Daniel Oran - Oran's Dictionary of the Law

358 Pattern or practice

privilege is often limited at higher levels to jobs of a “political or confidential” nature and at low levels to small governments without a full civil service system.

Pattern or practice A regular, repeated, intentional course of conduct.

Pauper A poor person who cannot support him or herself and who requires financial help from the government (to live, to carry on a lawsuit or defend a criminal trial, etc.).

Pawn 1. To give personal property (such as a camera) to a commercial lender (usually called a pawnbroker) as security for a loan. A pawned item is held until the money loaned is paid back. If the money is not paid back within a certain time, the item is sold. 2. The property itself in no. 1.

Payable 1. Owing, and to be paid in the future. 2. Owing, and due for payment now. 3. For payable to bearer and payable to the order of, see bearer and order.

Payables Accounts payable.

Payee The person to whom a negotiable instrument (such as a check) is made out; for example, if a check is made payable “to the order of John Doe,” John Doe is the payee.

Payout ratio The dividend a company pays on each share of common stock divided by the stock’s earnings per share (see that word). The ratio shows how much money a company pays its investors compared to how much is available to put back into the business.

Payroll tax A tax collected from a company’s payroll. It is often a payroll subtraction made by the employer from the employee’s salary.

P/E ratio Price-earnings ratio.

Peace bond A bond, required by a judge of a person likely to “breach the peace,” to guarantee the person’s good behavior for a period of time.

Peace officer Any public official (such as a sheriff, police officer, marshal, etc.) with the authority to make arrests.

Peaceable possession Holding land or a building continuously, with no attempt by others (such as a lawsuit) to remove the possessor from the land. Peaceable possession is one requirement for gaining legal ownership of land by adverse possession or by an action to quiet title.

Peculation Embezzlement.

Pecuniary Monetary; related to money. A pecuniary interest is a right that has monetary value. A judge should not decide a case that could affect the judge’s pecuniary interests.

Pendent jurisdiction 359

Pederasty Anal (and in some states oral) intercourse between males, especially between man and boy.

Peers Equal persons. However, a trial “by a jury of peers” does not mean “by persons exactly equal to the defendant,” but merely “by citizens chosen fairly.”

Pegging Officially, arbitrarily, or artificially fixing or setting the value of something. For example, a country can “peg” the relative value of its currency or allow it to float relative to other countries’ currency. Also, an underwriter selling a new stock issue can “peg” (try to set) the price by placing repeated orders to buy at a certain price in the stock market.

Peine fort et dure (French) “Punishment strong and hard.” Describes a punishment in ancient England involving pressing to death under a great weight a person who refused to speak when accused of a major crime.

Penal 1. Concerning a penalty. In this sense, a penal action is a civil lawsuit to make a wrongdoer pay a fine or penalty to the person harmed, and a penal bond is a bond put up as a promise to pay money if a certain thing is not done. 2. Criminal. In this sense, a penal action is a criminal prosecution, a penal law is a criminal law, a penal code is a collection of federal or state criminal laws, and penal servitude is imprisonment for committing a crime or imprisonment with forced labor. 3. For penal damages, see punitive damages.

Penalty 1. A punishment imposed by law. 2. A sum of money promised by one person to another, to be paid if the first person fails to do something.

Penalty clause A contract clause that calls for payment of a specific amount of money to punish a breach. Unlike liquidated damages, it is not based on the money that would compensate for the breach, but is arbitrarily set. If it greatly exceeds liquidated damages, a court will not enforce it.

Pendency 1. While pending (see that word). 2. A notice of pendency is a formal warning, recorded in the land records, that a claim has been made against a property. The notice warns that anyone who buys the property does so subject to the claim.

Pendent jurisdiction A federal court’s right to decide a claim based on a nonfederal issue if this claim depends on the same set of facts as does a federal claim in the case before the court.

