Daniel Oran - Oran's Dictionary of the Law

298 Mailbox rule

Mailbox rule The rule that an acceptance of an offer is made (and forms a valid contract) when it is mailed, so neither the person making the offer nor the person accepting it can take it back after the acceptance is in the mail. This rule applies only in situations where mailing is a reasonable practice. The general principle (that sending, not receipt, makes an acceptance) applies to other ways of communicating also. The mailbox rule does not apply to making an offer or to the revocation of an offer.

Maim Seriously wound, disfigure, or disable a person.

Main purpose doctrine The principle that if the main purpose of a person’s promise to pay another’s debt is the person’s own benefit, that promise need not be in writing to be enforceable. (This is an exception to the general rule under the statute of frauds that the promise to pay another’s debts must be in writing.)

Maintain Carry on; keep from lapse or failure; support; keep in good shape; continue; do repeatedly. See also maintenance.

Maintenance 1. Acting to maintain (see that word). 2. Meddling with a lawsuit that doesn’t concern you; for example, by paying a person to continue a lawsuit he or she would have dropped. See also champerty. 3. Supplying the necessities of life. See also separate maintenance. 4. For maintenance call, see margin call.

Major and minor fault rule The principle that when one ship’s fault is uncontradicted and clearly could have caused the collision, any doubts about the other ship’s possible fault should be resolved in its favor.

Major dispute A major dispute in transportation labor law concerns the creation or change of a labor contract, while a minor dispute concerns the meaning of an existing contract as it applies to specific situations.

Major federal action A project that requires substantial planning, time, spending, or resources by the U.S. government. These actions may require an Environmental Impact Statement.

Majority 1. Full legal age to manage your own affairs. 2. More than half. Fifty-one is a majority of votes when one hundred persons vote. A distinction is sometimes made between an absolute majority (more than half of the voters who come to vote) and a simple majority (more than half of the voters who actually vote on one particular issue or election contest). 3. For majority opinion, see opinion. A majority view is a legal principle agreed to by most of the courts that have considered the question or by the highest court in most of the states that have considered it. And majority-consent is the procedure in some states by

Mallory rule 299

which a majority of a company’s stockholders can give written consent to waive the annual meeting and take various actions by written agreement.

Make 1. Sign a document to make it legally valid, as in “made and executed.” 2. Prove a legal point, as in “make your case.” 3. Create something. For example, to make a record is to create a basis “in the record” for a decision in your favor (or for a possible appeal) by presenting evidence; or to create and assemble the physical record of a case (transcript, pleadings, exhibits, etc.). And a judge makes law by deciding a case (or interpreting a statute) in a way that creates a new and different precedent.

Make whole Put a person who has suffered a loss because of another’s wrong back into the financial position he or she was in before the wrong was done.

Maker 1. A person who initially signs a negotiable instrument, such as a note, and by doing so promises to pay on it. 2. A person who signs, creates, or performs something.

Mala fides (Latin) Bad faith. [pronounce: mal-a fee-dez]

Mala in se See malum in se.

Mala praxis Malpractice.

Mala prohibita See malum prohibitum.

Malefactor A person who is guilty of a crime.

Malfeasance 1. Wrongdoing. 2. Doing an illegal act (especially by a public official). Compare with misfeasance and nonfeasance.

Malice 1. Ill will. 2. Intentionally harming someone; having no moral or legal justification for harming someone. 3. In defamation law, with knowledge of falsity or with reckless disregard for whether or not something is false. [pronounce: mal-iss]

Malice aforethought An intention to seriously harm someone or to commit a serious crime.

Malicious Done intentionally, from bad motives and without excuse. For example, malicious prosecution is the tort of bringing criminal charges against someone in order to harm that person and with no legal justification for doing it. Some states recognize a similar tort, malicious institution of civil proceedings. See also abuse of process.

[pronounce: ma-lish-us]

Malicious mischief The criminal offense of intentionally destroying another person’s property.

