Bachelor of Laws
n. the degree in law from a law school, abbreviated to LLB, which means that the recipient has successfully completed three years of law studies in addition to at least three undergraduate years on any subject. Since the early 1960s most accredited law schools grant a Juris Doctor (JD) degree instead of the LLB. Law schools which made the switch allowed the prior holders of the LLB to claim the JD retroactively.
n. an uncollectible debt. The problem is to determine when a debt is realistically dead, which means there must be some evidence of uncollectibility or a lengthy passage of time. Discharge in bankruptcy, the running of the statute of limitations to bring a lawsuit, disappearance of the debtor, a pattern of avoiding debts or the destruction of the collateral security can all make a debt “bad.” For income tax deduction purposes such a debt in business is deductible against ordinary income and such a personal debt is deductible against short-term capital gains. A debt due for services rendered is not a bad debt for tax purposes, since there is just no income on which to be taxed.
1) n. intentional dishonest act by not fulfilling legal or contractual obligations, misleading another, entering into an agreement without the intention or means to fulfill it, or violating basic standards of honesty in dealing with others. Most states recognize what is called “implied covenant of good faith and fair dealing” which is breached by acts of bad faith, for which a lawsuit may be brought (filed) for the breach (just as one might sue for breach of contract). The question of bad faith may be raised as a defense to a suit on a contract. 2) adj. when there is bad faith then a transaction is called a “bad faith” contract or “bad faith” offer.
The money paid to the court, usually at arraignment or shortly thereafter, to ensure that an arrested person who is released from jail will show up at all required court appearances. The amount of bail is determined by the local bail schedule, which is based on the seriousness of the offense. The judge can increase the bail if the prosecutor convinces him that the defendant is likely to flee (for example, if he has failed to show up in court in the past), or he can decrease it if the defense attorney shows that the defendant is unlikely to run (for example, he has strong ties to the community by way of a steady job and a family).
The money posted by a “bondsman” for a defendant who cannot afford his bail. The defendant pays a certain portion, usually 10%. If the defendant fails to appear for a court hearing, the judge can issue a warrant for his arrest and threaten to “forfeit,” or keep, the money if the defendant doesn’t appear soon. Usually, the bondsman will look for the defendant and bring him back, forcefully if necessary, in order to avoid losing the bail money.
n. 1) a court official, usually a deputy sheriff, who keeps order in the courtroom and handles various errands for the judge and clerk. 2) in some jurisdictions, a person appointed by the court to handle the affairs of an incompetent person or to be a “keeper” of goods or money pending further order of the court. “Bailiff” has its origin in Old French and Middle English for custodian, and in the Middle Ages was a significant position in the English court system. The word “bailiwick” originally meant the jurisdictional territory of a bailiff.
Someone who delivers an item of personal property to another person for a specific purpose. For example, a person who leaves a broken VCR with a repairman in order to get it fixed would be a bailor.
Bait and switch
n. a dishonest sales practice in which a business advertises a bargain price for an item in order to draw customers into the store and then tells the prospective buyer that the advertised item is of poor quality or no longer available and attempts to switch the customer to a more expensive product. Electronic items such as stereos, televisions, or telephones are favorites, but there are also loan interest rates which turn out to be only for short term or low maximums, and then the switch is to a more expensive loan. In most states this practice is a crime and can also be the basis for a personal lawsuit if damages can be proved. The business using “bait and switch” is an apt target for a class action since there are many customers but each transaction scarcely warrants the costs of a separate suit.
n. the amount of a debt still owed on an account or the principal owed on a promissory note. In the case of a promissory note, the balance due is not the sum of installments due, since these include amortized interest, but may be the principal due without further interest.
n. the statement of the assets and the liabilities (amounts owed) of a business at a particular time usually prepared each month, quarter of a year, annually, or upon sale of the business. It is intended to show the overall condition of the business. A balance sheet should not be confused with a profit and loss statement, which is an indicator of the current activity and health of the business.
