An agreement that can be enforced in court; formed by two or more competent parties who agree, for consideration, to perform or to refrain from performing some legal act now or in the future.
objective theory of contracts
A theory under which the intent to form a contract will be judged by outward, objective facts (what the party said when entering into the contract, how the party acted or appeared, and the circumstances surrounding the transaction) as interpreted by a reasonable person, rather than by the party's own secret, subjective intentions.
A type of contract that arises when a promise is given in exchange for a return promise.
A contract that results when an offer can be accepted only by the offeree's performance.
A contract that by law requires a specific form for its validity. Negotiable instruments and letters of credit are examples of formal contracts.
A contract in which the terms of the agreement are stated in words, oral or written.
A contract formed in whole or in part from the conduct of the parties (as opposed to an express contract).
A contract that results when the elements necessary for contract formation (agreement, consideration, contractual capacity, and legal purpose) are present.
A contract that may be legally avoided (cancelled or annulled) at the option of one or both of the parties.
A meeting of two or more minds in regard to the terms of a contract, usually broken down into two events: an offer and an acceptance.
In contract law, the withdrawal of an offer by an offeror; unless the offer is irrevocable, it can be revoked at any time prior to acceptance without liability.
An offeree's response to an offer in which the offeree rejects the original offer and at the same time makes a new offer.
mirror image rule
A common law rule that requires that the terms of the offeree's acceptance adhere exactly to the terms of the offeror's offer for a valid contract to be formed.
A doctrine that applies when a promisor makes a clear and definite promise on which the promisee justifiably relies; such a promise is binding is justice will be better served by the enforcement of the promise.
A voluntary act by the offeree that shows assent, or agreement, to the terms of an offer; may consist of words or conduct.
A rule providing that an acceptance of an offer becomes effective on dispatch (on being placed in an official mailbox), if mail is expressly or impliedly an authorized means of communication of acceptance of the offer.
Generally, the value given in return for a promise. The consideration must be something of legally sufficient value, and there must be a bargained-for exchange.
covenant not to compete
A contractual promise of one party to refrain from conducting business similar to that of another party for a certain period of time and within a specified geographic area. Courts commonly enforce such covenants if they are reasonable in terms of time and geographic area and are part of, or supplemental to, a contract for the sale of a business.
A term used to describe a contract or clause that is void on the basis of public policy because one party, as a result of disproportionate bargaining power, is forced to accept terms that are unfairly burdensome and that unfairly benefit the dominant party.
A "standard-form" contract, such as that between a large retailer and a consumer, in which the dominant party dictates the terms.
A provision that releases a contractual party from liability in the event of monetary
A crime that occurs online, in the virtual community of the Internet, as opposed to the physical world.
A wrong against society proclaimed in a statute and punishable by society through fines and/or imprisonment-or in some cases, death.
beyond a reasonable doubt
The standard of proof used in criminal cases. If there is any reasonable doubt that a criminal defendant committed the crime with which he or she has been charged, then the verdict must be "not guilty."
A guilty (prohibited) act. The commission of a prohibited act is one of the two essential elements required for criminal liability, the other element being the intent to commit a crime.
Mental state, or intent. A wrongful mental state is as necessary as a wrongful act to establish criminal liability. What constitutes a mental state varies according to the wrongful action. Thus, for murder, the mens rea is the intent to take a life.
The act of forcefully and unlawfully taking cash, personal property, or any other article of value from another. Force or intimidation is usually necessary for an act of theft to be considered robbery.
The act of unlawfully entering or breaking into a building with the intent to commit a felony. (Some states statutes expand this to include the intent to commit any crime.)
The wrongful taking and carrying away of another person's personal property with the intent to permanently deprive the owner of the property. Some states classify larceny as either grand or petit, depending on the property's value.
The intentional burning of a building owned by another. Some statutes have expanded this to include and real property regardless of ownership and the destruction of property by other means - for example, by explosion.
The fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another.
Nonviolent crime committed by individuals or corporations to obtain a personal or business advantage.
The fraudulent appropriation of funds or other property by a person to whom the funds or property has been entrusted.
