Exam 2 Vocabulary for Chapters 6 & 9-13

Abandoned property

Property that the original owner has discarded. Anyone who finds that property becomes its owner by possessing it.

Absolute privilege

The right to make any statement, true or false, about someone and not be held liable for defamation.

Accord and satisfaction

Discharge by mutual agreement whereby the parties wish to rescind an original agreement and substitute a new one for it.

Actual cause

A factual matter of whether the defendant's conduct resulted in the plaintiff's injury.

Actus reus

Wrongful behavior or guilty act. Must prove that someone did the prohibited act.

Adverse possession

Acquiring ownership of realty by openly treating it as one's own, with neither protest nor permission from the real owner, for a statutorily established period of time.

Appropriation

A privacy tort that consists of using a person's name or likeness for commercial gain without the person's permission.

Arraignment

Formal appearance of the defendant in court to answer the indictment by entering a plea of guilty or not guilty.

Arrest

To seize and hold under the authority of the law.

Assault

Intentional placing of a person in fear or apprehension of an immediate, offensive bodily contact.

Assignment

The present transfer of an existing right.

Assumption of the risk

A defense to negligence based on showing that the plaintiff voluntarily and unreasonably encountered a known risk and that the harm the plaintiff suffered was the harm that was risked.

Bail

An amount of money the defendant pays to the court upon release from custody as security that he or she will return for trial.

Bailee

Party to whom possession of personal property has been transferred.

Bailment

A relationship in which on person (the bailor) transfers possession of personal property to another (the bailee) to be used in an agreed-on manner for an agreed-on period of time.

Bailor

Party who transfers possession of personal property to another.

Battery

Intentional, unwanted, and offensive bodily contact.

Bench trial

Occurs when the defendant declines a jury trial and the case is heard by a judge alone.

Bilateral contract

The exchange of one promise for another promise.

Booking

The filing of criminal charges against the defendant.

Breach of contract

Failure by one of the parties to perform their obligations under the contract at the time performance is due.

Bribery

The offering, giving, soliciting or receiving of money or any object of value for the purpose of influencing the judgement or conduct of a person in a position of trust, especially a government official.

Co-ownership

Ownership of land by multiple persons or business organizations; all tenants have an equal right to occupy all of the property.

Commercial impracticability

Situation that makes performance of a contract unreasonably expensive, injurious, or costly to a party.

Common law

Case law. Referred to as such because it originated with the law of English courts. Governs contracts dealing with real property, personal property, services, and employment contracts.

Comparative negligence

A defense that allocates recovery based on percentage of fault allocated to plaintiff and defendant; available in either pure or modified form.

Compensatory damages

Monetary damages awarded for a breach of contract that results in higher costs or lost profits for the injured party. Most common type of damages sought in tort cases. Designed to make the victim whole again or to put the victim in the position he or she would have been in had the tort never taken place. Includes compensations for all of the injuries that the tortfeasor caused to the victim and his or her property.

Competency

A person's ability to understand the nature of the transaction and the consequences of entering into it at the time the contract was entered into.

Complete performance

Completion of all the terms of the contract.

Computer information transaction

An agreement to create, transfer, or license computer information.

Condemnation

The process whereby the government acquires the ownership of private property for a public use over the protest of the owner.

Condition precedent

A particular event that must take place to give rise to a duty of performance of a contract.

Condition subsequent

A particular event that, when it follows the execution of a contract, terminates the contract.

Conditional estate

The right to own and possess the land, subject to a condition whose happening (or nonhappening) will terminate the estate.

Conditional privilege

The right to make a false statement about someone and not be held liable for defamation provided the statement was made without malice.

Consent agreement

A contract in which the violator agrees to cease engaging in the illegal activity.

Consideration

A bargained-for exchange of promises in which a legal detriment is suffered by the promisee.

Contract

A legally enforceable exchange of promises or an exchange of a promise for an act.

Contributory negligence

A defense to negligence that consist of proving that the plaintiff did not exercise the ordinary degree of care to protect against an unreasonable risk of harm and that this failure contributed to causing the plaintiff's harm.

Conversion

Intentional permanent removal of property from the rightful owner's possession and control.

Cooperative

Investor resident acquires stock in the corporation that owns the facility and receives a permanent lease on one unit of the facility. A board of directors is generally elected from among the unit owners to manage the facility.

Covenant against encumbrances

Promise that there are no mortgages or liens against the property that are not stated in the deed.

Covenant for quiet enjoyment

Promise that the grantee will not be disturbed by anyone who has a better claim to title of the property and a promise to defend the grantee's title against such claims or to reimburse the grantee for any money spent in the defense or settlement of such claims.

Covenant of further assurances

Promises that the grantor will provide the grantee with any additional documents that the grantee needs to perfect his or her title to the property.

Covenant of the right to convey

Promise that the grantor has the right to convey the property.

Creditor-beneficiary contract

A contract in which the promisee obtains a promise from the promisor to fulfill a legal obligation of the promisee to a third party.

Criminal fraud

Intentional use of some sort of misrepresentation to gain an advantage over another party.

Declaration of Covenants, Conditions, and Restrictions (CC&Rs)

Filed when a condominium is developed. Contains the architectural and use restrictions for the condominium development, assessments, and instructions for forming the condominium association that will manage the condominium. The association has the power to levy assessments against the unit owners in order to manage, maintain, insure, repair, and replace the common areas.

