Daniel Oran - Oran's Dictionary of the Law

228 High-low settlement

farm land inside an urban area might say that its highest and best use is an office complex and, thus, that the land should be valued more highly for tax purposes.

High-low settlement An agreement that if the jury awards below a certain minimum amount of damages, the defendant will pay that minimum amount, and if the jury awards above a certain maximum, the defendant will pay that maximum. In between, the defendant pays the jury award.

Hijack Take over a vehicle or plane by illegal force, threat of force, or theft.

Hire-purchase See lease-purchase.

Hit and run law A law that requires a motorist involved in an accident to stop and give identification and other information to others involved in the accident and to the police.

Hitherto An unnecessarily formal word that means “in the past” or “until now.”

Hobbs Act See Anti-Racketeering Act.

Hobby loss A nondeductible loss from a hobby, rather than a deductible loss from a business activity. Under federal tax law, an activity is presumed to be a hobby unless the activity made a profit in two of the last five years.

Hoc (Latin) This.

Hodgepodge See hotchpot.

Hold 1. To possess or own something lawfully and by good title. 2. To decide. A judge who decides how law applies to a case or “declares conclusions of law” is said to “hold that. . . .” 3. Conduct or have take place; for example, to “hold court.”

Hold harmless Agree to pay certain claims that might come up against another person.

Hold over 1. Keep possession as a tenant after the lease period ends. 2. Stay in office after the term of office is up.

Hold (or held) self out Claim you have a legal status (usually without having it) or act as if you have it. “She held herself out as the homeowner, but she was a renter.”

Holdback A percentage of the amount owed under a contract that is retained until all work is satisfactorily completed and, in the case of construction work, until it is certain that there are no mechanic’s liens.

Holder A person who has legally received possession of a negotiable instrument (see that word), such as a check, and who is entitled to get payment on it.

Home relief 229

Holder in due course A holder (see that word) who buys a negotiable instrument thinking that it is valid, and having no knowledge that any business involving it is “shady.” The Uniform Commercial Code defines it as “a holder who takes the instrument for value, in good faith and without notice that it is overdue or has been dishonored or of any defense against or claim to it.” But this definition is limited to the “usual course of business” and does not normally apply to judicial sales, inheritance, etc. A holder in due course has more rights than a mere holder. For example, except in consumer sales and credit, a holder in due course cannot be sued for defective goods by a buyer of merchandise involving the negotiable instrument.

Holding The core of a judge’s decision in a case. It is that part of the judge’s written opinion that applies the law to the facts of the case and about which can be said “the case means no more and no less than this.” When later cases rely on a case as precedent, it is only the holding that should be used to establish the precedent. A holding may be less than the judge said it was. If the judge made broad, general statements, the holding is limited to only that part of the generalizations that directly apply to the facts of that particular case. Contrast dicta.

Holding company A company that exists primarily to control other companies by owning their stock. A personal holding company is formed by a few persons and is subject to a special federal income tax.

Holding period The length of time a capital asset is owned. Federal tax law categorizes certain assets as short-term or long-term depending on the length of the holding period.

Holograph A will, deed, or other legal document that is entirely in the handwriting of the signer. Some states require a holographic will to be signed, witnessed, and in compliance with other formalities before it is valid. Other states require less.

Homeowners policy A standard type of insurance that insures a home against losses due to fire, water, theft, liability, etc.

Homeowners warranty A warranty/insurance program that protects a home buyer against loss due to major defects for a set time period.

Home port doctrine 1. The general rule that a ship in interstate or foreign commerce may be taxed only in its home port. 2. The general rule that a provider of repairs for a ship anywhere other than in the home port can get a lien for these repairs, but in the home port, local law decides whether a lien is allowed.

Home relief See general assistance.

230 Home rule

Home rule Local self-government.

Homestead exemption State laws allowing a head of a family to keep a home and some property safe from creditors other than mortgage holders, or to allow certain persons (such as those over a certain age) to avoid paying real estate or inheritance taxes on their homes.

Homicide Killing another person (not necessarily a crime). Justifiable homicide is the rightful killing of another person, such as in time of war or in self-defense. Excusable homicide is the wrongful killing of another person that is not a crime, such as when a defendant is found “not guilty by reason of insanity.” Two types of criminal homicide are murder and manslaughter.