A large final payment due at the end of a loan, typically a home or car loan, to pay off the amount your monthly payments didn’t cover. Many states prohibit balloon payments in loans for goods or services that are primarily for personal, family or household use, or require the lender to let you refinance the balloon payment before forcing collection.
n. 1) an officially chartered institution empowered to receive deposits, make loans, and provide checking and savings account services, all at a profit. In the United States banks must be organized under strict requirements by either the federal or a state government. Banks receive funds for loans from the Federal Reserve System provided they meet safe standards of operation and have sufficient financial reserves. Bank accounts are insured up to $100,000 per account by the Federal Deposit Insurance Corporation. Most banks are so-called “commercial” banks with broad powers. In the east and midwest there are some “savings” banks which are basically mutual banks owned by the depositors, concentrate on savings accounts, and place their funds in such safe investments as government bonds. Savings and loan associations have been allowed to perform some banking services under so-called deregulation in 1981, but are not full-service commercial banks and lack strict regulation. Mortgage loan brokers and thrift institutions (often industrial loan companies) are not banks and do not have insurance and governmental control. Severe losses to customers of these institutions have occurred in times of economic contraction or due to insider profiteering or outright fraud. Credit unions are not banks, but are fairly safe since they are operated by the members of the industry, union or profession of the depositors and borrowers. 2) a group of judges sitting together as an appeals court, referred to as “in bank” or “en banc.”
A legal proceeding that relieves you of the responsibility of paying your debts or provides you with protection while attempting to repay your debts. There are two types of bankruptcies — liquidation, in which your debts are wiped out (discharged) and reorganization, in which you provide the court with a plan for how you intend to repay your debts. The formal condition of an insolvent person being declared bankrupt under law.
Collectively all attorneys, as “the bar,” which comes from the bar or railing which separates the general spectator area of the courtroom from the area reserved for judges, attorneys, parties and court officials.
n. an organization of lawyers. There are two types, one of which is official and usually called an “integrated bar,” which is qualified by the particular state’s highest court to establish rules for admission and conduct. There are also local bar associations by city or county which are unofficial and voluntary, but do conduct the business of attorneys, such as settling fee disputes and working with the local courts on rules.
An examination for law school graduates who want a license to practice law. Once licensed in a particular state, an attorney can practice law in that state and in federal courts in that state. If the attorney moves to another state, he or she will need to take that state’s bar exam, unless the new state allows the attorney to practice without further examination after he or she has established legal residence. Lawyers from one state may occasionally practice in another with the consent of the court alone. Typically, bar exams are multi-day tests of endurance and knowledge, covering a wide range of legal topics.
n. 1) a mutual agreement or contract between two parties which is voluntary and involves the exchange of consideration (money, goods, services, or a promise for a promise). 2) a supposed good deal.
n. name for a lawyer or attorney. In Great Britain, there is a two-tier bar made up of solicitors, who perform all legal tasks except appearance in court, and barristers, who try cases.
For income and capital gains tax purposes, the value that is used to determine profit or loss when property is sold. Often the basis is what you paid for the property, “adjusted” to reflect improvements made or damage incurred while you own the property.
A crime consisting of physical contact that is intended to harm someone. Unintentional harmful contact is not battery, no mater how careless the behavior or how severe the injury. A fist fight is a common battery; being hit by a wild pitch in a baseball game is not.
n. anyone holding something, such as a check, promissory note, bank draft, or bond. This becomes important when the document (generally called a “negotiable instrument”) states it is “payable to bearer,” which means whoever holds this paper can receive the funds due on it.
n. negotiable instrument (e.g. a bond) which is payable to whoever has possession (the bearer).
The seat (usually a comfy chair rather than a bench) where a judge sits in the courtroom during a trial or hearing. Sometimes the word “bench” is used in place of the word “judge” — for example, someone might say she wants a bench trial, meaning a trial by a judge without a jury.
n. the right of a party to some profit, distribution, or benefit from a contract or trust. A beneficial interest is distinguished from the rights of someone like a trustee or official who has responsibility to perform and/or title to the assets but does not share in the benefits.
n. the right to enjoy the use of something (particularly such pleasant qualities as light, air, view, access, water in a stream) even though the title to the property in which the use exists is held by another.
A person or organization legally entitled to receive benefits through a legal device, such as a will, trust or life insurance policy. In a legal context, a ‘beneficiary’ usually refers to the person for whom a trust has been created.
1) n. any profit or acquired right or privilege, primarily through a contract. 2) in worker’s compensation the term “benefit” is the insurance payment resulting from a fatal accident on the job, while “compensation” is for injury without death. 3) in income taxation, anything that brings economic gain. 4) “fringe benefits” may be part of the compensation for employment other than salary or wages, and may include health or disability insurance. 5) v. to gain something, as “This sale will benefit Ken Murray.”
Benefit of counsel
n. having the opportunity to have an attorney and legal advice in any legal matter, but particularly while appearing in court. If someone makes an appearance or agrees to a contract without benefit of counsel, when a lawyer would be either essential or at least quite valuable, he/she may challenge the court rulings or the contract terms, usually without success since failure to have an attorney is the person’s own fault.