360 Pendente lite

Pendente lite (Latin) “Pending the suit”; while a lawsuit is in progress. For example, support pendente lite is temporary support while a divorce case is in progress. [pronounce: pen-den-te lee-te]

Pending As yet undecided; begun but not finished.

Penitentiary A prison for felons.

Pennoyer v. Neff (95 U.S. 714) The 1877 U.S. Supreme Court decision that a state court cannot take jurisdiction over a person unless the person has been served with process in that state. This rule has been greatly modified (see, for example, long-arm statute), but the general principle that a court must have jurisdiction over a person to give a judgment or decree against that person is still valid.

Pennsylvania rule The principle that if a person who breaks a traffic law is in a collision, that person must prove that the violation did not cause the accident in order to be free of fault.

Penny stock Stock, often speculative, selling at less than a dollar a share.

Penology The study of prisons and criminal punishment.

Pension Benefit Guaranty Corporation See P.B.G.C.

Pension plan A plan set up by an employer to pay employees after retirement. This may be either a fund of money (called “funded” if it is fully paid-in to meet the promised pension needs) set up by the employer or payments by the employer to the employee. A qualified plan is one that meets I.R.S. requirements for the payments to be deducted by the employer and initially tax-free to the employee. A defined-benefit plan has benefits specified in advance, usually as a percentage of salary and related to years of service, with no individual account kept for each employee. A money-purchase plan (or defined-contribution plan) has a specified amount of money periodically contributed to a retirement fund by the employer, by the employee, or by both. The money is invested, with earnings divided proportionately among all plan participants. See also Individual Retirement Account, Keogh Plan, Employee Retirement Income Security Act, vested, and annuity.

Penumbra doctrine 1. The principle that the “necessary and proper clause” of the U.S. Constitution allows the federal government to take all actions to carry out legitimate government purposes, even if the powers needed to carry out these purposes are only implied from other powers (which themselves are not specifically mentioned in the Constitution, but only implied). 2. The principle that specific constitutional rights have less clear, but still real, implied rights, such as the right to privacy.

Percentage lease 361

Peona (Latin) Punishment.

Peonage Slavery or forced labor to pay off a debt.

People 1. A nation or state. 2. All persons in a nation or state regarded as a single group. 3. Not the plural of “person” in the law.

Peppercorn Something of actual, but very insignificant, value.

Per (Latin) By; through; by means of; during. For example, per annum means “by the year” or “yearly” and per autre vie means “during the life of another person.”

Per capita (Latin) “By heads.” By the number of individual persons, each equally. Compare with per stirpes.

Per curiam (Latin) “By the court.” Describes an opinion backed by all the judges in a particular court and usually with no one judge’s name on it. [pronounce: per cure-ee-am]

Per diem (Latin) 1. By the day; day by day; each day. 2. A fixed amount of money paid to a person each day for either a salary or expenses (such as food and lodging). [pronounce: per dee-em]

Per pais See pais.

Per procuration In English law, acting as an agent with only limited authority. Abbreviated “per. proc.” or “p.p.”

Per quod (Latin) “By that”; “by which acts.” A specification of necessary details; requiring specific proof. Sometimes used as the opposite of per se.

Per se (Latin) In and of itself; taken alone; inherently. For example, some types of business arrangements are “per se violations” of antitrust acts because, even without specific proof that monopoly power has hurt competition, the arrangements are in and of themselves considered bad. Compare rule of reason no. 3 and per quod. [pronounce: per say]

Per stirpes (Latin) “By roots”; by right of representation. Describes a method of dividing a dead person’s estate by giving out shares equally “by representation” or by family groups. For example, if John leaves three thousand dollars to Mary and Sue, and Mary dies, leaving two children (Steve and Jeff), a per stirpes division would give fifteen hundred dollars to Sue and seven hundred and fifty dollars each to Steve and Jeff. A “per capita” (see that word) division would give one thousand dollars each to Sue, Steve, and Jeff.

Percentage depletion See depletion allowance.

