Daniel Oran - Oran's Dictionary of the Law

378 Presents

Presents “These presents” is an obsolete phrase for “this legal document.”

Presidential electors See electoral college.

Presumed intent Describes the legal rule that a person means to cause any natural or probable results of his or her voluntary acts. A person legally intends not only a crime, but its consequences.

Presumption A conclusion or inference drawn. A presumption of fact is a conclusion that because one fact exists (or one thing is true), another fact exists (or another thing is true). If no new facts turn up to prove the presumption wrong, it is evidence as good as any direct proof of the fact. A presumption of law is an automatic assumption required by law that whenever a certain set of facts shows up, a court must automatically draw certain legal conclusions. For example, the presumption of innocence is that all persons are innocent of all crimes unless proven guilty beyond a reasonable doubt. Presumptions can be rebuttable (good until destroyed by more facts) or conclusive, absolute, or irrebuttable (an inference that must be drawn from a set of facts no matter what). Other presumptions include the presumption of death (if a person disappears and is gone for a certain number of years, that person is presumed dead); the presumption of legitimacy (if a child is born to a married woman, the husband is presumed to be the father); and the presumption of survivorship (in those states that do not have simultaneous death acts, the younger, stronger, healthier, etc., person is presumed to have been the later one to die in an accident if it is not known who really died last).

Presumptive May be inferred. Presumptive evidence is either a presumption of fact or prima facie evidence.

Presumptive trust A resulting trust.

Pretermitted heir A child (or sometimes any descendant) either unintentionally left out of a will or born after the will is made. Some states have pretermission statutes that allow a child left out by mistake to take a share of the parent’s property.

Pretext arrest The arrest of a person for a minor offense when the real purpose is to search for evidence of serious crime for which there is no justification to search.

Pretrial conference A meeting of lawyers and judge to narrow the issues in a lawsuit, agree on what will be presented at the trial, and make a final effort to settle the case without a trial. Procedural agreements can be put in writing in a pretrial order.

Pretrial diversion (or intervention) See diversion.

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Prevailing party The person who wins a lawsuit (even if the person is awarded far less money than he or she sued for).

Prevention (of performance) Doing something that prevents the other side from performing a contract duty. This normally does not create a breach by the other side.

Preventive detention Holding persons against their will, usually by order of a judge, because they are likely to commit a crime or to harm themselves or others. This practice is constitutional only in certain situations.

Preventive justice A general term for actions such as issuing a peace bond (see that word), taken by judges to prevent future lawbreaking.

Preventive law Legal help and information designed to help persons to avoid future legal problems rather than to solve existing legal problems.

Previous question In parliamentary law, the main motion (proposal) being considered (not a prior or subsidiary motion). To “call the previous question” or to “move that the previous question be considered” is a binding request for a vote on whether to now vote on the main motion under consideration.

Previously taxed income Earnings that have been taxed, but not yet received. This usually happens, for example, when an S corporation holds onto earnings rather than distributing them to its owners who are taxed on the earnings.

Price discrimination Different prices for the same quantity of the same goods charged to different buyers. This is illegal if done with predatory intent.

Price fixing Horizontal price fixing is different companies (or associations of companies) agreeing to charge similar prices for similar things. Vertical price fixing is controlling the resale price of something (usually by requiring a retailer to sell at no lower than a certain price, etc.). These arrangements often are violations of antitrust acts.

Price leadership A situation in which one large company regularly sets selling prices for something, and the rest of the industry then sets the same price. This is not a violation of antitrust acts unless the companies worked together on the pricing or tried to drive other companies out of the market.

Price supports Government loan, subsidy, and buying programs designed to keep prices (usually farm prices) above a certain level.

Price-earnings ratio The cost of a share of stock divided by the yearly dividend paid by that stock. For example, a $20 stock that paid $2 has

380 Priest-penitent privilege

a ten-to-one ratio. The price-earnings ratio is one measure of a stock’s investment quality.

Priest-penitent privilege See clergy’s privilege.

Prima facie (Latin) At first sight; on the face of it; presumably. Describes something that will be considered to be true unless disproved by contrary evidence. For example, a prima facie case is a case that will win unless the other side comes forward with evidence to disprove it. [pronounce: pri-ma fay-sha]

Primary activity A strike, boycott, or picketing against an employer with which a union has a dispute. (In contrast, a boycott directed against, for example, a store that handles the employer’s products is a secondary boycott.)

Primary authority 1. Binding authority. 2. Laws, court decisions, regulations, and other similar sources of law rather than interpretive or indirect information from legal encyclopedias, treatises, etc.

Primary election An election in which a political party chooses its candidates for public office (to run in the general election).

Primary evidence Best evidence (see best evidence rule).

