olde England there were two types of Courts-
law and equity. In the law court, the Judge applied statutes. As
time went on, situations that were not covered by statutes were
uncovered, and Judges "created" law, usually in equity. Over
time, the Judge made law was recorded and taught to attorneys as
a part of their training. This is "common law." In all states
except Louisiana, the common law of England was adopted as the
general law of the state, EXCEPT when a statute provides
otherwise. Thus, "common law" is used to fill in gaps. Common law
changes over time, and at this time, each state has its own
common law on many topics.

Compensatory damages- Damages for economic losses. (As opposed
to punitive damages.)

Curtsey (Dower): The law of some states provides that if a
married person dies, their spouse gets the right to use any
real estate they owned (or in some cases some fraction, usually
1/3) during their life. That's right. Some states provide that
if a married person ever owned real estate, even when they sell
it, their spouse retains the right to use it after their death.
You won't be surprised to find that deeds in these states need
a waiver of dower or curtsey. Therefore, in a state with dower
or curtsey, deeds require such waivers if absolute title is to
pass.

Decedent- A person who has died.

Declarant- The person who makes a living will.  Several states'
laws refer to "declarations" in describing living wills or
durable powers of attorney, and consequently the statutes
refer to the person making the document as a "declarant."
In this program declarant refers to the person executing and
making a living will or other legal document.

Devise, Devisees- A "devise" is a gift in a will.  (Lawyers
love to use very complicated terms.)  A devisee is someone who
has been made a gift in a will.  Many states' living will laws
prevent those who have a financial interest in the estate of the
declarant (in other words, devisees) from being witnesses to the
signing of a living will.

Domicile- The principal place of residence of an individual. This
is determined primarily by intent. A good indication of domicile
is where a person registers to vote.

Dower- See CURTSEY, above.

Felony- A serious crime that upon conviction involves forfeiture
of some civil rights, for example, the right to vote, to hold
office and to hold many types of professional licenses. Usually
involves potential punishment of death or more than one year in
jail.


Financing Statement- A formal notice of a lien being held on
personal property, required under the Uniform Commercial Code in
most cases. Also called a "UCC-1" from its form number.

Hypothecation- An agreement whereby someone puts up collateral
to secure the debt of another. This means that someone may agree
that a piece of real estate will be collateral for a debt. If
the debt isn't paid the creditor may have the property seized
to satisfy the debt- although the PERSON hypothecating the
property is not personally liable if the collateral doesn't
pay off the debt. Thus the property is liable for the debt,
not the person guaranteeing the debt.

Indemnity- A legal agreement which provides that a person will
assume liability out of a transaction. For example, someone may
agree to turn a business over to another person for a reduced
price if they pay the debts and other obligations of the business.
In a broad sense, insurance policies are indemnity contracts.

Injunction- A court order requiring someone to do something, as
opposed to a money judgment. For example, in divorces there are
frequently mutual restraining orders (a form of injunction)
requiring both parties to leave another alone.

Inter Vivos- From the Latin, during the life of. Usually
referred to in probate or in trust or other transfers. An inter-
vivos gift is thus a gift made while someone is alive. An inter-
vivos trust is more commonly known as a living trust.

Intestacy, Intestate (Laws of intestacy)- This term refers to a
person who dies without leaving a will, or can also be used to
refer to a person who dies without leaving a valid will. Also, in
specifying who can witness a living will, most states exclude
people who might inherit from someone either by a will or, if
there is no will, by intestacy.  Each state has an intestacy law
which specifies who is to inherit property in the absence of a
will.

Judgment- An order from a court which establishes that a person
is liable to another for a sum of money, or is not liable. Can
also include an "injunction"- a specific order to do or not to do
something.

Liquidated (Liquidated claim)- This term is used in statutes
regarding who is entitled to be a witness to a Living Will.  A
"liquidated" claim is a right or a demand (even if disputed) to
payment in a sum certain. An example of a liquidated claim is a
promissory note for $10,000.00.  One can examine the claim and
determine its value by simple calculation.  Ordinarily, one
holding a liquidated claim against the declarant cannot be a
witness to a living will.

Misdemeanor- A minor crime (as opposed to a felony).

Negligent- (Negligence)- A departure from what an ordinary
reasonable member of the community would do in the same
community.

Negotiable- An instrument is negotiable when the rules of law
allow it to be traded between parties and good faith holders
(Holders in Due Course) receive the instrument free of most
defenses. A promissory note, properly drafted, is a negotiable
instrument.

No fault- A type of insurance in which each party's own insurance
pays their covered losses without regard to fault.

Non-economic damages- Damages for pain, suffering, loss of
companionship, consortium (love of spouse). These are as
opposed to economic losses, such as loss of wages, property,
medical bills, and damage to property. Occasionally, laws
limit the amount of "non-economic" damages which can be
recovered for torts.

Non-recourse assignment- When a promissory note is assigned, the
person assigning the note is effectively endorsing the note and
guaranteeing the note. However, a "non-recourse" assignment
simply sells the note with no other agreements.

Ombudsman- A government official who acts as an advocate for
certain citizens.  Certain states' statutes require that living
wills of individuals in nursing homes be witnessed by an
ombudsman who are approved as advocates for the elderly or
institutionalized. The IRS also has an ombudsman.

