Susan Ellis Wild - Webster's New World Law Dictionary

risk management n. The process of assessing risk and acting in such a manner, or prescribing policies and procedures, so as to avoid or minimize loss associated with such risk.

risk of loss n. A financial risk of being responsible for destruction or damage or the inability to locate property that a party may get stuck with when a transfer of property is occurring. According to the Uniform Commercial Code, the risk is borne by the seller until some contractual event occurs, at which point the risk shifts to the buyer. The phrase is also used in insurance contracts to denote the hazards that are covered by the insurance policy.

robbery n. The illegal stealing or taking of another’s property from that person or another by violence or by threat of violence; aggravated larceny. The personal threat of violence and implicit fear on the part of the victim are essential in order to distinguish robbery from burglary.

armed robbery. Robbery committed by a felon carrying a dangerous weapon, whether or not that weapon is actually used or even shown. The crime is tried as any robbery would be in most states, but the weapon serves to bump up the severity of the crime.

ROR abbr. See release on own recognizance.

Roth IRA n. A special form of individual retirement account, in which contributions are not tax deductible when made, but that compensates by making the gains distributable tax free upon the owner’s reaching age 701⁄2. See also individual retirement account and Keogh

Plan.

royalty n. 1 A payment made to the creator of an intellectual property (author, inventor, and so on) for each copy of the property that is sold. 2 A

share of the profit derived from real property that is reserved for the owner in exchange for granting a lessee, who is going to mine or drill the mineral rights on that land.

R.S. abbr. See revised statutes.

rule n. An established or prescribed standard for action; an authoritative principal; the general norm for conduct in a specific kind of situation; a principle, standard, or regulation that governs the internal workings of a court or an agency.

rule v. 1 To exercise control; for example, Diane’s parents rule with an iron fist. 2 Deciding a legal point or question; for example, the judge ruled the question was admissible.

rule against perpetuities n. The common law principle that prohibits granting of an estate that will not vest within 21 years of that granting, that is, within 21 years of the death of the person who created the interest. Its purpose is to limit the amount of time that title to a property could be suspended and thereby keep the property from becoming available in the market.

rule in Shelley’s Case n. This rule governing property dates from 1324 and states that if a property is bequeathed to a person and a remainder to his heirs, the remainder is considered to belong to the person named in the bequeathal so that the person has a fee simple absolute. See also fee simple.

rule in Wild’s Case n. A property law rule of construction that considers a property granted to A and A’s children as a fee tail if A has no children as of the effective date of the grant, but as a joint tenancy if A does have children at that time.

rule of capture n. 1 Acquiring the ownership of property where there previously was no ownership; thereby, any wild animals captured belong to the person who captures them, regardless of whose property they were upon previously. 2 If the recipient of property displays an intent to take full control of that property and not just pass it on to another, that person captures full rights to that property including the ability to pass it on to his or her heirs.

rule of law n. A substantive legal principle; the prevailing of regular power rather than arbitrary power; the principle that all citizens are subject to the judicial decisions in their states as well as those of the courts of the United States, and that such decisions are the result of constitutional principles.

running with the land adj. Description of any right or responsibility which passes with the transfer of land, often with reference to easements or covenants. For example, where one driveway serves as an entrance to two homes, but is owned by only one of the homeowners, the right to use the driveway may be considered to “run with the land” upon sale of the home to another party.

S

salable n. In such a condition as to be appropriate for sale in the marketplace for the ordinary selling price, legal to sell, and free from any noticeable flaws. Same as merchantable.

salary, fixed n. An agreed-upon amount of money in exchange for services that may be set at a fixed hourly rate, but that is usually figured on a yearly basis and does not vary with the amount of goods the employer sells. See also commission.

sale n. A transfer of property or title thereto in exchange for a sum of money; the agreement or contract by which such a transfer takes place. A sale requires a free offer in exchange for a freely agreed-upon purchase price between two individuals who are competent to contract with each other, and who have mutually agreed to the deal. An actual exchange or promised exchange of money is required. Finally, the object, parcel, or title being sold must be capable of being transferred by the seller.

conditional sale. A sale subject to certain events occurring, for example, a transaction to sell one’s home, conditioned upon the sale by buyer of his own home. Also known as contingent sale.

sheriff’s sale. A forced sale of property for which full payment has not been made; proceeds of such sale are remitted to the creditor in full or partial satisfaction of the debt.

tax sale. A forced sale of assets of a taxpayer to satisfy tax obligations that have not been paid.