Deed

Instrument of conveyance of property.

Defalcation

The misappropriation of trust funds or money held in a fiduciary capacity.

Defamation

Intentional publication (communication to a third party) of a false statement that is harmful to the plaintiff's reputation.

Defense of another

Defense to a battery against another. One may defend that person with the same degree of force that one would reasonably use to defend oneself, so long as the third party is unable to act in his or her own defense and there is a socially recognized duty to defend that person.

Discharge by mutual agreement

After a contract is formed, the parties may agree that they should rescind (cancel) the contract because some unforeseen event took place that makes its fulfillment financially impracticable.

Discharged

The status of a contract when it is terminated.

Disclaimer

Disavowal of liability for breach of warranty by the manufacturer or seller of a good in advance of the sale of the good.

Disparagement

Intentionally defaming a business product or service.

Donative intent

Intent to transfer ownership to another at the time the donor makes actual or constructive delivery of the gift to the donee.

Donee-beneficiary contract

A contract in which the promisee obtains a promise from the promisor to make a gift to a third party.

Duress defense

An affirmative defense claiming that the defendant was forced to commit the wrongful act by threat of immediate bodily harm or loss of life.

Duress

Any wrongful act or threat that prevents a party from exercising free will when executing a contract.

Duty

The standard of care that the defendant owes the plaintiff.

Easement by express agreement

Arises when the landowner expressly agrees to allow the holder of the easement to use the land in question for the agreed-upon purpose.

Easement by necessity

Arises when a piece of property is divided and, as a result, one portion is landlocked. The owner of the landlocked portion has an easement to cross the other parcel for purposes of entrance to and exit from the land.

Easement by prescription

Arises under state law when one openly uses a portion of another's property for a statutory period of time (usually 25 years).

Easement

An irrevocable right to use some portion of another's land for a specific purpose.

Embezzlement

The wrongful conversion of the property of another by one who is lawfully in possession of that property.

Eminent domain

The constitutional right of the government to take privately owned real property for a public purpose in exchange for just compensation to the owner.

Entrapment

An affirmative defense claiming that the idea for the crime did not originate with the defendant but was put into the defendant's mind by a police officer or other government official.

Equitable remedies

Nonmonetary damages awarded for breach of contract when monetary damages would be inadequate or impracticable.

Exclusionary Rule

Evidence obtained in violation of constitutional rights set forth in fourth, fifth, and sixth amendments is normally not admissible at trial. Often called the "Poison Tree" rule; the evidence is the "poisoned fruit" from the "poisoned tree" of violating constitutional rights.

Executed contract

A contract of which all the terms have been performed.

Executed

The condition of a properly drafted deed that has been signed by the grantor and the grantee.

Executory contract

A contract in which all the terms have not been completed or performed.

Express contract

An exchange of oral or written promises between parties, which are enforceable in a court of law.

Express warranty

A warranty that is clearly stated by the seller or manufacturer. Created by a seller in one of three ways

False entries

The making of an entry into the books of a bank or corporation that is designed to represent the existence of funds that do not exist.

False imprisonment

The intentional restraint of confinement of a person against that person's will and without justification.

False light

A privacy tort that consists of intentionally taking actions that would lead observers to make false assumptions about the person.

False pretenses

A designed misrepresentation of existing facts or conditions by which a person obtains another's money or goods, such as the writing of a worthless check.

False token

A false document or sign of existence used to perpetrate a fraud, such as making counterfeit money.

Fee simple absolute

The right to own and possess the land against all others, without conditions.

Felony

A serious crime that is punishable by death or imprisonment in a penitentiary for more than one year. Defendants are entitled to a jury trial.

First appearance

Appearance of the defendant before a magistrate, who determines whether there was a probable cause for the arrest.

Fixture

An item that is initially a piece of personal property but is later attached permanently to the realty and is treated as part of the realty.

Forgery

The material altering of anything in writing that, if genuine, might be the foundation of a legal liability.

Fraud

Misrepresentation of a material fact made with intent to deceive the other party to a contract, who reasonably relied on the misrepresentation and was injured as a result. See also

Fraudulent concealment

The suppression of a material fact that the person is legally bound to disclose.

Future interest

The present right to possess and own the land in the future.

General warranty deed

A deed that promises that the grantor owns the land and has the right to convey it and that the land has no encumbrances other than those stated in the deed.

Genuine assent

Assent to a contract that is free of fraud, duress, undue influence, and mutual mistake.

Good faith exception

If official is acting in good faith to obtain evidence, it is admissible.

Goods

Tangible personal property.

Grantee

The person receiving the property.

Grantor

The person conveying the property.

Groupthink

An implicit agreement not to bring up upsetting facts.

Illegal consideration

A contract is not supported by consideration if the promise is supported by an illegal act.

Illusory promise

A contract providing that only one of the parties need perform, only if he or she chooses to do so; the contract is not supported by consideration. Not definite and cannot be enforced.

Implied warranty of merchantability

A warranty that a good is reasonably fit for ordinary use.

Implied warranty

A warranty that automatically arises out of a transaction.

Implied

A contract that is established by the conduct of a party rather than by the party's written or spoken words.