The purchase or sale of securities on the basis of inside information (information that has not been made available to the public.
Falsely reporting income that has been obtained through criminal activity as income obtained through a legitimate business enterprise-in effect, "laundering" the "dirty money."
A crime - such as arson, murder, rape, or robbery - that carries the most severe sanctions, ranging from on year in a state or federal prison to the death penalty.
A lesser crime than a felony, punishable by a fine or incarceration in jail for up to one year.
In criminal law, the least serious kind of criminal offense, such as a traffic or building-code violation.
Unlawful pressure brought to bear on a person, causing the person to perform an act that she or he would not otherwise perform.
The legally recognized privilege to protect oneself or one's property against injury by another. The privilege of self-defense usually applies only to acts that are reasonably necessary to protect oneself, one's property, or another person.
In criminal law, a defense in which the defendant claims that he or she was induced by a public official - usually an undercover agent or police officer - to commit a crime that he or she would otherwise not have committed.
The giving of testimony that may subject the testifier to criminal prosecution. The Fifth Amendment to the Constitution protects against self-incrimination by providing that no person "shall be compelled in any criminal case to be a witness against himself."
The process by which a criminal defendant and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case, subject to court approval; usually involves the defendant's pleading guilty to a lesser offense in return for a lighter sentence.
An order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property.
A situation occurring when a person is tried twice for the same criminal offense; prohibited by the Fifth Amendment to the Constitution.
In criminal procedure, a rule under which any evidence that is obtained in violation of the accused's constitutional rights guaranteed by the Fourth, Fifth and Sixth Amendments, as well as any evidence derived from illegally obtained evidence, will not be admissible in court.
A group of citizens called to decide, after hearing the state's evidence, whether a reasonable basis (probable cause) exists for believing that a crime has been committed and that a trial ought to be held.
A formal accusation or complaint (without an indictment) issued in certain types of actions (usually criminal actions involving lesser crimes) by a government prosecutor.
Any act that is directed against computers and computer parts, that uses computers as instruments of crime, or that involves computers and constitutes abuse.
The act of stealing another's identifying information - such as a name, date of birth, or Social Security number - and using that information to access the victim's financial resources.
A person who uses one computer to break into another. Professional computer programmers refer to such persons as "crackers."
A hacker whose purpose is to exploit a target computer for a serious impact, such as corrupting a program to sabotage a business.
Liability regardless of fault. Strict liability may be imposed in cases involving abnormally dangerous activities, dangerous animals, or defective products.
The legal liability of manufacturers, sellers, and lessors of goods to consumers, users, and bystanders for injuries or damages that are caused by the goods.
unreasonably dangerous product
In product liability law, a product that is defective to the point of threatening a consumer's health and safety. A product will be considered unreasonably dangerous if it is dangerous beyond the expectation of the ordinary consumer or if a less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it.
Liability shared among all firms that manufactured and distributed a particular product during a certain period of time in proportion to the firms' respective shares of the market. Only some jurisdictions apply this theory and only when the true source of the harmful product is unidentifiable.
statute of repose
Basically, a statute of limitations that is not dependent on the happening of a cause of action. Statutes of repose generally begin to run at an earlier date and run for a longer period of time than statutes of limitations.
Federal form of government
A system of government in which the states form a union and the sovereign power is divided between the central government and the member states.
Checks and balances
The principle under which the powers of the national government are divided among three separate branches - the executive, legislative, and judicial branches - each of which exercises a check on the actions of the others.
The provision in Article I, Section 8, of the US Constitution that gives Congress the power to regulate interstate commerce.
Powers possessed by the states as part of their inherent sovereignty. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare.
The clause in Article VI of the Constitution that provides that the Constitution, laws, and treaties of the United States are "the supreme Law of the Land." Under this clause, state and local laws that directly conflict with federal law will be rendered invalid.
A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.
Nonverbal expressions of beliefs. Symbolic speech, which includes gestures, movements , and articles of clothing, is given substantial protection by the courts.
A computer program that is designed to block access to certain Web sites based on their content. The software blocks the retrieval of a site whose URL or key words are on a list within the program.