Homo (Latin) A man; a human being. Homologation 1. Approval by a court. 2. Estoppel.

Hon Short for “honorable,” often placed before a judge’s name.

Honor To accept (or pay) a negotiable instrument, such as a check, when it is properly presented for acceptance (or payment).

Honorarium A free gift; a free payment as opposed to a payment for services. But merely calling a payment (for example, for a speech) an honorarium does not necessarily make it nontaxable.

Honorary trust A trust that gets no special tax advantages, but is not quite a private, ordinary trust; for example, a trust set up to “feed the pigeons in Clark Park.” Some states allow these trusts, but most do not.

Horizontal merger One company acquiring another that produces the same or similar products for sale or has a similar type and level of operation in the same geographic area.

Horizontal price fixing An agreement among competing producers, wholesalers, or merchants to set the price of goods. These agreements are prohibited by law.

Horizontal property acts Laws dealing with cooperative housing or condominiums.

Hornbook A book summarizing the basic principles of one legal subject, usually for law students. For hornbook law, see black letter law.

Hose and spray An expression for the power of some trustees to decide how much each person named in a will should get.

Hostile environment A workplace in which an employer permits regular intimidating or offensive words or actions based on sex, race, religion, etc.; for example, the sexual harassment that exists if repeated sexual jokes make it difficult for a woman to perform her job.

Hung jury 231

Hostile fire A fire that either escapes from where it was contained or a fire that was never intended to exist at all.

Hostile possession Claiming ownership of land against the whole world (including the person whose name appears on the land records as owner), but not necessarily in an angry, aggressive, or emotionally “hostile” way. It is a part of adverse possession.

Hostile witness A witness called by one side in a trial who shows so much prejudice or hostility to that side that he or she can be treated as if called by the other side.

Hot blood See heat of passion.

Hot cargo 1. Goods produced or handled by an employer with whom a union has a labor dispute. “Hot cargo agreements,” in which a company promises to put pressure on another company with which a union has a dispute, are now illegal. 2. Stolen goods.

Hot pursuit See fresh pursuit rule.

Hotchpot Combining properties belonging to different persons to redistribute them fairly, especially the practice of counting in any advancement (see that word) when dividing a decedent’s estate.

House 1. One of the branches of a legislature; either the “upper house” (for example, the British House of Lords) or the “lower house” (for example, the British House of Commons). 2. The lower chamber of a two-part legislature. For example, “the House” is short for the U.S.

House of Representatives.

House arrest Requiring a person accused or convicted of a crime to remain home for all but certain approved purposes, such as work or medical care.

House counsel A lawyer who is an employee of a business and does its day-to-day legal work.

House of Representatives 1. The lower house of the U.S. Congress, with members elected according to state population to two-year terms. 2. The name for the lower chamber of certain legislatures, including those of several states.

Housebreaking Breaking into and entering a house to commit a crime. Some states call it burglary if done at night.

Household A family (see that word) living together (plus, sometimes, servants or others living with the family).

Humanitarian doctrine See last clear chance doctrine.

Hung jury A jury that cannot reach a verdict (decision) because of disagreement among jurors.

232 Hurdle rate

Hurdle rate The minimum acceptable rate of profit expected on a project for it to be started. See opportunity cost.

Husband-wife privilege See marital communications privilege.

Hybrid security A cross between an equity security (such as a stock) and a debt security (such as a bond).

Hybrid state (or hybrid theory jurisdiction) Any state in which a mortgage is considered a cross between a lien and a transfer of title.

In a hybrid state the creditor must use foreclosure to force the sale or return of a mortgaged property when payments fall behind or stop. In a hybrid state, a mortgage may take the form of a deed of trust, by which a trustee holds legal title as security for repayment of the debt incurred in the purchase of real estate.

Hypertext A direct link from information in a computerized document to information elsewhere.

Hypothecate 1. To pledge or mortgage a thing without turning it over to the person making the loan. 2. Securing repayment of a loan by holding the stock, bonds, etc., of the debtor until the debt is paid, with the power to sell them if it is not paid.