sale on approval n. A transaction (usually involving goods) in which the buyer is permitted to use goods for a period, and then return them if they do not meet the buyer’s needs or expectation, even though the goods are not defective. If the goods were delivered for resale, the transaction is a sale and return or a consignment.

sale or exchange n. A tax law phrase describing a voluntary exchange of property for other property as distinct from a gift or a contribution, and for which a federally taxable gain or loss may attach.

sales tax n. A percent of the con- sumer-paid sales price of certain goods in certain states and municipalities.

salvage n. In general, it is the value of a piece of equipment or other property after it has been functionally rendered useless for the purpose for which it was intended. In the case of a totally wrecked automobile, for example, it is the depreciated value of whatever usable parts that can be resold in used condition, plus the value per pound of the remaining scrap metal; in maritime law it’s compensation for a service voluntarily given to a vessel in peril that removes it from danger by the sea; in insurance law, the first definition applies, with the proviso that the amount of salvage is deducted from what is paid to the insured.

salvage value n. An asset’s value after it has become useless to the owner. It is often figured through some means of depreciation and must be subtracted from the basis.

sanction 1 n. A penalty imposed for violating accepted social norms. A sanction may be civil or criminal in nature. Criminal sanctions are either fine, imprisonment, or both. 2 n. Authorization

and/or approval by someone in a position of authority; for example, 3 v. the act of imposing a penalty.

sandbagging n. A practice by a trial lawyer of noticing but not mentioning a possible error during a trial in hopes of using it as a basis for appeal if the court fails to correct it. Because objections must be made in a timely manner, sandbagging usually doesn’t keep the issue alive.

sane n. The condition of having a sound and rational mind; being mentally healthy and having the ability to distinguish right from wrong. In all jurisdictions, being sane is presumed, and it is up to the defense to prove the contrary to be true. Synonymous with sanity. See also insanity and insanity defense.

sanity hearing. 1 An examination of one’s mental competency to see whether one is mentally equipped to stand trial. 2 A court proceeding, held to determine whether a person’s mental health dictates institutionalization.

satisfaction n. A giving of something in order to release oneself from, or to satisfy, some outstanding obligation, be it legal or moral. Satisfaction requires the giving of one thing for another and should be distinguished from performance, which requires only the promising to give something. Also, payment in full, done to fulfill a contractual obligation or debt.

savings and loan association See bank.

savings bank See bank.

saving clause n. A provision in a statute or contract that if any clause is determined to be unenforceable, the remainder of the statute or contract will remain intact and enforceable.

scalping 1 n. The sale of something (especially a ticket for a popular show or sporting event) at a price far in excess of its face value and usually just before the event’s beginning; the buying of a security by someone with inside knowledge, such as a broker, before recommending that security for purchase to his/her client(s). Both the foregoing are considered unethical, and the first is illegal in many jurisdictions. 2 v. The act of selling items at a price far in excess of face value.

scandalous matter n. Immoral or indecent content; in legal pleadings, content that is impertinent or highly irrelevant and therefore subject to being stricken as improper.

scienter n. Latin. Knowingly. 1 A knowledge beforehand of the consequences of an action or failure to act that makes a person legally responsible for those consequences. Such advance knowledge may make the person subject to civil or criminal punishment. 2 An intention to deceive or defraud (usually applied to stock fraud). See also knowing and mens rea.

scope of authority n. In the law of agency, whatever amount of authority an agent has been delegated or might reasonably be expected to be delegated in order to carry out his/her principal’s business. See also respondeat superior and scope of employment.

scope of employment n. The complete range of activities an employee might reasonably be expected to perform while carrying out the business of the employer.

S corporation See corporation.

scrip dividend See dividend.

scrivener n. A writer; refers to a professional drafter of contracts or other legal documents. It is also applied to someone who is an agent for another and who, for a fee, manages that person’s money, property, and/or securities. Term used commonly in Europe.

scrivener’s error n. Mistake by preparer of a document that results in intent of the parties being thwarted; basis for not enforcing the document or reforming it. See mutual mistake.

seal 1 n. In common law, an impression in wax, wafer, or other substance put on a document and attesting to its authenticity; a similar impression placed over the edge of an envelope, its unbroken condition indicating that the envelope is unopened, hence its contents are untampered with. A corporation’s seal is at times called a common seal. 2 v. the act of placing an impression upon an envelope or document to designate that it is undisturbed, the act of closing.

sealed instrument n. A document that has been signed and to which a seal has been affixed. Under common law and by some statutes, that is recognized as convincing evidence that the obligation on the signer is binding. The Uniform Commercial Code holds that laws applying to sealed instruments are not valid with regard to the sale of goods or negotiable papers. See also contract.

