Daniel Oran - Oran's Dictionary of the Law

388 Prohibitory injunction

higher court telling a lower one to stop proceeding with a lawsuit. 2. The popular name for the period in U.S. history from 1919 to 1933 when the manufacture or sale of alcoholic beverages was illegal.

Prohibitory injunction See mandatory injunction.

Prolixity Use of too many words, facts, theories, etc., in court papers or evidence.

Promise 1. A statement that morally, legally, or in some other way may bind the person who makes it to do something. 2. In contract law, an oral or written statement from one person to another, given in exchange for something of value (which can be another promise). It binds the person making the promise to do something and may give the other person the legal right to demand that it be done.

Promissory estoppel The principle that when Person A makes a promise and expects Person B to do something in reliance upon that promise, then Person B does act in reliance upon that promise, the law will usually help Person B enforce the promise because Person B has relied upon the promise to his or her detriment. Person A is “stopped” from breaking the promise even when there is no consideration to make the promise binding as part of a contract.

Promissory note 1. A document that contains an acknowledgment of a debt and a promise to pay the debt. A promissory note is negotiable if by its terms it can be sold. 2. A negotiable promissory note typically requires the borrower to pay an exact sum of money immediately, when asked for, or by a certain date either “to the order of” a specific person or “to bearer” (the person who physically has it).

Promoter 1. A person who arranges an event or a deal, usually for a percentage of the profits. 2. A person who forms a corporation.

Promulgate Publish; announce officially; put out formally. Pronounce To say formally and officially. For example, a judge pro-

nounces sentence by solemnly saying in open court what sentence a convicted defendant will have to serve.

Proof A body of evidence supporting a contention. Those facts from which a conclusion can be drawn. In this sense, proof can be convincing or unconvincing. But see no. 2. 2. The result of convincing evidence. The conclusion drawn that the evidence is enough to show that something is true or that an argument about facts is correct. There are various standards of proof including: beyond a reasonable doubt (how convincing evidence must be in a criminal trial); by clear and convincing evidence; and by a preponderance (greater weight) of the evidence. In this sense, proof is always convincing. But see no. 1.

Prorogation 389

Proof of claim A sworn statement in a bankruptcy or probate proceeding of how much a creditor is owed.

Proof of loss A sworn statement made to an insurance company of a loss thought to be covered under an insurance policy with the company.

Proper Fit, suitable, or appropriate. For example, a proper party to a lawsuit is a person who has a real, substantial interest in the suit’s outcome, who can conveniently be added to the suit as a party, but without whom the suit can still be decided.

Property 1. Ownership of a thing; the legal right to own a thing. 2. Anything that is owned or can be owned, such as land, automobiles, money, stocks, patents, the right to use a famous actor’s name or picture, etc. Property is usually divided into real (land and things attached to or growing on it) and personal (everything else), but some property is hard to categorize as real or personal. See also intellectual property.

Property tax A state or local tax based on the value of certain property (homes, cars, etc.) owned.

Prophylactic Designed to prevent something.

Proponent The person who offers something, puts something forward, or proposes something.

Proposal 1. An offer that can be accepted to make a contract. 2. A preliminary or exploratory idea for discussion that is not an offer as in no. 1.

Propound To offer, propose, or put forward something. For example, to propound a will is to put it forward and request that it be accepted as valid by the probate court.

Proprietary Having to do with ownership. Proprietary rights or interests are the rights or interests that a person has because of property ownership, or that are an integral part of property ownership. For example, if one person has the sole right to make and sell a medicine, it is a proprietary drug. And the right to vote a share of stock is a proprietary interest of owning it. The proprietary functions of a city (as opposed to its public functions) include such things as sidewalk repair and trash pickup. And a proprietary lease is between tenant-owners of a cooperative apartment building and the owners’ association.

Proprietorship 1. The running of a business. 2. Sole proprietorship (see that word).

Prorate To divide or share proportionately or by shares; see pro rata. Prorogation 1. An agreement in a contract to allow the courts of one

particular state or country to decide all disputes involving the contract. 2. A delay, putting off, or continuance.

390 Proscription

Proscription Prohibiting or restricting something (or the prohibition or restriction itself). Not prescription.

Prosecute 1. Formally start and pursue a civil lawsuit. 2. Charge a person with a crime and bring that person to trial. The process is called prosecution, the person who was harmed by the crime or who made the complaint is a prosecuting witness, and the public official who presents the government’s case is called a prosecutor. 3. Start and carry out any plan or action. For example, to prosecute a patent is to apply for one and follow through on the application until a patent is granted. This application process is documented in a prosecution history (also called a file wrapper).

Prosecutor 1. A public official who presents the government’s case against a person accused of a crime and who asks the court to convict that person. 2. The private individual who accuses a person of a crime is sometimes called the private prosecutor.

Prosecutorial discretion The power of the prosecutor to decide whether or not to prosecute a charge against a person, how serious a charge to press, how large a penalty to request, what kind of a plea bargaining agreement to accept, etc.

Prospective Looking forward; concerning the future; likely or possible. For example, a prospective law is one that applies to situations that arise after it is enacted. Most laws are prospective only.