Hypothesis A theory or working assumption, especially one that is to be tested by experiment or observation.

Hypothetical question Posing a hypothetical question involves setting up a series of facts, assuming that they are true, and asking for an answer to a question based on those facts. In a trial, hypothetical questions may be asked of expert witnesses only. For example, a gun expert might be asked “If this gun had a silencer, could a shot be heard from a hundred feet away?”

234 Idiopathic

Idiopathic Caused by a person’s infirmity, disease, or personal condition, rather than by the person’s employment or by unexplained outside causes.

Ignoramus (Latin) “We are ignorant (of a reason).” The formal words that used to be said by a grand jury that failed to find a reason to charge someone with a crime. Now they say “no bill,” “not found,” or something similar.

Ignorantia legis neminem excusat (Latin) Ignorance of the law is no excuse.

Illegal Contrary to the criminal law; breaking a law (not merely improper, a tort, or civilly wrong).

Illegal entry 1. A foreigner is guilty of illegal entry into the U.S. if he or she comes in at the wrong time or place, avoids examination by immigration officials, or gets in by fraud. 2. Entering a building with the intent to commit a crime.

Illegal purpose doctrine The rule that an otherwise legal act is illegal if done to further an illegal purpose. This rule is constitutional only in certain limited situations.

Illegally obtained evidence Evidence obtained by violating a person’s constitutional or statutory rights; for example, by searching without a warrant, with a legally defective warrant, or with no probable cause to arrest and search. This evidence cannot be used in a criminal trial. See exclusionary rule and fruit of the poisonous tree doctrine.

Illegitimate 1. Contrary to law; lacking legal authorization. 2. Describes a child born to an unmarried mother. The law in many states is changing as to who may be defined as illegitimate, as to inheritance and other rights of illegitimate children, and as to use of the word itself.

Illicit Prohibited; unlawful. [pronounce: il-liss-it]

Illusory promise A statement that looks like a promise that could make a contract, but, upon close examination of the words, promises nothing real or legally binding.

Imagination test The principle that the more that consumer imagination, thought, or perception is needed to associate a trademark (or service mark) with a particular product (or service), the stronger the mark is and the more it will be protected against infringement.

Imbargo See embargo. Imbezzle See embezzlement.

Imitation Something made intentionally to resemble something else. In trademark law, if a use of words, letters, signs, etc., is close enough to a trademark to fool much of the general public (not necessarily

Immunity 235

when placed side by side, but when there is no chance to compare the two), it is an imitation and usually forbidden.

Immaterial Not necessary; not important; without weight; trivial.

Immediate 1. Close, closest, or touching, depending on the context, when referring to distance. 2. As fast as (reasonably) possible, when referring to time. Immediately does not usually mean instantly.

Immediate cause 1. The last event in a series of events, which, without any further events, produced the result in question. 2. Proximate cause.

Immediate issue Children.

Immemorial See time immemorial.

Immigrant 1. A foreigner who comes into a country. 2. A foreigner who comes into a country with the intention of living there permanently. 3. In U.S. law, a foreigner who comes to the U.S. to live permanently and who meets several specific requirements of the Immigration and Naturalization Act.

Immigration and Naturalization Service A U.S. government agency that handles the admission, naturalization, and deportation of foreigners. It is also responsible for preventing the illegal entry of aliens. The Immigration Appeals Board handles mostly appeals from deportation orders.

Imminent Just about to happen; threatening; not “eminent.” The imminent peril doctrine is the emergency doctrine.

Immoral A vague word that can mean anything from “contrary to the accepted conduct of one religious sect” to “flagrant and shameless disregard for the welfare of the community or the opinions of most of its members” to “violating community standards as expressed by law.” For a contract to be invalid or void due to immoral consideration or for a lawyer to be disbarred due to immoral conduct, immorality usually means serious illegality.

Immovables Land and things naturally and permanently a part of the land.