A legal term sometimes used in wills that means “leave” — for example, “I bequeath my garden tools to my brother-in-law, Buster Jenkins.”
n. the gift of personal property under the terms of a will. Bequests are not always outright, but may be “conditional” upon the happening or non-happening of an event (such as marriage), or “executory” in which the gift is contingent upon a future event. Bequest can be of specific assets or of the “residue” (what is left after specific gifts have been made).
Best evidence rule
A rule of evidence that demands that the original of any document, photograph or recording be used as evidence at trial, rather than a copy. A copy will be allowed into evidence only if the original is unavailable.
Beyond a reasonable doubt
The burden of proof that the prosecution must carry in a criminal trial to obtain a guilty verdict. Reasonable doubt is sometimes explained as being convinced “to a moral certainty.” The jury must be convinced that the defendant committed each element of the crime before returning a guilty verdict.
n. the predisposition of a judge, arbitrator, prospective juror, or anyone making a judicial decision, against or in favor of one of the parties or a class of persons. This can be shown by remarks, decisions contrary to fact, reason or law, or other unfair conduct. Bias can be toward an ethnic group, homosexuals, women or men, defendants or plaintiffs, large corporations, or local parties. Getting a “hometown” decision is a form of bias which is the bane of the out-of-town lawyer. There is also the subtle bias of some male judges in favor of pretty women. Obvious bias is a ground for reversal on appeal, but it is hard to prove, since judges are usually careful to display apparent fairness in their comments.
n. an offer to purchase with a specific price stated. It includes offers during an auction in which people compete by raising the bid until there is no more bidding, or contractors offer to contract to build a project or sell goods or services at a given price, with usually the lowest bidder getting the job.
To separate the issues in a case so that one issue or set of issues can be tried and resolved before the others. For example, death penalty cases are always bifurcated. The court or juryfirst hears the evidence of guilt and reaches a verdict, and then hears evidence about and decides upon which punishment to impose (death or life in prison without parole). Bifurcated trials are also common in product liability class action lawsuits in which many people claim that they were injured by the same defective product — the issue of liability is tried first, followed by the question of damages
n. 1) what is commonly called a “check” by which the signer requires the bank to pay a third party a sum of money. This is a holdover from the days when a person would draw up a “bill of exchange.” 2) a statement of what is owed. 3) any paper money. 4) a legislative proposal for enactment of a law. It is called a bill until it is passed and signed, at which time it is a law (statute) and is no longer referred to as a bill. 5) an old-fashioned term for various filed documents in lawsuits or criminal prosecutions, which is falling into disuse.
Bill of exchange
n. a writing by a party (maker or drawer) ordering another (payor) to pay a certain amount to a third party (payee). It is the same as a draft. A bill of exchange drawn on a bank account is a “check.”
Bill of lading
n. a receipt obtained by the shipper of goods from the carrier (trucking company, railroad, ship or air freighter) for shipment to a particular buyer. It is a contract protecting the shipper by guaranteeing payment and satisfies the carrier that the recipient has proof of the right to the goods. The bill of lading is then sent to the buyer by the shipper upon payment for the goods, and is thus proof that the recipient is entitled to the goods when received. Thus, if there is no bill of lading, there is no delivery.
Bill of particulars
n. a written itemization of claims which a defendant in a lawsuit can demand of the plaintiff to find out what are the details of the claims. Thus, a general claim that defendant owes plaintiff $50,000 for goods delivered or damaged must be broken down so the defendant can understand and defend.
Bill of sale
n. a written statement attesting to the transfer (sale) of goods, possessions, or a business to a buyer. It is useful to show that the buyer now has ownership and to detail what was actually purchased. A bill of sale may accompany an agreement which states the agreed-upon terms of sale, including the date of transfer, the price, timing of payment and other provisions.
n. a written statement of the key terms of an agreement, in particular insurance policies, so that the insured as well as lenders can be assured there is valid and adequate insurance coverage.
The decisions of higher courts that set the legal standards for similar cases in lower courts within the same jurisdiction.
n. endorsement of a check or other negotiable paper without naming the person to whom it would be paid.
Blanket search warrant
An unconstitutionally broad authorization from a judge that allows the police to search multiple areas for evidence without specifying exactly what they are looking for.
n. state or local laws which prohibit certain activities, particularly entertainment, sports or drinking on Sunday, to honor the Christian Sabbath. They were employed in the New England colonies controlled by the puritans who kept the Sabbath sacred. “Blue” was slang for puritanical. In most cases blue laws have been repealed, but vestiges remain at least informally.