Percentage lease A lease of a building with the rent, above a certain minimum rent, based on the dollar value of sales by the tenant in the building.

362 Percentage order

Percentage order Instructions from a customer to a broker to buy or sell a certain number of shares of stock after a specific number of shares have been traded on the market.

Perception An old word for taking something into possession or for counting out money and paying a debt.

Peremptory 1. Absolute; conclusive; final; or arbitrary. 2. Not requiring any explanation or cause to be shown. For example, a peremptory challenge to a potential juror is the automatic elimination of that person from the jury by one side before trial without needing to state the reason for the elimination. Each side has the right to a certain number of peremptory challenges, and all other attempts to eliminate a potential juror must be for a reason (which may or may not be accepted by the judge).

Peremptory ruling A judge’s ruling that “takes the final decision away” from the jury; for example, a directed verdict or judgment non obstante veredicto.

Peremptory writ 1. See mandamus. 2. See summons.

Perfect 1. Complete; enforceable; without defect. Also called “perfected.” 2. To tie down or “make perfect.” For example, to perfect a title is to record it in the proper place so that your ownership is protected against all persons, not just against the person who sold to you. This is called “perfection.” And perfecting bail is meeting all the qualifications to “go bail” for someone and get him or her out of jail.

Perfect tender rule The rarely-applied rule that exact performance of the details of a commercial contract is required to make the contract enforceable.

Performance Carrying out a contract, promise, or other obligation according to its terms, so that the obligation ends. Specific performance is being required to do exactly what was agreed to. A court may require specific performance of a contract if one person fails to perform and damages (money) will not properly compensate the other side for harm done. Part performance is carrying out some, but not all, of a contract, or doing something in reliance on another’s promise. Part performance of an oral contract that should have been in writing to be enforceable (see statute of frauds) usually makes the contract enforceable. Part performance in reasonable reliance on another’s promise may make the promise irrevocable.

Performance (or completion) bond A bond that guarantees that a contractor will do a job correctly and finish it on time.

Perpetuity 363

Performance right A copyright holder’s right to control who will perform or broadcast the work.

Peril 1. A risk or accident insured against in an insurance policy. 2. A natural, as opposed to human-caused danger.

Periodic Happening after regular, fixed amounts of time. For example, periodic alimony is payment of a certain sum of money to an exspouse once a month, once a week, etc.; and periodic tenancy is a lease that continues from month-to-month or year-to-year unless ended (usually by someone giving a notice that it will be ended).

Perjury Lying while under oath, especially in a court proceeding. It is a crime. See also false swearing.

Perk Short for perquisite.

Permanent Permanent can mean anything from “for an indefinite time” (as in permanent employment), to “definitely right now” (as in permanent residence), to “definitely for a long time” (as in permanent disability).

Permissive 1. Allowed or endured, as opposed to actively approved of. 2. By right. 3. Lenient or tolerant. 4. For permissive counterclaim, see counterclaim.

Permit 1. An official document that allows a person to do something (usually something legal that is not allowable without the permit). 2. A permit card is a document given by a union to a nonmember allowing that person to work on a job for which there are not enough union members.

Pernancy An old word for the taking or receiving of something.

Perp Slang for perpetrator.

Perpetrator The person who commits a particular crime.

Perpetual succession The continuous existence of a corporation as the same “being,” even though its owners, directors, and managers may change.

Perpetual trust A trust that continues as long as the need lasts (the life of a person or a charity, etc.).

Perpetuating testimony A procedure for taking and preserving testimony (usually by deposition) of persons who are in very bad health, very old, about to leave the state, or might otherwise be unavailable for a later trial.

Perpetuation of evidence Making sure that evidence is available for a possible trial later.

Perpetuity 1. Forever. 2. An investment that gives equal future payments essentially forever. 3. Any attempt to control the disposition of

364 Perquisite

your property by will that is meant to last longer than the life of a person alive when you die (or at least conceived by then) plus twenty-one years. Most states prevent such control by a law known as the rule against perpetuities.