Immunity 1. An exemption from a legally imposed duty, freedom from a duty, or freedom from a penalty. See also privilege. 2. The freedom from prosecution (based on anything the witness says) that is given by the government to a witness who is forced to testify in a trial, before a grand jury, before a legislature, etc. Transactional immunity, the broadest form, is freedom from prosecution for all crimes related to the compelled testimony, so long as the witness tells the truth. Use immunity, less broad, is freedom from prosecution based on the

236 Impact rule

compelled testimony and on anything the government learns from following up on the testimony. Testimonial immunity, the narrowest form, is freedom from prosecution based on the compelled testimony only. 3. The freedom of a national, state, or local government from all taxes and from most tort lawsuits. See government instrumentality doctrine and sovereign immunity. 4. The freedom of national, state, and local government officials from prosecution for, or arrest during, most official acts, and their freedom from most tort lawsuits resulting from their official duties. See also diplomatic immunity.

Impact rule The rule (used today in very few states) that damages for emotional distress cannot be had in a negligence lawsuit unless there is some physical contact or impact.

Impair Weaken, make worse, lessen, or otherwise hurt.

Impanel Make up a list of possible jurors for a trial or select those who will actually serve.

Imparl Delay proceedings in a lawsuit so that the two sides can discuss settlement of the dispute. Both the delay and the discussion used to be called an imparlance.

Impartial Unable to see any personal advantage from taking one side rather than another. To be impartial, an expert witness or a jury must not favor one side over the other or prejudge any of the facts or theories involved in the case. A juror in particular must be fair, openminded, unbiased, and just, so that decisions are based only on proper evidence.

Impasse A breakdown in negotiations with no definite plans for further efforts to break the deadlock, after both sides have tried hard to negotiate in good faith to reach agreement. An impasse permits either side in a labor dispute to then take certain unilateral actions.

Impeachment 1. Showing that a witness is untruthful, either by evidence of past conduct, or by showing directly that the witness is not telling the truth. When you do this, you impeach the witness. 2. The first step in the removal from public office of a high public official such as a governor, judge, or president. In the case of the president of the United States, the House of Representatives makes an accusation by drawing up “articles of impeachment,” voting on them, and presenting them to the Senate. This is impeachment. But impeachment is popularly thought to include the process that may take place after impeachment: the trial of the president in the Senate and conviction by two-thirds of the senators.

Impediment A thing causing the legal inability to make a contract. For example, an impediment to marriage might be a prior marriage that is still valid.

Implied-in-fact contract 237

Imperfect 1. Incomplete or executory. 2. Defective or missing an essential legal requirement. 3. Unenforceable (or enforceable only in certain circumstances).

Impersonation Pretending to be a police officer, a public official, or a person (such as a doctor or lawyer) whose occupation requires a state license. Such behavior is often criminal.

Impertinence Irrelevance in the sense that the proof offered may be relevant to an issue, but the issue itself is irrelevant to the trial.

Implead Bring into a lawsuit. For example, if A sues B and B sues C in the same lawsuit, B impleads C, and the process is impleader.

Implicate Show that a person is involved with a crime or other misdeed. Implied Known indirectly. Known by analyzing surrounding circumstances or the actions of the persons involved. The opposite of express. For example, implied authority is the authority one person gives to another to do a job even if the authority is not given directly (such as the authority to buy and charge gas if you run out while making a delivery for your boss). And implied terms are parts of a contract that do not exist on paper, but are part of the contract nonetheless (because the law requires them, because usual contracts in that

business have them, etc.).

Implied acquittal Conviction of a lesser included offense is an implied acquittal of the greater offense, and thus bars a trial on that offense because of double jeopardy.

Implied consent laws State laws that permit law officers to require a blood alcohol test even if the driver does not consent. Consent is implied from the use of the public roadway.

Implied contract Either an implied-in-fact contract or a quasi contract.

Implied powers See necessary.

Implied remedy A remedy (to compensate a violation of a constitutional right) that is not specifically provided by law but is implied from the existence of the right itself.

Implied trust Resulting trust.

Implied warranty An unstated promise, imposed on a merchant, that what is sold is fit for normal use, or, if the merchant knows what the buyer wants the thing for, that it is fit for that particular purpose. Unless these implied warranties are expressly excluded (for example, by clearly labeling the thing sold “as is”), a merchant will be held to them.

Implied-in-fact contract A contract with existence and terms determined by the actions of the persons involved, not by their words. Compare with express contract and quasi contract.