Prospectus 1. A document put out to describe a corporation and to interest persons in buying its stock. When new stock is sold to the public, the S.E.C. requires a prospectus that contains such things as a statement of income, a balance sheet, an auditor’s report, etc. 2. Any offer (written, by radio or television, etc.) to interest persons in buying any securities, such as stock. 3. A document put out to interest persons in any financial deal (such as the offer to sell a building or the offer of shares in a limited partnership).

Prostitution A person offering her (in most states, his or her) body for sexual purposes in exchange for money. A crime in most states.

Protected class 1. A group of persons protected by statute. 2. A suspect class. See suspect classification.

Protection Most legal uses of “protection” are based on its ordinary language meaning. For protection order, see protective order.

Protective committee A group of stockholders appointed to protect the interests of all holders of that type of stock during the reorganization or liquidation of a corporation.

Provisional 391

Protective custody Putting someone in jail, in a mental hospital, in a secret house, etc., for the person’s own safety, whether or not the person wants it. This can happen to a witness in a case involving dangerous defendants, to a drunk, to a mentally ill person, etc.

can condemn more property than is needed for a public project if a “buffer zone” is useful to protect the environment or the surrounding neighborhood. 2. The principle that a country can assert jurisdiction over a person whose conduct outside the country threatens the country’s security or could interfere with the country’s governmental functions.

Protectorate A country whose international affairs are managed by another country.

Protest 1. A written statement that you do not agree to the legality, justice, or correctness of a payment, but you are paying it while reserving your right to get it back later. 2. A formal certificate of the dishonor of a negotiable instrument (see those words) that has been presented for payment. The document, which must normally be acknowledged by a notary public, is meant to give notice to all persons liable on the negotiable instrument that they may have to pay up on it.

Prothonotary Head clerk of some courts.

Protocol 1. The first draft of an agreement between countries or the preliminary document opening an international meeting. 2. Formalities. 3. The etiquette of international diplomacy, including the ranking of officials. 4. A short summary of a document. 5. The minutes of a meeting (usually initialed by all to show their accuracy).

Prove up Prove.

Province Duty, or area of responsibility.

Provision Money or property held by or sent to the drawee of a bill of exchange in order to pay it upon presentment.

Provisional Temporary or preliminary. For example, a provisional remedy is a court order or an action permitted by a court that helps to enforce the law on a temporary basis. These include temporary injunctions and attachments (see those words).

392 Proviso

Proviso A condition, qualification, or limitation in a document.

Provocation An act by one person that triggers a reaction of rage in a second person. Provocation may reduce the severity of a crime. It may also be a defense to a divorce based on cruelty.

Proximate cause The “legal cause” of an accident or other injury (which may have several actual causes). The proximate cause of an injury is not necessarily the closest thing in time or space to the injury and not necessarily the event that set things in motion because “proximate cause” is a legal, not a physical concept. Some other names for the same idea are “causa causans,” “causa proxima,” and “dominant,” “efficient,” “immediate,” “legal,” “moving,” “next,” or

“producing” cause.

Proxy 1. A person who acts for another person (usually to vote in place of the other person in a meeting the other cannot attend). 2. A document giving the right mentioned in no. 1. 3. A proxy marriage is a marriage ceremony in which someone “stands in” for either the bride or groom (or both). 4. A proxy statement is the document sent or given to stockholders when their voting proxies are requested for a corporate decision. The S.E.C. has rules for when the statements must be given out and what must be in them.

Prudent person rule The principle that a trustee (see that word) may invest trust funds only in traditionally safe investments or risk being personally responsible for losses. These safe investments may be restricted by state law to a specific group of securities called legal investments or the legal list.

Prurient interest A shameful or obsessive interest in immoral or sexual things. “Appealing to prurient interest ” is one of many factors involved in deciding whether speech is obscene.

Psychotherapist-patient privilege Some states’ extension of the doc- tor-patient privilege to certain psychological counsellors.

Pub. L. Public law.

Public 1. Having to do with a state, nation, or the community as a whole. For example, a tax or a government function that will benefit the community as a whole and not merely individual members has a public purpose. 2. Open to all persons.

Public defender A lawyer, paid directly or indirectly with government funds, who represents poor persons accused of a crime.

Public domain 1. Land owned by the government. 2. Describes something free for anyone to use or something not protected by patent or copyright. 3. A public domain citation (see that word) is one that can

Public records exception 393

be found and used without reference to a commercial publisher’s volume and page number system. An online document’s public domain citation is an electronic citation.

Public duty doctrine The principle, applied in some states, that to win a tort suit against the government, the plaintiff must show that the government breached a duty that was owed to the plaintiff (or to a particular class of persons like the plaintiff), not merely owed to the general public.

Public figure Anyone who is famous (or infamous) for what he or she has done or who has come forward to take part in a public controversy. A public figure is given less legal protection against defamation and invasion of privacy than is an ordinary person.

Public function Governmental function.

Public interest 1. A broad term for anything that can affect the general public’s finances, health, rights, etc. For example, a business that is on public property and that the public must deal with is called “affected with” or “clothed by” a public interest. 2. The practice of public interest law is often done on a nonprofit basis for a public cause, such as protection of the environment.