Perquisite A benefit of a job in addition to the salary; for example, a company car for personal use. A “perk.” [pronounce: per-qui-zit] Person 1. A human being (a “natural” person). 2. A corporation (an “ar-

tificial” person). Corporations are treated as persons in many legal situations. Also, the word “person” includes corporations in most definitions in this dictionary. 3. Any other “being” entitled to sue as a legal entity (a government, an association, a group of trustees, etc.). 4. The plural of person is persons, not people (see that word).

Persona non grata (Latin) “Persons not wanted.” Describes a person rejected as an ambassador or other government representative by the country to which he or she is sent.

Personal 1. Having to do with a human being. 2. Having to do with movable property, as opposed to land and buildings. Personal effects means anything from “all movable property” to “only that property normally carried on the person.” 3. For personal holding company, property, recognizance, etc., see those words. A few other “personal” words follow this word.

Personal injury 1. Any harm done to a person’s rights, except for property rights. 2. Describes negligence and other tort actions brought to get compensation for bodily and other harm done.

Personal representative A general term for the executor or administrator of a dead person’s property.

Personal trust A trust for individuals and their own families, as opposed to business-related trusts or trusts set up to benefit a charity.

Personality 1. A person’s mental characteristics. In this sense, a personality disorder is a continuing behavioral or emotional problem, rather than a mental illness. 2. The condition of being a person. In this sense, a corporation has legal personality. See person. Not personalty.

Personalty Personal property; movable property. Not personality. Persuasive authority All sources of law that a judge might use, but is

not required to use, in making up his or her mind about a case; for example, legal encyclopedias or related cases from other states. A case may be strongly persuasive if it comes from a famous judge or a nearby, powerful court.

Pertinent Relevant to an issue that itself is relevant to the outcome of a trial.

Physical fact 365

Perverse verdict A jury’s verdict (see that word) that did not follow (or could not have been in accordance with) a judge’s instructions about a point of law.

Petit jury (or petty jury) “Small jury.” Describes the standard trial jury as opposed to a grand jury.

Petit larceny “Small larceny.” The crime of stealing something worth less than a certain amount set by law.

Petition 1. A written request to a court that it take a particular action. In some states the word is limited to written requests made when there is no other side in a case (ex parte cases, see that word), and in some states, “petition” is used in place of “complaint” (the first pleading in a lawsuit). 2. A request made to a public official.

Petition in bankruptcy A paper filed to start a bankruptcy (see that word) by a debtor requesting relief from debts. It can also be filed by creditors asking that a person be put into bankruptcy involuntarily.

Petitioner Same as “plaintiff” in many states.

Petitory action A lawsuit to establish title to land, as opposed to a lawsuit to gain physical possession of the land.

Pettifogger An old word for a lawyer who is either incompetent or who tries to win by clouding the issue and drowning it in trivia.

Petty Small or unimportant. For example, petty cash is money kept on hand to meet small expenses, and a petty offense is one punishable by only a fine or a short jail term. For petty jury, see petit jury.

Phantom jury Shadow jury.

Phantom stock Employee compensation that is similar to a nontransferable, nonvalued, nonvoting stock option that can be cashed in at a later date for the value of a certain number of shares of company stock as of that later date (but not for the shares themselves).

Philadelphia lawyer Originally, a skillful lawyer; now, a sly or tricky lawyer.

Philanthropic organization See nonprofit organization.

Physical 1. Having to do with the body, rather than the mind; for example, a physical incapacity is either an injury that prevents working or impotence due to a physical cause. 2. Real as opposed to imaginary.

3. See physical fact. 4. See physical impossibility under impossible.

5. Physical necessity means being compelled to do something by an irresistible force.

Physical fact 1. An indisputable law of nature or a scientific fact. 2. Something visible, audible, or otherwise “graspable” by the senses.