sealing of records n. The customary closing of criminal records of youthful offenders, mandated in some states by law, so that they can be viewed only by persons obtaining a court order to do so; the same as the first definition with regard to certain other cases. See also expungement of record.

search 1 n. A police examination of a person’s physical body, property, abode, or other area where the person would

have an expectation of privacy, in order to find incriminating evidence. For a search to be legal, there must be probable cause, because the Fourth Amendment to the United States Constitution prohibits unreasonable search and seizure. 2 v. To look for, as in the case of looking for evidence. See also frisk.

search and seizure n. The same as search, with the added provision of retention of any contraband or evidence of criminal activity that is found. Generally, a warrant is required, and the scope of that warrant will be very limited, due to Fourth Amendment constraints. There are, however, certain circumstances in which a warrant is not needed, including seizure of abandoned items, a hidden weapon, or contraband items that are in plain view.

search engine n. An online tool that permits a researcher to type in keywords and returns a selection of Internet sources for information on that keyword (known as hits). There are two main search engines for legal research, and both are based upon subscription for fees: Lexis and Westlaw.

search of title See title search.

search warrant n. A written order by a judge authorizing the examination of a specified place and the seizing of evidence found there. See also warrant.

seasonable adj. In a timely manner; within the time agreed upon; within a reasonable amount of time.

seasonably adv. Used synonymously with reasonably.

S.E.C. See Securities and Exchange

Commission.

secondary adj. Subordinate; not of primary importance; subsequent.

secondary boycott See boycott.

secondary distribution n. An organized offering of a block of stock by a large share holder of a stock that has already been issued, typically by corporate founders or major investors.

secondary liability See liability.

second-degree See murder and principal.

secretary n. An officer of a corporation charged with responsibility for keeping records and taking minutes.

secrets of trade n. See trade secrets.

section n. A definable portion of a town, county, or other geographic region; a land unit equal to one square mile.

secured creditor n. A creditor who is holding security in the form of a lien sufficient to cover the amount that the debtor owes, as in a security interest in an automobile by the lender that financed its purchase.

secured transaction n. Any business transaction involving the title to property as collateral for the borrowing of money.

securities n. Stocks, bonds, and the like; any instrument of secured indebtedness or of a right to participate in the profits or assets of a profit making concern. Traditionally, securities have been a major area of investment and speculation by individuals and banks.

securities acts n. A federal or state law governing the issuance, registration, offering, and trading of securities in order to protect the public by assuring against fraudulent practices.

Securities Act of 1933 n. A federal law governing mainly the issuance, registration, and distribution of securities by the issuer. The objective of the act is to give full disclosure of all facts related

to the security being offered, so that potential investors are able to make informed decisions about whether or not to invest.

Securities and Exchange Commission n. The federal administrative agency established by the Securities Exchange Act of 1934, in order to supervise and regulate the issuing and trading of securities and to eliminate fraudulent or unfair practices. It is a regulating agency and is not judicial in nature, although it may pursue judicial remedies in federal court. Abbreviated SEC.

Securities Exchange Act of 1934 n.

A federal law designed to regulate postissuance trading of securities by regulating security brokers and exchanges. State regulations are allowed to continue to govern intrastate transactions, as long as they do not conflict with the federal law. The act established the

Securities and Exchange Commission.

security n. 1 Safety; the condition of being protected against harm. 2 Collateral given or promised to guarantee the repayment of a debt. 3 A document that is evidence of ownership in a corporation (for example, a stock or share), or a creditor’s being owed money by a corporation or government (for example, a bond).

security deposit n. Money held by a landlord to ensure that the tenant abides by the lease agreement and does no damage to the property above nor- mal-use wear. It is a fund from which the landlord may draw to make repairs, if necessary, upon termination of the lease; any pledge of property or money of a debtor to acquire an obligation. See also obligation.

security interest n. An interest in property created by the operation of law or by agreement to repay a loan; a lien on personal property created by an agreement.

purchase-money security interest.