Primary jurisdiction doctrine The principle that even if a court has the right and power to take a case, if the case involves issues that are better decided by an administrative agency, the court should give the agency the first opportunity to resolve the issue.

Primary market 1. The place in which, or the method by which, the first sale of a stock or other securities issue is made. 2. A company’s or a product’s most important source of customers (geographic, demographic, etc.).

Prime 1. Original. 2. Most important. 3. For prime contractor, see contractor. 4. The prime rate is the lowest interest rate a bank will charge its best customers for short-term, unsecured loans. This is an indicator of what the bank’s other interest rates will be, and the prime rates of national banks (see that word) are one of the major economic indicators.

Primogeniture 1. The first child born to a husband and wife. 2. Describes the former rule that the first son inherited everything.

Principal 1. Chief; most important; primary. 2. The sum of money invested, as opposed to the income or profits (often interest) made with the money. 3. An employer or anyone else who has another person (an agent) do things for him or her. 4. A person directly involved with committing a crime, as opposed to an accessory (see that word).

5. Not “principle.”

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Principal residence exemption The exemption from capital gains tax of some or all of the profits from the sale of a primary home. There are detailed rules for how often you can use the exemption and how much it is.

Principle A basic legal truth, doctrine, or generalization. Not “principal.”

Printers ink statute A state law that makes it illegal to advertise anything that is false or deceptive.

Prior art In patent law, all previously patented devices and processes against which the device or process described in a patent application is compared. The comparison is to determine whether the device or process is new and non-obvious (requirements for issuing a new patent).

Prior consistent statement A witness’s statement, made before the trial, that seems to support what he or she now says in the trial. This statement may be used to support the believability of the witness if it is challenged.

Prior hearing A hearing by an administrative agency that must sometimes be given to a person before taking any action that harms the person.

Prior inconsistent statement A witness’s statement, made before the trial, that seems to contradict what he or she now says in the trial. This statement may be used to discredit the believability of the witness, but not to prove the truth of what was said unless made under oath in a prior proceeding.

Prior mortgage (or lien) See priority.

Prior restraint The government stopping someone from saying, publishing, or otherwise communicating something. Prior restraint of speech is unconstitutional under the First Amendment unless the speech is a “clear and present danger” to the country or is obscene or violates a person’s legally recognized right to privacy.

Prior use doctrine The rule that one governmental organization cannot take property for a public use if the property is already devoted to a public use by another government organization unless there are specific laws allowing it.

Priority The right to be first. The right to have a claim paid first and completely, whether or not the deal on which the claim is based came first and whether or not the claim itself was made first. (When these claims are liens, the first person to perfect the lien has priority.)

Prison A place for long-term incarceration for a crime. Compare with jail.

382 Prisoner

Prisoner Anyone deprived of liberty by the government, either because of an accusation of a crime or conviction of a crime.

Privacy Describes the right to be left alone. The right to privacy is sometimes “balanced” against other rights, such as freedom of the press.

Privacy acts Federal and state laws restricting access to personal and financial information (tax returns, mental health records, etc.) and prohibiting many types of electronic and other surveillance (wiretapping, etc.).

Private 1. Concerning individuals, not the general public and not the government. 2. For private foundation, international law, letter ruling, offering, etc., see those words. Others follow here.

Private attorney general A private individual who goes to court to enforce a public right for all affected citizens.

Private investigator A person who is not a law enforcement officer, but who is licensed to do detective work.

Private law 1. A statute passed to affect one person or group, rather than the general public. This is also called a private bill. 2. The law of relationships among persons and groups (such as the law of contracts, divorce, etc.) as opposed to public law, which concerns relationships between individuals and the government or the operation of government.

Private mortgage insurance Insurance to protect the lender on many loans where the mortgage represents over 80 percent of the home’s market value.

Privateer A ship owned and armed by a private individual that is empowered by a government to fight with enemy ships and capture enemy shipping in time of war. There is an international treaty abolishing privateering, but the U.S. never signed it.

Privatize Convert a business from governmental to private ownership. Compare take private.

Privies See privity and privy.

Privilege Privilege has conflicting and overlapping meanings, including: 1. An advantage; a right to preferential treatment. 2. An exemption from a duty others like you must perform. 3. The right to speak or write defamatory (personally damaging) words because the law allows them in certain circumstances. For example, most words are privileged if spoken completely “in the line of public duty.” 4. A basic right, such as privileges and immunities. 5. A special advantage, as opposed to a right; an advantage that can be taken away. 6. The right to prevent disclosure, or the duty to refrain from disclosing, informa-

Pro interesse suo 383

tion communicated within a specially recognized confidential relationship. See, for example, attorney-client privilege, clergy’s privilege, doctor-patient privilege, executive privilege, journalists’ privilege, and marital communications privilege. 7. See also immunity.