Mallory rule The McNabb–Mallory rule.

300 Malloy v. Hogan

Malloy v. Hogan (387 U.S. 1) The 1964 U.S. Supreme Court decision that used the Fourteenth Amendment to extend the federal Fifth Amendment protection against self-incrimination to criminal defendants in state courts.

Malo animo (Latin) “With evil mind”; malice.

Malo grato (Latin) Unwillingly.

Malpractice Professional misconduct or unreasonable lack of skill. This word usually applies to bad, incomplete, or unfaithful work done by a doctor or lawyer.

Malum (or mala) in se (Latin) “Wrong in and of itself”; morally wrong; describes common law crimes. [pronounce: ma-lum in say]

Malum (or mala) prohibitum (Latin) “Prohibited wrongs”; describes statutory crimes, especially those not malum in se.

Manager 1. A person chosen to run a business or a part of one. 2. A member of the House of Representatives who is chosen to prosecute an impeachment trial in the Senate. 3. See conference committee.

Managing agent A corporate employee for whose actions the corporation may be held responsible; a corporate employee who may serve as a corporate representative; etc. What type or level of employee is a managing agent differs from state to state and from situation to situation (employee fraud, service of process on the corporation, testimony about corporate affairs, etc.).

Mandamus (Latin) “We command.” A writ of mandamus is a court order that directs a public official or government department to do something. It may be sent to the executive branch, the legislative branch, or a lower court. [pronounce: man-day-mus]

Mandatary An agent. Not mandatory.

Mandate 1. A judicial command to act; see mandamus. 2. An authorization to act. 3. Require. See mandatory. 4. Strong voter approval for a political position. 5. For mandated reporter, see child abuse.

Mandatory Required; must be followed or obeyed.

Mandatory authority Binding authority.

Mandatory injunction All injunctions are mandatory in the sense that they must be obeyed, but mandatory injunction refers to an injunction that requires a person to do something, as contrasted with a prohibitory injunction, which requires a person to refrain from doing something.

Margin 301

Manifest 1. Clear, visible, indisputable, or requiring no proof. 2. A written document that lists goods being shipped or stored, giving descriptions, values, shipping information, etc. 3. A list of passengers carried by a ship or a plane. 4. Manifest necessity, is legal necessity.

Manifesto 1. A formal written statement by the head of a country concerning a major international action. 2. A public declaration of political principles.

Man-in-the-house rule Any state regulation (now unconstitutional) used to deny welfare benefits (see those words) to poor families solely because a man lives with them.

Manipulation A series of stock (or other securities) transactions intended to raise or lower the price of the stock or to convince others to buy or sell. This is usually done by creating a false impression of active trading or by trying to trigger a major trading trend.

Mann Act (8 U.S.C. 1557) A 1910 federal law prohibiting the transport of women across state lines for immoral purposes (especially prostitution).

Manslaughter A crime, less severe than murder, involving the wrongful but non-malicious (see malice) killing of another person. There are various categories of manslaughter. In some states voluntary manslaughter is a killing in a sudden rage such as occurs during a quarrel and fight, and involuntary manslaughter is a killing with no intention to cause serious bodily harm, such as by acting without proper caution.

Manufacturer’s liability See strict liability.

Manumission A release from slavery.

Mapp rule The principle, from the 1961 U.S. Supreme Court case of Mapp v. Ohio (367 U.S. 218 (1961)), that evidence obtained in violation of a criminal defendant’s constitutional rights may not be used against the defendant in a state criminal trial. The Mapp rule is an exclusionary rule. A Mapp hearing is a criminal case suppression hearing to determine whether evidence should be excluded because it was illegally obtained.

Marbury v. Madison (5 U.S. 137) The 1803 U.S. Supreme Court decision that established the right of the judiciary to decide whether an act of Congress is constitutional. This is one type of judicial review.