Interest taken by the collateral’s seller, such as an automobile. It is a purchase-money security interest, created by a bank, allowing one to pay off the cost of a car on an installment basis while enjoying its use. The bank retains the title until the full amount (along with interest) has been paid.

sedition n. An activity or communication aimed at overthrowing governmental authority. Sedition acts were passed in the United States as early as 1798 and as recently as World War I. The United States Supreme Court ruled in 1919 that communications urging sedition could only be punished if there was a clear and present danger. Otherwise, it was a contradiction of the First Amendment’s guarantee of free speech.

seisin n. Ownership of land; used in early British law, because ownership of the land belonged to the sovereign. It referred to the person in possession of a freehold estate. See also covenant.

seizure n. The act of confiscating a person’s property by legal process; a forcible taking of property into custody by a court.

self-dealing n. Participating in a transaction for one’s own personal benefit rather than for the one owed a fiduciary duty; for example, a trustee using property held in trust for her own benefit. Many states have laws prohibiting such action, and there are federal statutes that do so under certain circumstances.

self defense adj. Description of actions taken to protect oneself, as in a shooting of a perpetrator by a police officer upon whom the perpetrator has pulled a gun.

self-executing adj. That which takes effect without further action, as with a statute or court order.

self-help n. A person’s attempt to remedy a wrong perceived done to him by that person’s own actions, rather than through the legal system. Under the Uniform Commercial Code, a creditor may take possession of a debtor’s collateral upon default, if it can be done without breaching the peace.

self-incrimination, privilege against n. A privilege granted by the Fifth Amendment to the United States

Constitution, which bars the federal government from forcing a criminal defendant to give testimony against himor herself. Through the due process clause of Fourteenth Amendment, this privilege has become applicable to state proceedings, whether criminal or civil, and is often referred to simply as, “pleading the Fifth.” The rule does not apply to self-incrimination by non-testimonial means; therefore, the individual is not protected against fingerprinting or DNA evidence being compelled.

seller n. A vendor; one who sells or initiates contracts to sell goods; the one who transfers property as a result of a sales contract.

senile dementia See senility.

senility n. A mental feebleness or insanity that results from old age and is both incurable and progressive. A person so afflicted is not capable of entering into a binding contract or of executing a will. See also competent and incompetent.

sentence 1 n. The pronouncement of punishment by a court following a criminal defendant having been found guilty of a crime. 2 v. The handing down of a term of punishment by a court.

cumulative sentences. See consecutive sentences.

concurrent sentences. Two or more periods of incarceration time that are to be served simultaneously. Concurrent sentences have the

effect of being a single period of confinement, with the longer one being the limit; for example, a person sentenced to serve concurrent sentences of ten and twelve years concurrently will serve a maximum of twelve years.

conditional discharge sentence. The person is given no confinement, as long as she performs or does not perform certain specified acts. Failure to follow sentencing provisions may result in confinement after a hearing. See also probation.

consecutive sentences. Two or more periods of incarceration time that are to be served in succession. Consecutive sentences have the effect of being the sum of the periods of confinement named, so a person sentenced to serve consecutive sentences of ten and twelve years will serve a maximum of twenty-two years.

deferred sentence. A sentence that will not be imposed unless the defendant fails to fulfill the conditions of probation.

determinate sentence. A sentence of confinement for a specific length of time rather than for an unspecified period.

extended sentence. An infliction of a more severe period of confinement than is normal for an offense because the perpetrator is a repeat or habitual offender, or where there is a perception that the offender represents a continuing danger to society.

indeterminate sentence. A sentence of an unspecified duration, such as from 10 to 25 years, or one that a parole board can reduce after the statutory minimum has been served.

mandatory sentence. A sentence spelled out by law and over which the judge has no discretionary power to tailor to the person being sentenced.

split sentence. A sentence in which there is enough of a period of confinement to give the wrongdoer a taste of imprisonment, followed by a period of probation, with the second usually being the longer part of the term.

suspended sentence. See conditional discharge sentence.

separable adj. Capable of being split or divided into its component parts.

separable controversy n. A claim that is independent from, and capable of being separated out from the other claims in a lawsuit. It is used most often if a part of a larger suit can stand alone as a suit in a federal court, in which case, the whole suit is statutorily removable to a federal court.

separate but equal n. The onceargued doctrine that all races are treated fairly when substantially equal facilities are made available to all, even though the races—meaning especially African Americans and Caucasians—are restricted to separate facilities. It was the argument of segregationists during the civil-rights controversy in the 1950s and ‘60s and was ultimately ruled to be in violation of the equal protection clause of the Fourteenth Amendment. The doctrine was established in Plessy v. Ferguson (1896) and overturned in

Brown v. Board of Education (1954). It was found that separate is inherently unequal, and that segregation of whites from blacks in schools created a sense of inferiority that tended to impede educational and mental development of African-American children.

separation n. 1 The condition of a husband and wife who remain married but who live apart, whether by mutual agreement or by decree of a court. See also divorce. 2 Termination of an employment contact.