A key word in a document that can serve as an index reference to the document. On the Web, search engines return results based, in part, on the tags in Web documents.
The provision in the First Amendment to the Constitution that prohibits the government from establishing any state-sponsored religion or enacting any law that promotes religion or favors one religion over another.
Free exercise clause
The provision in the First Amendment to the Constitution that prohibits the government from interfering with people's religion practices or forms of worship.
An order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property.
Due process clause
The provisions in the 5th and 14th Amendments to the Constitution that guarantee that no person shall be deprived of life, liberty, or property without due process of law. Similar clauses are found in most state constitutions.
Equal protection clause
The provision in the 14th Amendment to the Constitution that guarantees that no state will "deny to any person within its jurisdiction the equal protection of the laws." This clause mandates that the state governments must treat similarly situated individuals in a similar manner.
The process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch.
Long arm statute
A state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have certain "minimum contacts" with that state for the statute to apply.
A state court of limited jurisdiction that conducts proceeding relating to the settlement of a deceased person's estate.
A federal court of limited jurisdiction that handles only bankruptcy proceedings, which are governed by federal bankruptcy law.
A question that pertains to the US Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.
Diversity of Citizenship
Under Article III, Section 2, of the US Constitution, a basis for federal district court jurisdiction over a lawsuit between: Citizens of different states, A foreign country and citizens of a state or of different states or, Citizens of a state and citizens or subjects of a foreign country. The amount in controversy must be more than $75,000 before a federal district court can take jurisdiction in such cases.
Jurisdiction that exists when two different courts have the power to hear a case. For example, some cases can be heard in a federal or a state court.
Jurisdiction that exists when a case can be heard only in a particular court or type of court.
Standing to sue
The requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. The plaintiff must demonstrate that he or she has been either injured or threatened with injury.
A controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfied before a court will hear a case.
Small claims court
A special court in which parties may litigate small claims (such as $5,000 or less). Attorneys are not required in small claims courts and, in some states, are not allowed to represent the parties.
Question of fact
In a lawsuit, an issue that involves not only disputed facts, and not what the law is on a given point. Questions of fact are decided by the jury in a jury trial (by the judge if there is no jury).
Question of law
In a lawsuit, an issue involving the application or interpretation of a law. Only a judge, not a jury, can rule on questions of law.
Rule of four
A rule of the United States Supreme Court under which the Court will not issue a writ of certiorari unless at least four justices approve of the decision to issue the writ.
Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation. The complaint and answer are part of the pleadings.
This pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.
A document informing a defendant that a legal action has been commenced against him or her and that the defendant must appear in court on a certain date to answer the plaintiff's complaint. The document is delivered by a sheriff or any other person so authorized.
A judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim.
A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff.
Motion to dismiss
A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed. Although the defendant normally is the party requesting a dismissal, either the plaintiff or the court can also make a motion to dismiss the case.
Motion for judgment on the pleadings
A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.
Motion for summary judgment
A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute.
A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.
A series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath.
Evidence that consists of computer-generated or electronically recorded information, including email, voicemail, spreadsheets, word-processing documents, and other data.
Old French phrase meaning "to speak the truth." In legal language, the phrase refers to the process in which the attorneys question prospective jurors to learn about their backgrounds, attitudes, biases, and other characteristics that may affect their ability to serve as impartial jurors.
Motion for a directed verdict
In a jury trial, a motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party who filed the motion on the ground that the other party has not produced sufficient evidence to support his or her claim.
In litigation, the amount of monetary compensation awarded to a plaintiff in a civil lawsuit as damages. In the context of alternative dispute resolution, the decision rendered by an arbitrator.
Motion for judgment n.o.v.
A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury's verdict against him of her was unreasonable and erroneous.
Motion for a new trial
A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice.
A formal legal document prepared by a party's attorney (in answer to the appellant's brief) and submitted by an appellate court when a case is appealed. The appellant's brief outlines the facts and issues of the case, the judge's rulings or jury's findings that should be reversed or modified, the applicable law, and the arguments on the client's behalf.