Privileged communication See confidentiality and privilege.

Privileges and immunities Describes the constitutional requirement (Article 4, Section 2, Clause 1) that a state must treat a person from another state as fairly as it treats its own citizens.

Privity 1. Private or “inside” knowledge. 2. A close, direct financial relationship. For example, both the executor (person who administers a will and hands out property) and an heir (person who gets the property) are in privity with the testator (person who wrote the will and gave away the property). Also, privity of contract exists among those persons who actually took part in making the deal. These persons have special rights and duties because of their privity, including the right to enforce the contract. For example, a manufacturer and a seller may be “in privity,” but not the manufacturer and an ultimate buyer.

Privy 1. A person who is in privity (see that word) with another person. The plural is privies. 2. Private.

Prize A ship taken by one country (or by a privateer from that country) from another with which it is at war. When a ship is brought in as a prize, a prize court determines who gets it.

Pro (Latin) For.

Pro bono publico (Latin) “For the public good.” Describes free legal work done by a lawyer to help society. Abbreviated “pro bono.”

Pro confesso (Latin) As if confessed. A decree pro confesso is like a judgment given to a plaintiff by default because the defendant did not appear in court or did not answer the complaint, so the complaint is accepted “as if confessed.”

Pro forma (Latin) 1. As a matter of form; a mere formality. 2. Projected. A pro forma financial statement is one that is projected on the basis of certain assumptions.

Pro hac vice (Latin) “For this one particular occasion only.” For example, when an out-of-state lawyer wants to represent someone before a state court in a case without being permanently admitted to the state bar, the court has the power to permit representation pro hac vice. [pronounce: pro hock vee-chay]

Pro interesse suo (Latin) “According to his interest.” For example, a person who claims a right to property that is burdened with a mortgage, judgment, lease, etc., may ask a court to decide whether or

384 Pro. per.

not (or how much of) the property is his or hers. This is an examination pro interesse suo.

Pro. per. Pro se.

Pro rata Proportionately; by percentage; by a fixed rate; by share. For example, if Tom, Dick, and Harry are owed two, four, and six dollars respectively by John, but John has only six dollars to give out, a pro rata sharing would be one, two, and three dollars respectively. A pro rata clause in an insurance policy says that the company will not pay a higher percentage of a loss than the percentage that company covers of the total insurance coverage from all companies. And a pro rata distribution clause in an insurance policy says that the amount of insurance on each piece of property is in proportion to the value of that property compared to the total value of all property covered.

Pro se (Latin) For himself or herself; in his or her own behalf. For example, pro se representation means that a person will handle his or her own case in court without a lawyer. [pronounce: pro say]

Pro tanto (Latin) For that much; to the extent of; describes a partial payment.

Pro tem (Latin) Short for “pro tempore”; for the time being. Probable cause 1. The U.S. constitutional requirement that law en-

forcement officers present sufficient facts to convince a judge to issue a search warrant or an arrest warrant, and the requirement that no warrant should be issued unless it is more likely than not that the objects sought will be found in the place to be searched or that a crime has been committed by the person to be arrested. 2. In certain situations where an officer cannot obtain a warrant (for example, when the evidence to be searched for might be destroyed or the person to be arrested might escape) an officer may search or arrest if, from what the officer knows, it is more likely than not that a crime is being (or has been) committed. Probable cause does not depend on what the officer finds out after the search or arrest, but on what the officer knew before taking action (“reasonable belief ”). If there was no probable cause to search or arrest, the search or arrest was probably not proper. In each case, it depends on the nature of the suspicion, the need for immediate action, and the intrusiveness of the search.

Probate The process of handling the will and the estate of a dead person. A probate court handles these matters and sometimes handles the problems of minors and others who are not legally competent to manage their affairs.

Probation 1. Allowing a person convicted of a criminal offense to avoid serving a jail sentence imposed on the person, so long as he or she

Procuration 385

abides by certain conditions (usually including supervision by a probation officer). Compare with parole. 2. A trial period. A period during which a person’s continued employment is conditioned on “making good” in the job and during which the person has fewer job rights than permanent employees. The period is often called the probationary period and the person is often called the probationary employee during the period.

Probationer A person on probation (see that word).

Probative Tending to prove or actually proving something.

Probative facts Facts that prove other facts that are needed to resolve a valid issue in a lawsuit; evidentiary facts (see that word).

Probity Honesty; integrity.

Procedural due process See due process and procedural law.

Procedural law The rules of carrying on a civil lawsuit or a criminal case (how to enforce rights in court) as opposed to substantive law (the law of the rights and duties themselves).