separation agreement n. A written agreement between husband and wife in contemplation of divorce detailing how their property is to divided, how alimony or child support is to be paid and in what amount by whom to the other, and custodial arrangements for children. Such a paper is legally enforceable and may have income-tax implications if the couple has physically separate domiciles.

separation of powers n. The separation of the power of the states from that of the federal government and the division of the federal government into three branches (executive, legislative, and judicial), each of which has specific powers upon which neither of the others can usurp. These checks and balances are given large credit for the prevention of a tyrant ever seizing power in this country.

sequester v. To isolate or keep apart from all others, as in sequestering certain funds or sequestering a jury. See also sequestration.

sequestration n. 1 The isolation of a trial jury in the custody of the court for the duration of a trial in order to prevent tampering or their hearing outside testimony; keeping witnesses apart from one another and outside the courtroom; 2 the placement of an item or monies in dispute with an independent party pending resolution of litigation between two making claim to the item or monies.

serial bond See bond.

seriatim adv. Latin. In sequence. Successively; in successive order, one by one; in due order; sequentially, one at a time.

series bond See bond.

servant n. One who is employed to work under the immediate control and instruction of the employer.

serve v. 1 To deliver a legal document, especially a process or notice; to present a legal notice or subpoena to a person as required by law. 2 To spend time in the armed forces or in some uniformed service (police, fire, and so on). See also service.

service n. 1 The formal delivery of a subpoena, writ, or other legal notice or process. 2 The doing of something useful or helpful for another individual or for a company in exchange for a fee. 3 The time spent in the military, as in, “in the service of one’s country.”

service by publication. A publication of a notice in a newspaper or other publication in lieu of personal service. In some jurisdictions, the mailing of the news clipping to the last known address of the person is required.

substituted service by. A presenting of service to a recognized agent of the party or by mailing notice to that party or any other way permitted by law other than personal service.

services of process n. A communication of the court papers or process to the defendant in a timely manner, so that the defendant has the opportunity to prepare a defense and to appear and state his/her case.

servient adj. Denoting an estate subject to an easement or servitude. See also estate and easement.

servient estate See estate and easement.

servitude n. 1 A right to use another’s property without ownership. See easement, license, profit. 2 A condition of enforced compulsory service.

servitude, equitable n. An easement by necessity. See easement.

session n. The number of hours within a day that a given body is performing its duties; a meeting of a court or a legislative body for the purpose of performing its business.

session laws n. A bound volume of the statutes enacted by a legislative body during a single annual or biennial session; a collection of all of those aforementioned statutes.

set-aside n. Something, such as an amount of money, that is reserved for some particular later use.

set aside v. To void or annul a judicial decision, order, and so on, usually on a motion to set aside by the party that is affected detrimentally and based upon some irregularity in the original proceeding.

setback n. The minimum distance from the property line to where a structure may be built, as regulated by zoning statutes or restrictions in the deeds in various locales. Meant to keep houses from being built so close to each other that they cut off the light to and ventilation from a neighbor’s home. Setback also applies to how close a structure may be built to a road.

setoff n. A counterclaim against the plaintiff by the defendant arising from a cause of action other than that she is being sued for; a reduction in the amount of a settlement by the amount the debtor is owed by the creditor. See also counterclaim and cross-claim.

settlement n. An agreement achieved between the adversaries before judgment in a trial, or before the trial begins, thereby obviating the need for it; completed payment of a debt or contractual obligation; a closing on a house; the completion by the executor of an estate of its distribution.

settlor n. Someone who creates a trust by making a settlement of property, real or personal. See also donor and trustor.

that are independent of one another, such that each part is capable of enforcement even if remaining part or parts are stricken or found unconstitutional.

several adj. More than one but fewer than many (said of persons, places, or things); separate or distinct, but not requisitely independent (said of liability); various or differing (said of things). See also joint and several liability.

severalty n. A condition of individuality in the holding of land. A tenant in severalty is the exclusive holder of the land for the duration of his or her estate, as distinct from holding a joint tenancy.

severance n. 1 A severing or cutting off; in criminal law the process of bringing a particular charge out of many so that only one issue, or a few closely related ones, is before the jury at a time, while reserving the right to bring other charges later; the separating of the claims of two or more parties for any of a number of reasons; the ending of a joint tenancy. 2 The removal of something attached to real property, such as crops or minerals, so that it becomes personal property instead of a part of the land.

sex offender n. A person convicted of a sexual offense, such as rape, sexual assault, or lewdness. Some states require sexual offenders to be registered for life. Sexual activity between consenting adults of the same sex is an offense in certain states.

sexual abuse See abuse.