Margin 1. A boundary or boundary line. 2. The percentage of the cost of a stock (or other security) that must be paid in cash by the buyer. A broker who offers such a margin transaction then makes a loan for the balance of the cost, keeping the stock as collateral in a margin account. 3. For margin of profit, see profit margin.

302 Margin call

Margin call 1. A stockbroker’s (see that word) demand for more cash or more collateral for a stock bought on margin because the stock has gone down in value. This is also called a maintenance call or remargining and is done by others, such as commodity dealers. 2. A stockbroker’s notice to a buyer that a certain stock has been bought and that the purchase price must now be paid.

Marginal cost The cost of adding one more identical item to a bulk purchase, of manufacturing one more item in a production run, of borrowing one more dollar in a loan, etc.

Marginal rate The tax rate applied to a person’s or organization’s highest tax bracket.

Marital Having to do with marriage. For example, the marital deduction is the amount of money a wife or husband can inherit from the other without paying estate or gift taxes; and marital property is any property owned by a husband and wife together, including most things purchased during the marriage.

Marital agreements 1. All contracts between persons married to each other. 2. Contracts between persons about to get married or about to separate. These usually concern the division of property, custody, and support in the event of divorce or legal separation. When entered into prior to marriage, these contracts are known as premarital, prenuptial, or antenuptial agreements. When entered into during the marriage (after the marriage ceremony), the contracts are known as separation agreements or postnuptial agreements.

Marital communications privilege 1. The right of a husband and wife to keep the contents of their private conversations secret. 2. The right of a husband or wife to keep the other from testifying against him or her in a criminal trial. This right may not apply if the crime is by one spouse against the other. Not interspousal immunity.

Maritime (or marine) belt See territorial waters.

Maritime law The law of ships, ocean commerce, and sailors. See also admiralty.

Mark 1. A sign, such as a cross-mark (X), used by a person who cannot sign a name. To be valid, it usually requires witnesses who sign the document. 2. See marque and reprisal. 3. An indication; proof or evidence. For example, a mark of fraud is a sign or indication that something is phony. 4. A trademark, service mark, collective mark or certification mark (see those words) that can be registered under federal law because it is “used in commerce” by being displayed on

Marketing contract 303

or with a product or service sold or advertised in more than one state or country.

Market 1. The geographical region in which a product can be sold, or the economic and social characteristics of potential buyers. 2. Short for “stock market” or “commodities market.” 3. The demand for something or the price it will sell for if sold. 4. The range of bid and asked (see that word) prices for over-the-counter stocks.

Market making Establishing a sales price for over-the-counter stocks and other securities by placing bid and asked (see that word) quotations.

Market order See order.

Market power A company’s (or group of companies’) ability to raise prices by lowering output because it controls a large amount of the trade in an item. This may be a violation of antitrust acts.

Market price 1. The price at which something has just sold in a particular market. 2. Market value.

Market share The percentage of sales that one company controls of a particular item in a particular market.

Market value The price to which a willing seller and a willing buyer would agree for an item in the ordinary course of trade. It is also called “actual market value,” “actual value,” “cash market value,” “clear market value,” “current market value,” “fair cash value,” “fair market value,” “fair value,” “just compensation,” etc.

Marketable 1. Easily sold for cash. For example, a marketable security is a stock, bond, etc., that can be sold in the proper exchange or through normal business channels. Marketable securities also refers to a company’s temporary investments of extra cash in such shortterm, low-risk things as treasury bills and commercial paper.

2. Commercially valid. For example, a marketable title to land is ownership that can be freely sold because it is clear of any reasonable doubts as to its validity.

Marketable title acts State laws that make it possible to determine whether or not a title to land is good by searching the public records for a limited time only (for example, back to forty years ago).

Marketing contract 1. Any agreement between an agent ( or a broker or merchant) and a producer by which goods, securities, etc., are sold. 2. An agreement between a producers’ cooperative and its members in which the members promise to sell through the co-op and the co-op promises to get the best possible price. 3. An output contract or a requirements contract.