Alternative dispute resolution (ADR)
The resolution of disputes in ways other than those involved in the traditional judicial process. Negotiation, mediation, and arbitration are forms of ADR.
A process in which parties attempt to settle their dispute informally, with or without attorneys to represent them.
A method of settling disputes outside of court by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement.
The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision that is (most often) legally binding.
A clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court.
Summary jury trials (SJT)
A method of settling disputes, used in many federal courts, in which a trial is held, but the jury's verdict is not binding. The verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that immediately follow the summary jury trial.
Online dispute resolution (ODR)
The resolution of disputes with the assistance of organizations that offer dispute-resolution services via the internet.
Ethics in a business context; a consensus as to what constitutes right or wrong behavior in the world of business and the application of moral principles to situations that arise in a business setting.
A reasoning process in which an individual links his or her moral convictions or ethical standards to the particular situation at hand.
A concept developed by the philosopher Immanuel Kent as an ethical guideline for behavior. In deciding whether an action is right or wrong, or desirable or undesirable, a person should evaluate the action in terms of what would happen if everybody else in the same situation, or category, acted the same way.
Principle of rights
The principle that human beings have certain fundamental rights (to life, freedom, and the pursuit of happiness, for example). Those who adhere to this "rights theory" believe that a key factor in determining whether a business decision is ethical is how that decision affects the rights of various groups. These groups include the firm's owners, its employees, the consumers of its products or services, its suppliers, the community in which it does business, and society as a whole.
An approach to ethical reasoning that evaluates behavior in light of the consequences of that behavior for those who will be affected by it, rather than on the basis of any absolute ethical or moral values. In utilitarian reasoning, a "good" decision is one that results in the greatest good for the greatest number of people affected by the decision.
A decision-making technique that involves weighing the costs of a given action against the benefits of that action.
Corporate social responsibility
The idea that corporations can and should act ethically and be accountable to society for their actions.
The minimum degree of ethical behavior expected of a business firm, which is usually defined as compliance with the law.
The practice of marking a document with a date that precedes the actual date. Persons who backdate stock options are picking a date when the stock was trading at a lower price than the date of the options grant.
A body of enforceable rules governing relationships among individuals and between individuals and their society.
The belief that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature. The natural law school is the oldest and one of the most significant schools of legal thought.
A school of legal thought centered on the assumption that there is no law higher than the laws created by a national government. Laws must be obeyed, even if they are unjust, to prevent anarchy.
A school of legal thought that emphasizes the evolutionary process of law and looks to the past to discover what the principles of contemporary law should be.
A school of legal thought in the 1920s and 1930s that generally advocated a less abstract and more realistic approach to the law, an approach that takes into account customary practices and the circumstances in which transactions take place. This school left a lasting imprint on American jurisprudence.
A school of legal thought that views the law as a tool for promoting justice in society
Primary source of law
A document that establishes the law on a particular issue, such as a constitution, a statute, and administrative rule, or a court decision.
Secondary source of law
A publication that summarizes or interprets the law, such as a legal encyclopedia, a legal treatise, or an article in a law review.
The body of law derived from the US Constitution and the constitutions of the various states
The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law).
A reference to a publication in which a legal authority - such as a statute or a court decision - or other source can be found.
A regulation enacted by a city or county legislative body to govern matters not covered by state or federal law.
A model law created by the National Conference of Commissioners on Uniform State Laws and/or the American Law Institute for the states to consider adopting. If a state adopts the law, it becomes statutory law in that state. Each state has the option of adopting or rejecting all or part of a uniform law.
The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.
A federal or state government agency established to perform a specific function. Administrative agencies are authorized by legislative acts to make and enforce rules in order to administer and enforce the acts.
An administrative agency within the executive branch of government. At the federal level, executive agencies are those within the cabinet departments.
Independent regulatory agency
An administrative agency that is not considered part of the government's executive branch and is not subject to the authority of the president. Independent agency officials cannot be removed without cause.
A statute enacted by Congress that authorizes the creation of an administrative agency and specifies the name, composition, purpose, and powers of the agency being created.