366 Physician-patient privilege

3. The “physical fact rule” is the principle that evidence contrary to a known law of nature may justify a judge’s decision to take a case away from the jury. This evidence may also be disregarded by an appeals court even if the judge accepted it. 4. Another different “physical fact rule” is the principle that a driver is negligent if he or she did not see what should have been seen.

Physician-patient privilege See doctor-patient privilege. Physician’s directive See advance directive.

Picketing Persons gathering outside a place to disturb its activities or to inform persons outside of grievances, opinions, etc., about the place. This usually takes place when a labor union tries to publicize a labor dispute with a company, influence customers to withhold business, etc. For chain, common situs, cross, mass, and other types of picketing, see those words.

Piercing the corporate veil A judge’s holding individual owners, directors, officers, etc., liable for a corporation’s debts or wrongdoing. This is done in unusual circumstances such as to punish fraud or when the corporation’s stock is not fully paid for.

Pinkerton rule See conspiracy.

Pinpoint citation The page number of a specific quote, as opposed to the general citation (see that word). It follows the page number on which the quoted document begins. In the general citation 17 U.Dl.L.R.247, 250, the pinpoint citation is page 250. Also, some pinpoint citations are to a page plus a specific paragraph number, and some are to a paragraph number alone.

Pioneer patent A patent for an invention or device that is entirely new, rather than a small improvement; or a patent that may open up a whole new area of experimentation or development.

Piracy 1. Attacking and looting or stealing a ship or airplane. 2. Reprinting all or part of a copyrighted book, movie, etc., without permission.

Pit A commodity exchange’s trading area.

Place 1. Arrange a sale or other financial transaction. Placement could be arranging the sale of a new issue of stock, arranging a loan or mortgage by matching up borrower and lender, or finding a job for a person. 2. Place of business and place of employment have no precise definitions in the law.

Placer claim A public land claim to mine minerals deposited in loose sand or rock, along the bank of or under a river, etc.

Placitory Having to do with pleading or pleas.

Plea 367

Placitum (Latin) An old word for a wide variety of different things including agreements, laws, court decisions, public meetings, courts, lawsuits, pleadings, etc.

Plagiarism Taking all or part of the writing or idea of another person and passing it off as your own. See also infringement. [pronounce: play- jar-ism]

Plain error rule The principle that an appeals court can reverse a judgment because an obvious error affecting substantial rights was made by the trial court during trial, even if the error was not objected to at the time.

Plain meaning rule 1. The principle that if a law seems clear, you should take the simplest meaning of the words and not read anything into the law. This is one of several possible ways of interpreting statutes. 2. The principle that if a contract, statute, or other writing seems clear, the meaning of the writing should be determined from the writing itself, not from other evidence such as testimony.

Plain view doctrine The rule that if police officers see or come across something while acting lawfully, that item may be used as evidence in a criminal trial even if the police did not have a search warrant.

Plaintiff A person who brings (starts) a lawsuit against another person.

Plaintiff in error An appellant.

Planned unit development An area of land to be developed as one unit of various housing groups plus commercial or industrial development. This development may be approved even if the zoning requirements for one part of the land might not allow the buildings planned for that piece.

Plant patent A patent given to the first person who recognizes the distinctive characteristics of a plant and reproduces it any way but by seed. This could include grafting, genetic engineering, etc.

Plat A map showing how a piece of land will be subdivided (divided up) and built upon. A platmap gives the legal description of pieces of property by lot, street, and block numbers.

Plea 1. The defendant’s formal answer to a criminal charge. The defendant says: “guilty,” “not guilty” or “nolo contendere” (no contest). 2. For the use of the word in most modern civil lawsuits, see pleading. 3. An older word for several types of civil motions, such as a plea in abatement, that have been largely replaced by a “motion to dismiss.” Other types of old pleas include pleas in bar, pleas in discharge, and pleas of release. [pronounce: plee]