Perfect ("Perfect a lien")- If Joe agrees to give you a lien
on his lawn mower, then you have a deal. Given that you are
a wise person, you obviously have a written agreement. This
written agreement is valid between the two of you. What happens
if Joe fails to pay his taxes and the I.R.S. files a lien?
Unless you are PERFECTED the I.R.S. will get the lawn mower.
They don't legally know about the lien unless you are
perfected. Second example- you get a mortgage on a piece of
property. Good for you. But someone else's lien goes first
unless you are perfected- by recording the mortgage. Be sure
to perfect any lien you get.

Perpetuities: (Rule against perpetuities): The rule against
perpetuities is one of the most complicated parts of estate
planning to explain. Basically, common law disfavors and
prevents property from being held perpetually in trust, and
therefore, voids any agreement (the rule varies from state
to state) which does not end twenty-one years after a life
in being, or one generation from lives presently in being
plus twenty-one years. In relation to the living trust
contained in this forms generator, a clause is inserted which
prevents the trust from violating the rule.


Personal Injury Protection (PIP)- A type of no fault automobile
insurance providing for "no fault" payment medical bills and
wages.

Personal Representative- A person or firm (like a bank trust
company) appointed to settle the affairs of a person after
his death. Synonymous with "executor."

Post Mortem- From the Latin, after death. Usually referred to
in wills, estates or tax matters. For example, post mortem tax
planning refers to tax planning that occurs after someone's
death.

Power of attorney (Durable power of attorney)- A power of
attorney is a legal document which gives someone authority
to act on your behalf.  (Unless it involves appearing
in a court, even though it is called a power of attorney it does
NOT have to be made in favor of a licensed attorney.) Some living
will statutes provide that you can designate someone to make
decisions about your health treatment for you, should you be
unable to do so.  These statutes offer this option. To find out
if a state in question's living will laws allows you to do so,
please see the individual state summaries.

A "durable" power of attorney is a special kind of power of
attorney.  It usually must appoint a family member or relative
and often is limited in the kinds of powers that can be
assigned.  Unlike ordinary powers of attorney, durable powers
can survive for long periods of time, and again, unlike standard
powers of attorney, durable powers can continue after
incompetency.  Most standard powers of attorney are
automatically revoked should you become incompetent.

Principal- A person who designates another to act as their
attorney in fact. The person giving a power of attorney.

Punitive damages- Damages recoverable beyond all losses. Such
damages are in the nature of a criminal fine. Many states
limit punitive damages in certain classes of cases.

Quit-claim deed- A deed which simply gives up whatever the
person has as an interest in the property. You only get
what they have-- which may be nothing. And, they do not agree
to defend the property from claims of others.

Remainderman (Remaindermen)- The person who inherits property
when someone passes away, and has executed a "life estate deed."
For example, Fred owns a house. He deeds it to himself for life,
and then to Sally upon his death. Sally is the remainderman.
Sorry for the use of a male pronoun there!

Respondeat Superior- Latin for the "boss has to answer for what
his employees do."

Risk of loss- In a sales transaction (particularly real estate)
the law of many states considers the buyer to be the owner of the
land once the sales contract is signed, and the "owner" just to
be "babysitting" (to put it in legal words-- "holds legal title as
security for the payment of the purchase price") the land.
Therefore, in some states, the "risk of loss" in case of a fire
or other destruction of the property is passed to the buyer, even
though they have not paid for the property. Therefore, real
estate contracts and contracts for sales of businesses should
specifically address the risk of loss.

Settlor- The person who owns property conveyed to an estate.
(A testator makes a will, a declarant makes a living will, a
settlor makes a trust.) Sorry, but that's the way the legal
profession makes things seem so complicated!!! A different
word for everything!

Spendthrift- Our living trust contains a "spendthrift"
clause. A "spendthrift" is someone who is not to be trusted
with large sums of money. Therefore, virtually all trusts
contain a clause preventing the beneficiaries from assigning
their trust interest, or creditors from seizing the funds
from the trust for their foolish debts.

Subrogate- If one person performs a duty of another, they are
then "equitable subrogated" to the rights of the person owed the
duty. The most common form of subrogation is when an insurance
company pays a claim caused by the negligence of another.

Tort- A negligent or intentional wrong not arising out of
a contract or statute. These include "intentional torts"
such as battery or defamation, and torts for negligence.

Tying arrangement- An agreement (against governmental
regulations) requiring that a as a precondition of purchasing or
obtaining services, that other services must be purchased and
must be purchased through the seller. Not all tying arrangements
are unlawful. However, in most instances banks and other lending
institutions may not required that borrowers purchase credit
life insurance or disability insurance as a precondition
of a loan.

Unliquidated (Unliquidated claim)- See liquidated claim.  A
claim is unliquidated when the amount of it cannot be
mathematically calculated, or if it subject to a contingency.

Usury- The civil or criminal wrong of charging interest that is
beyond the legal limit.

Warranty deed- A deed that provides that the person granting
the deed agrees to defend the title from claims of others.
In general under a warranty deed, the seller is representing
that they fully own the property and will stand behind this
promise. The specific "warranties" vary by state. Compare with
quit-claim deed.