Public lands 1. Land owned by the government. 2. Land owned by the government and not set aside for a particular purpose, so subject to possible sale without any change in the laws.

Public law 1. The study of law that has to do with either the operation of government or the relationship between the government and persons. Examples are constitutional law, administrative law, criminal law, etc.). 2. A name given at time of enactment to most U.S. laws (and to some state laws), reflecting (by public law number) when the law was enacted. For example, “Public Law No. 100–33” refers to the 33d U.S. law passed by the 100th Congress. U.S. public laws are later collected by subject area in the United States Code and given additional citations.

Public office A vague term for a government job that requires independent decision-making. A mayor is a public official; a police chief might be, and a police officer is probably not.

Public policy A vague word that can be as broad as “what is good for (or will not harm) the general public” or “the law.”

Public records exception A hearsay exception (see that word) for most documents that are actively produced by a government agency (but not for most documents that are submitted by others and passively filed).

394 Public service (or utilities) commission

Public service (or utilities) commission A state agency that regulates private businesses that have a state charter, perform a necessary public function, and need special government help. These private businesses (such as railroads or power companies) are called public utilities, are often monopolies, and must provide service to all persons fairly.

Public utility 1. See public service commission. 2. The Public Utility Holding Company Act is a federal law that broke up large power and other companies and forced them under state or local control.

Public works Government construction projects.

Publication Making public. For example, in copyright law, publication is offering a book, a movie, etc., to the public by sale or other distribution; in the law of defamation, publication usually means communicating defamatory information to a person other than the person defamed; in the law of wills, publication is telling a witness that you intend a document to be your will; in the law of court procedure, publication is printing a legal notice in a newspaper; and in banking law, publication is trying to collect money on a forged check, a counterfeit dollar bill, etc.

Publici juris (Latin) “Of public rights.” Describes common public rights or property, such as the right to breathe the air.

Publicly held corporation A corporation with stock sold to a large number of persons.

Publish 1. See publication. 2. Try to collect on a forged document (check, dollar bill, etc.).

Puffing 1. Salesmanship by a seller that is mere general bragging about what is sold, rather than definite promises about it or intentionally misleading information. 2. Secret bidding for the seller at an auction to raise the price.

Puis (or puisne) Lower ranking or junior.

Pullman doctrine The principle that federal courts should usually abstain from deciding cases that involve unsettled state law questions when state court resolution of the questions might end the need to decide federal constitutional questions. Compare with Burford doctrine and Younger doctrine.

Punitive damages See damages.

Pur autre vie See autre vie.

Purchase 1. Buy. 2. According to the Uniform Commercial Code, “any voluntary transaction creating an interest in property,” including a gift, a mortgage, etc.

Putative marriage 395

Purchase money mortgage A buyer’s financing of part of a purchase by giving a mortgage on the property to the seller as security for the loan.

Purchase money resulting trust When a person puts up money to buy something for him or herself, but held in another person’s name, title to that property is held by a purchase money resulting trust in favor of the person putting up the money.

Purchase order A purchaser’s document that authorizes a person or a company to deliver goods or perform services. The use of a purchase order implies a promise to pay for the goods or services.

Pure plea 1. An affirmative defense. 2. A legal pleading that requires no further paperwork to be acted upon by a judge.

Pure race statute (or act) See recording acts.

Purge 1. Cleanse, clear, or exonerate from a charge, from guilt, or from a contract. 2. In the law of wills, “purge” means to omit the gift to a person named in a will (because that person is legally prohibited from getting anything) without destroying the rest of the will.

Purport 1. Imply, profess outwardly, or give an impression (sometimes, a false impression). 2. The meaning, intent, or purpose of something.

Purpresture Taking something public for private use; for example, fencing in part of a public park to use as if part of your private land.

Pursuant In accordance with; in carrying out. For example, “pursuant to my authority as governor” means “I have the authority to do what I am about to do because I am governor.”

Pursuit of happiness The phrase used in the Constitution to summarize those rights not specifically mentioned, such as freedom of contract and occupation, domestic rights, etc.

Purview The purpose, scope, and design of a statute or other enacted law.

Put An option (see that word) to sell a particular stock or commodity at a certain price for a certain time. The person who buys a put option expects prices to fall. If they don’t, he or she loses the purchase price of the put, but does not have to exercise (use) it.

Putative Alleged, supposed, or commonly known as. For example, a putative father is the alleged father of an “illegitimate child.”

Putative marriage A marriage in which a technical legal defect, unknown to the husband and wife, is discovered. These marriages are usually considered to be still valid.

396 Pyramid sales scheme

Pyramid sales scheme A type of sales plan under which, once you become a “distributor” or “qualified,” you get commissions not only for products you sell but also for products sold by persons you bring into the business (“under you in the pyramid”). It is also known as a “referral sales plan,” a “chain referral plan,” and a “multilevel distributorship.” It is illegal in some forms.

Pyramiding The use of a small amount of money or of “paper profits” to finance buying large amounts of stock, to control companies, etc. This is using things bought with leverage to purchase more things, gaining greater leverage and taking greater risk.