304 Marketing order

Marketing order A federally approved limit on the amount of a particular vegetable or other agricultural commodity that can be sold by farmers in a particular area.

Marketplace of ideas A goal of freedom of speech: the best ideas can find acceptance if unhindered by the government.

Markup 1. The meeting in which a committee of a legislature goes through a bill section-by-section to revise and finalize it. 2. An amount of money added to the cost of an item to give the merchant selling costs plus a profit. If a merchant buys a shirt for ten dollars and sells it for fifteen, it has a “50 percent markup,” or a “five dollar markup.”

Marque and reprisal The request made to the ruler of one country to seize the citizens or goods of another country until some wrong done by that other country is righted.

Marriage Legal union as husband and wife. For ceremonial marriage, see that word. For informal, consensual, or common law marriage, see common law marriage.

Marriage settlement 1. See marital agreements. 2. A transfer of title to property that firmly fixes the right of succession to protect the wife or the inheritance rights of existing or future children. For example, an aunt might “settle” the title to a house on the bride and her children as of the date of the proposed marriage.

Marshal A person employed by a federal court to keep the peace, deliver legal orders, and perform duties similar to those of a state sheriff.

Not “martial.”

Marshaling 1. Arranging, ranking, or disposing of things in order. For example, marshaling assets and claims is collecting them up and arranging the debts into the proper order of priority and then dividing up the assets to pay them off. This is done by a trustee when someone goes bankrupt and by an executor or administrator of a dead person’s estate. 2. In general, if one creditor could collect from either of two pots of a debtor’s money and a second creditor can collect from only one of them, the first creditor will be required to take from the singly-claimed pot first. This is called the rule of marshaling assets, the rule of marshaling remedies, the rule of marshaling securities, and the two funds doctrine. The rule of marshaling liens, is also called the inverse order of alienation doctrine.

Martial law Government completely by the military; control of the domestic civilian population by the military in wartime or during a breakdown of civilian control. Not “marshal.” Compare military government and military law. [pronounce: mar-shall]

Material 305

Martin v. Hunter’s Lessee (14 U.S. 304) The 1816 case that established the U.S. Supreme Court’s right to review all state court decisions involving the U.S. Constitution or laws.

Martindale–Hubbell Short for the Martindale-Hubbell Law Directory, a multivolume book that lists many lawyers by location and type of practice. Other volumes contain summaries of each major area of the law in each state and most foreign countries.

Mary Carter agreement An agreement between a plaintiff and one (or more, but not all) of the co-defendants that gives the co-defendant a financial interest in the plaintiff’s recovery.

Mask work A series of related images that represent the design of a semiconductor chip. Mask works are protected from infringement by the Semiconductor Chip Protection Act of 1984.

Mass picketing Picketing in large numbers. If it disrupts a business it may be an unfair labor practice or subject to an injunction or a lawsuit for damages.

Massachusetts trust A business trust.

Master 1. An employer who has the right to control the actions of an employee (the “servant”). The term “master” is not applied to one who hires an independent contractor. 2. A special master is a person appointed by a court to carry out the court’s orders in certain types of lawsuits. A special master might, for example, supervise the sale of property under a decree (order) that it be sold. Federal courts and many state courts have masters to perform a wide variety of informa- tion-gathering jobs for a trial. 3. Overall or controlling; for example: a master agreement is an agreement between a large union and the leaders of one industry that becomes a model for labor contracts with each individual company; a master contract is a basic agreement to buy or lease equipment as needed, each time under the same general terms; a master deed is the overall plan containing the obligations of, and restrictions on, each unit of a condominium; a master limited partnership is a limited partnership that sells its shares as securities; a master plan is the overall plan of a city for housing, business, recreation, etc., as laid out in a map and in materials on zoning laws, environmental impacts, etc; and a master policy is an insurance policy for persons in a group insurance plan.