Blue ribbon jury
n. a jury selected from prominent, well-educated citizens, sometimes to investigate a particular problem such as civic corruption.
Blue sky laws
n. laws intended to protect the public from purchasing stock in fraudulent companies that lack substance, such as those selling swamp land, non-existent gold strikes and dry oil wells, or who have no assets besides a post office box. Blue sky laws require that corporations advertising and selling shares to the public must get approval from the state corporations commissioner and/or the Securities and Exchange Commission after providing details on financing and management. The term comes from the intent to prevent the existence of corporations that have nothing behind them but “blue sky.”
Board of directors
n. the policy managers of a corporation or organization elected by the shareholders or members. The board in turn chooses the officers of the corporation, sets basic policy, and is responsible to the shareholders. In small corporations there are usually only three directors. In larger corporations board members provide illustrious names, but the company is often run by the officers and middle-management who have the expertise.
Latin for “good faith,” it signifies honesty, the “real thing” and, in the case of a party claiming title as bona fide purchaser or holder, it indicates innocence or lack of knowledge of any fact that would cast doubt on the right to hold title.
Bona fide purchaser
n. commonly called BFP in legal and banking circles; a person who has purchased an asset (including a promissory note, bond or other negotiable instrument) for stated value, innocent of any fact which would cast doubt on the right of the seller to have sold it in good faith. This is vital if the true owner shows up to claim title, since the BFP will be able to keep the asset, and the real owner will have to look to the fraudulent seller for recompense.
n. 1) written evidence of debt issued by a company with the terms of payment spelled out. A bond differs from corporate shares of stock since bond payments are pre-determined and provide a final payoff date, while stock dividends vary depending on profitability and corporate decisions to distribute. There are two types of such bonds: “registered,” in which the name of the owner is recorded by the company and “bearer,” in which interest payments are made to whomever is holding the bond. 2) written guaranty or pledge which is purchased from a bonding company (usually an insurance firm) or by an individual as security (called a “bondsman”) to guarantee some form of performance, including showing up in court (“bail bond”), properly complete construction or other contract terms (“performance bond”), that the bonded party will not steal or mismanage funds, that a purchased article is the real thing, or that title is good. If there is a failure then the bonding company will make good up to the amount of the bond.
n. an account of a customer kept in a business ledger of debits and credits (charges and payments), which shows the amount due at any given time. This can provide a clear basis for suing for a debt.
n. a determination of the value of a corporation’s stock by adding up the stated value of corporate assets as shown on the books (records) of a corporation and deducting all the liabilities (debts) of the corporation. This may not be the true value of the corporation or its shares since the assets may be under- or over-valued.
n. a mortgage contract in which a ship and/or its freight is pledged as security for a loan for equipment, repair, or use of a vessel. The contract is generally called a “bottomry bond.” If the loan is not paid back, the lender can sell the ship and/or its freight.
1) n. literally, a break. A breach may be a failure to perform a contract (breaking its terms), failure to do one’s duty (breach of duty, or breach of trust), causing a disturbance, threatening, or other violent acts which break public tranquility (breach of peace), illegally entering property (breach of close), not telling the truth-knowingly or innocently-about title to property (breach of warranty), or, in past times, refusal to honor a promise to marry (breach of promise). 2) v. the act of failing to perform one’s agreement, breaking one’s word, or otherwise actively violating one’s duty to other.
Breach of contract
n. failing to perform any term of a contract, written or oral, without a legitimate legal excuse. This may include not completing a job, not paying in full or on time, failure to deliver all the goods, substituting inferior or significantly different goods, not providing a bond when required, being late without excuse, or any act which shows the party will not complete the work (“anticipatory breach”). Breach of contract is one of the most common causes of law suits for damages and/or court-ordered “specific performance” of the contract.
Breach of trust
n. 1) any act which is in violation of the duties of a trustee or of the terms of a trust. Such a breach need not be intentional or with malice, but can be due to negligence. 2) breaking a promise or confidence.
Breach of warranty
n. determination that a statement as to title of property, including real property or any goods, is proved to be untrue, whether intended as a falsehood or not. It can also apply to an assurance of quality of a product or item sold. The party making the warranty is liable to the party to whom the guarantee was made. In modern law the warranty need not be expressed in so many words, but may be implied from the circumstances or surrounding language at the time of sale.