To render a judicial decision. In the administrative process, adjudication is the trial-like proceeding in which an administrative law judge hears and decides issues that arise when an administrative agency charges a person or a firm with violating a law or regulation enforced by the agency.
The process undertaken by an administrative agency when formally adopting a new regulation or amending an old one. Rulemaking involves notifying the public of a proposed rule or change and receiving and considering the public's comments.
Administrative Law Judge (ALJ)
One who presides over an administrative agency hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact.
The rules of law announced in court decisions. Case law includes the aggregate of reported cases that interpret judicial precedents, statutes, regulations, and constitutional provisions.
The body of law developed from custom or judicial decisions in English and US courts, not attributable to a legislature.
A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts.
A common law doctrine under which judges are obligated to follow the precedents established in prior decisions
Any source of law that a court must follow when deciding a case. Binding authorities include constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction.
Any legal authority or source of law that a court may look to for guidance but on which it need not rely in making its decision. Persuasive authorities include cases from other jurisdictions and secondary sources of law.
The relief given to an innocent party to enforce a right or compensate for the violation of a right.
Equitable principles and maxims
General propositions or principles of law that have to do with fairness (equity).
Statute of limitations
A federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced.
Law that establishes the methods of enforcing the rights established by substantive law.
An informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the Internet.
The branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters.
Civil law system
A system of law derived from that of the Roman Empire and based on a code rather than case law; the predominant system of law in the nations of continental Europe and the nations that were once their colonies. In the United States, Louisiana, because of its historical ties to France, has in part a civil law system.
Law that defines and governs actions that constitute crimes. Generally, criminal law has to do with wrongful actions committed against society for which society demands redress.
The law that governs relations among nations. National laws, customs, treaties, and international conferences and organizations are generally considered to be the most important sources of international law.
Knowledge of, and genuine assent to, the terms of a contract. If a contract is formed as a result of a mistake, misrepresentation, undue influence, or duress, voluntary consent is lacking, and the contract will be voidable.
Knowledge by the misrepresenting party that material facts have been falsely represented or omitted with an intent to deceive.
Statute of Frauds
A state statute under which certain types of contracts must be in writing to be enforceable.
The transfer of a contractual duty to a third party. The party delegating the duty to the third party is still obliged to perform on the contract should the delegatee fail to perform.
Third Party Beneficiary
One for whose benefit a promise is made in a contract but who is not a party to the contract.
A third party for whose benefit a contract is formed. An intended beneficiary can sue the promisor if such a contract is breached.
A third party who incidentally benefits from a contract but whose benefit was not the reason the contract was formed; an incidental beneficiary has no rights in a contract and cannot sue to have the contract enforced.
The termination of an obligation. In contract law, discharge occurs when the parties have fully performed their contractual obligations or when events, conduct of the parties, or operation of law releases the parties from performance
in contract law, the fulfillment of one's duties arising under a contract with another; the normal way of discharging one's contractual obligations
A qualification, provision, or clause in a contractual agreement, the occurrence or nonoccurence of which creates, suspends, or terminates the obligations of the contracting parties
In a contractual agreement, a condition that must be met before a party's promise becomes absolute.
An unconditional offer to perform an obligation by a person who is ready, willing, and able to do so.
Breach of Contract
The failure, without legal excuse, of a promisor to perform the obligations of a contract.
An assertion or action by a party indicating that he or she will not perform an obligation that the party is contractually obligated to perform at a future time.
an agreement between the parties to cancel their contract, releasing the parties from further obligations under the contract. The object of the agreement is to restore the parties to the positions they would have occupied had no contract ever been formed.
The substitution, by agreement, of a new contract for an old one, with the rights under the old one being terminated. Typically, there is a substitution of a new person who is responsible for the contract and the removal of an original party's rights and duties under the contract.
Impossibility of Performance
A doctrine under which a party to a contract is relieved of her or his duty to perform when performance becomes objectively impossibly or totally impracticable (through no fault of either party).
a doctrine under which a court might excuse the parties from performing a contract when the performance becomes much more difficult or costly due to an event that the parties did not foresee or anticipate at the time the contract was made