Material Important; probably necessary; having effect; going to the heart of the matter. For example, a material allegation in a legal pleading is a statement that is essential to the claim or defense being used and without which the pleading would have little or no legal effect, and

306 Material breach

a material alteration is a change in a document that affects its meaning or legal effect. For other examples, see the words following. Also see relevant.

Material breach A breach of contract that involves a failure to substantially perform (see substantial performance) a contractual promise. A breach of contract must be material for a lawsuit based on the breach to succeed.

Material evidence See relevant.

Material fact 1. A basic reason for a contract, without which it would not have been entered into. 2. A fact that is central to winning or deciding a case. 3. A fact which, if told to an insurer, would have influenced the insurer to refuse insurance, cancel insurance, or raise its cost.

Material issue A question that is formally in dispute between persons properly brought before the court and that is important to determining the outcome of the lawsuit.

Material witness A person who can give testimony no one else can give. In an important criminal case, a material witness may sometimes be held by the government against his or her will in order to assure that person’s availability to testify.

Materialman A person who supplies building materials for a construction or repair project. A more general word is “supplier.”

Mathematical evidence A phrase sometimes misused to mean demonstrative evidence.

Matrimonial actions Annulments, divorces, legal separations, etc.

Matter 1. A central, necessary, or important fact. 2. An event, occurrence, or transaction. 3. The subject of a lawsuit. 4. The name for certain special types of legal proceedings. For example, “In the matter of John Jones” might be the name for a child neglect case.

Matter of fact A question that can be answered by using the senses or deduced from the testimony of witnesses or other evidence.

Matter of law A question that can be answered by applying the law to the facts of a case.

Matter of record Anything that can be proved by merely checking a court record. The word is sometimes broadened to include anything that can be proved by checking any official record.

Matured 1. See liquidated. 2. See maturity.

Maturity The time when a debt or other obligation becomes due or a right becomes enforceable.

Means test 307

Maxim A general statement about the law that works when applied to most cases.

Mayhem The crime of violently, maliciously, and intentionally giving someone a serious permanent wound. In some states, a type of aggravated assault. Once, the crime of permanently wounding another (as by dismemberment) to deprive the person of fighting ability.

Mayor The head of a city, town, or other local government. Mayors may be elected or appointed, important or ceremonial. A mayor’s court is usually a police or traffic court in a small town, with the mayor serving as judge.

McCarran Act 1. See internal security acts. 2. A federal law (15 U.S.C.

1011) that permits states to tax and regulate out-of-state insurance companies that have in-state customers.

McCulloch v. Maryland (17 U.S. 316) The 1819 Supreme Court decision that upheld the implied power (not stated directly in the Constitution) of the federal government to take certain actions, such as establishing banks, and denied the states the right to tax any part of the federal government, confirming that the national government was supreme in all matters allowed it by the Constitution.

McNabb–Mallory rule The rule (used in federal court and many state courts, and found at 318 U.S.322 and 354 U.S. 449) that if someone has been held too long by the police before bringing the person before a judge, no confession obtained during the holding period may be used against that person.

McNaghten rule See M’Naghten’s rule.

Mean high tide The long-term average, highest line that the tide reaches on waterfront land. This is often considered the private property line; anything on the seaward side may be used by the public.

Means 1. Money, property, or income available to support yourself, to support your family, to pay a debt, etc. 2. Laws, acts, and initiative and referendum measures (the means to accomplish what the people want the government to accomplish). 3. A cause; an agent of change; a method of accomplishing something.

Means test 1. A financial requirement that a person have or make either more or less than a certain amount of money to qualify for something. 2. The requirement that if a company makes choices that are potentially discriminatory (see discrimination), the company’s purpose must be legally justified and the means it uses to accomplish that purpose (or “end”) must be the least drastic possible.