A document used to submit a legal contention or argument to a court. A brief typically sets out the facts of the case and a party’s argument as to why she should prevail. These arguments must be supported by legal authority and precedent, such as statutes, regulations and previous court decisions. Although it is usually possible to submit a brief to a trial court (called a trial brief), briefs are most commonly used as a central part of the appeal process (an appellate brief). But don’t be fooled by the name — briefs are usually anything but brief.
n. in general, a person who arranges contracts between a buyer and seller for a commission (a percentage of the sales price). These include real estate brokers (who have responsibility over an agency and its sales agents as well as their own conduct), insurance brokers (handling more than one company rather than being an agent for just a single carrier), and stockbrokers, who are the upper-level of stock salespersons and/or the operators of brokerage houses. Brokers in the more technical fields (as above) are regulated and licensed by each state and have a “fiduciary” duty to act in the best interests of the customer. Consumers should investigate whether the broker is representing the customer’s best interest or just wants to make a sale. A “pawnbroker” is a lender for items left for security (“hocked”) at high rates.
n. the sale of all or a large part of a merchant’s stock as well as equipment. This generally applies to retailers, restaurants, and other businesses with inventories.
Bulk sales law
A law that regulates the transfer of business assets so that business owners cannot dispose of assets in order to avoid creditors. If a business owner wants to conduct a bulk sale of business assets — that is, get rid of an unusually large amount of inventory, merchandise or equipment — the business owner must typically publish a notice of the sale and give written notice to creditors. Then, the owner must set up an account to hold the funds from the sale for a brief period of time during which creditors may make claims against the money. The prohibition against bulk sales is spelled out in the Uniform Commercial Code — and laws modeled on the UCC have been generally adopted throughout the country.
Burden of proof
A party’s job of convincing the decisionmaker in a trial that the party’s version of the facts is true. In a civil trial, it means that the plaintiff must convince the judge or jury “by a preponderance of the evidence” that the plaintiff’s version is true — that is, over 50% of the believable evidence is in the plaintiff’s favor. In a criminal case, because a person’s liberty is at stake, the government has a harder job, and must convince the judge or jury beyond a reasonable doubt that the defendant is guilty. A rule of evidence that makes a person prove a certain thing or the contrary will be assumed by the court.
n. the crime of breaking and entering into a structure for the purpose of committing a crime. No great force is needed (pushing open a door or slipping through an open window is sufficient) if the entry is unauthorized. Contrary to common belief, a burglary is not necessarily for theft. It can apply to any crime, such as assault or sexual harassment, whether the intended criminal act is committed or not. Originally under English common law burglary was limited to entry in residences at night, but it has been expanded to all criminal entries into any building, or even into a vehicle.
n. any activity or enterprise entered into for profit. It does not mean it is a company, a corporation, partnership, or has any such formal organization, but it can range from a street peddler to General Motors. It is sometimes significant to determine if an accident, visit, travel, meal or other activity was part of “business” or for pleasure or no particular purpose.
n. a person entering commercial premises for the purpose of doing business, rather than just taking a short cut to the next street. It is important since a business is liable to a business invitee for injury caused by dangerous conditions such as bad floors or oil on the linoleum. There is a presumption that anyone entering a retail store or restaurant in which one may browse is a business invitee unless there is evidence to the contrary.
Business records exception
An exception to the hearsay rule, which allows a business document to be admitted into evidence if a proper foundation is laid to show it is reliable.
But for rule
n. one of several tests to determine if a defendant is responsible for a particular happening. In this test, was there any other cause, or would it have occurred “but for” the defendant’s actions? Example: “But for” defendant Drivewild’s speeding, the car would not have gone out of control, and therefore the defendant is responsible. This is shorthand for whether the action was the “proximate cause” of the damage.
n. a contract among the owners of a business which provides terms for their purchase of a withdrawing partner’s or stockholder’s interest in the enterprise.
n. the written rules for conduct of a corporation, association, partnership or any organization. They should not be confused with the articles of incorporation, which only state the basic outline of the company, including stock structure. Bylaws generally provide for meetings, elections of a board of directors and officers, filling vacancies, notices, types and duties of officers, committees, assessments and other routine conduct. Bylaws are in effect a contract among members and must be formally adopted and/or amended. The bylaws also set out the duties and powers of a corporation’s officers.
A trust designed to lessen a family’s overall estate tax liability. An AB trust is the most popular kind of bypass trust.