Procedure The rules and methods of carrying on a civil lawsuit or a criminal case (pleading, making motions, presenting evidence, etc.). Federal trials are governed by the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure.

Proceeding 1. A case in court. 2. The orderly progression of a case in court. 3. The recorded history of a case. 4. Any official action taken by a governmental body (an agency hearing, a police investigation, etc.).

Proceeds Money or property gained from a sale or other transaction. Process 1. A court’s ordering a defendant to show up in court or risk

losing a lawsuit; a summons. 2. Any court order that “takes jurisdiction over” (brings formally under the court’s power) a person or property. 3. A regular, legal method of operating.

Process patent A patent for a new way of making something or of bringing about a result that has commercial value.

Process server A person with legal authority to formally deliver court papers such as writs and summonses to defendants.

Prochein ami (French) Next friend. [pronounce: pro-shen ah-mee]

Proclamation A type of formal government statement meant for immediate widespread announcement.

Proctor 1. Someone appointed to manage another person’s affairs. 2. A lawyer or representative.

Procuration 1. Making someone else your agent, lawyer, or representative. See proctor. 2. Doing something as someone’s agent, buyer, or

386 Procure

representative. See proctor. 3. Pimping; soliciting for prostitutes. See procure.

Procure 1. Make something happen; get something for someone. 2. Solicit customers for a prostitute.

Procurement 1. Government purchasing; usually by special rules, forms, contracts, etc. 2. Procuration.

Procuring cause 1. See proximate cause. 2. Describes a broker who has started in motion a chain of events leading to the sale of real estate and who is entitled to a commission for this service.

Prodition Treason.

Produce Bring forward; show; yield up. For example, a motion to produce or a motion for production is a request that the judge order the other side to show you specific documents, physical objects, or real estate.

Producing cause 1. See proximate cause. 2. See procuring cause.

Product liability The responsibility of manufacturers (and sometimes sellers) of goods to pay for harm to purchasers (and sometimes other users or even bystanders) caused by a defective product.

Production payment An advance payment for a purchase that is really a loan to allow the manufacture of the thing purchased.

Profer (or profert) See proffer.

Professio juris A made-up Latin word for an agreement in a contract to have the law of one particular state or country decide all questions involving the contract.

Professional association 1. Any group of professionals organized for social, educational, or other purposes; for example, a bar association. 2. A group of persons formed to practice a licensed profession. The term has been used to both include and exclude a professional corporation.

Professional corporation A special type of corporation (see that word) that may be set up by lawyers, doctors, and other licensed professionals. It limits each participant’s liability for the others’ actions and has special tax advantages.

Professional legal secretary A person certified by the National Association of Legal Secretaries.

Professional limited liability company (or partnership) A limited liability company or limited liability partnership (see those words) set up by a group of licensed professionals.

Professional responsibility See Rules of Professional Conduct.

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Proffer 1. To offer or present. 2. Avowal. 3. Do something (such as build some low-cost units in a proposed residential complex) in exchange for a right (such as a permit to build the complex) granted by a government agency. 4. Formally offer a physical object as evidence in a trial.

Profit All gains, including both money and increases in the value of property.

Profit and loss statement See statement of income.

Profit margin 1. Sales minus costs and expenses (including taxes). 2. Sales minus the cost of sales and operating expenses, that figure then divided by sales. A company’s gross profit margin (also called operating margin) is its operating profit divided by its money made on sales. Its net profit margin (also called net ratio) is its net profit divided by its sales. These percentage figures can be used to compare the company with others and to compare efficiency and profitability with prior years.

Profit sharing Describes a plan set up by an employer to distribute part of the firm’s profits to some or all of its employees. A qualified plan (one that meets requirements for tax benefits) must have specific criteria and formulas for who gets what, how, and when.

Profiteering Making unreasonable profits by taking advantage of unusual circumstances; for example, by selling scarce goods at high prices during a war.

Profits a prendre (French) Describes the right to take the growing crops of another person’s land. [pronounce: a prahn-d]

Profits a rendre (French) Describes that which must be rendered or paid; usually rent. [pronounce: a rahn-d]

Programmed costs Fixed charges (see that word), such as those for long-term research, that do not directly produce or sell goods and services. Compare with capacity costs.

Progressive tax A tax that is proportionately greater on higher incomes or greater assets. The federal income tax is progressive, at least in theory. The opposite of a progressive tax is a regressive tax. This hits the poor harder. An example is a sales tax. Even though everyone pays the same tax, it takes a larger part of a poor person’s money to pay it.

Prohibited degrees Blood relations too close to legally marry; for example, brother and sister, grandfather and granddaughter, in most states first cousins, etc.

Prohibition 1. An order to stop certain actions or a warning not to engage in them. For example, a writ of prohibition is an order from a