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Glossary

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face amount
n. the original amount due on a promissory note or insurance policy as stated therein, without calculating interest.

face value
n. in shares of stock, the original cost of the stock shown on the certificate, or "par value."

fact
n. an actual thing or happening, which must be proved at trial by presentation of evidence and which is evaluated by the finder of fact (a jury in a jury trial, or by the judge if he/she sits without a jury).

fact finder (finder of fact)
n. in a trial of a lawsuit or criminal prosecution, the jury or judge (if there is no jury) who decides if facts have been proven. Occasionally a judge may appoint a "special master" to investigate and report on the existence of certain facts.

factor
n. 1) a salesman who sells in his/her own name on behalf of others, taking a commission for services. 2) something that contributes to the result.

failure of consideration
n. not delivering goods or services when promised in a contract. When goods a party had bargained for have become damaged or worthless, failure of consideration (to deliver promised goods) makes the expectant recipient justified to withhold payment, demand performance or take legal action.

failure of issue
n. when someone dies leaving no children or other direct descendants.

fair comment
n. a statement of opinion (no matter how ludicrous) based on facts which are correctly stated and which does not allege dishonorable motives on the part of the target of the comment.

fair market value
n. the amount for which property would sell on the open market if put up for sale. This is distinguished from "replacement value," which is the cost of duplicating the property. Real estate appraisers will use "comparable" sales of similar property in the area to determine market value, adding or deducting amounts based on differences in quality and size of the property.

fair use
n. the non-competitive right to use of copyrighted material without giving the author the right to compensation or to sue for infringement of copyright. With the growing use of copy machines, teachers and businesses copy articles, pages of texts, charts and excerpts for classroom use, advice to employees or to assist in research without violating the copyright.

false arrest
n. physically detaining someone without the legal right to do so. Quite often this involves private security people or other owners or employees of retail establishments who hold someone without having seen a crime committed in their presence or pretend that they are police officers. While they may be entitled to make a "citizen's arrest" they had better be sure that they have a person who has committed a crime, and they must call law enforcement officers to take over at the first opportunity. Other common false arrest situations include an arrest by a police officer of the wrong person or without probable cause to believe a crime has been committed and/or without a warrant. Only when the arresting party knowingly holds someone who has not committed a crime, is the false arrest itself a crime. However, probable false arrest can be the basis of a lawsuit for damages, including mental distress and embarrassment.

false imprisonment
n. depriving someone of freedom of movement by holding a person in a confined space or by physical restraint including being locked in a car, driven about without opportunity to get out, being tied to a chair or locked in a closet. It may be the follow-up to a false arrest (holding someone in the office of a department store, for example), but more often it resembles a kidnapping with no belief or claim of a legal right to hold the person. Therefore, false imprisonment is often a crime and if proved is almost always the basis of a lawsuit for damages.

false pretenses
n. the crime of knowingly making untrue statements for the purpose of obtaining money or property fraudulently. This can range from claiming zircons are diamonds and turning back the odometer on a car, to falsely stating that a mine has been producing gold when it has not. It is one form of theft.

family
n. 1) husband, wife and children. 2) all blood relations. 3) all who live in the same household including servants and relatives, with some person or persons directing this economic and social unit.

family purpose doctrine
n. a rule of law that the registered owner of an automobile is responsible for damages to anyone injured when the auto is driven by a member of the family with or without the owner's permission. The theory of this liability is that the vehicle is owned for family purposes.

fee
n. 1) absolute title in land, from old French, fief, for "payment," since lands were originally given by lords to those who served them. The word "fee" can be modified to show that the title was "conditional" on some occurrence or could be terminated ("determinable") upon a future event. 2) a charge for services

fee simple
n. absolute title to land, free of any other claims against the title, which one can sell or pass to another by will or inheritance. This is a redundant form of "fee," but is used to show the fee (absolute title) is not a "conditional fee," or "determinable fee," or "fee tail".

fee tail
n. an old feudal expression for a title to real property which can only be passed to one's heirs "of his body" or certain heirs who are blood relatives. If the blood line ran out (no children) then the title would revert to the descendants of the lord who originally gave the land to the title-holding family. Thus, it could not be transferred to anyone outside the family. The intention was to keep lands within a family line and not subdivided. In 16th century England, trusts were established to get around this "restraint on alienation" so the land could be held in trust for another person to use. Fee tail is of historic and academic interest only.

felon
n. a person who has been convicted of a felony, which is a crime punishable by death or a term in prison.

felonious
adj. referring to an act done with criminal intent. The term is used to distinguish between a wrong which was not malicious, and an intentional crime, as in "felonious assault," which is an attack meant to do real harm.

felony
n. 1) a crime sufficiently serious to be punishable by death or a term in prison, as distinguished from a misdemeanor which is only punishable by confinement to local jail and/or a fine.

felony murder doctrine
n. a rule of criminal statutes that any death which occurs during the commission of a felony is first degree murder, and all participants in that felony or attempted felony can be charged with and found guilty of murder. A typical example is a robbery involving more than one criminal, in which one of them shoots, beats to death or runs over a store clerk, killing the clerk. Even if the death were accidental, all of the participants can be found guilty of felony murder, including those who did no harm, had no gun, and/or did not intend to hurt anyone. In a bizarre situation, if one of the holdup men or women is killed, his/her fellow robbers can be charged with murder.

fictitious defendants
n. when a party suing (plaintiff) is not sure if he/she knows if there are unknown persons involved in the incident or the business being sued, there are named fictitious persons, usually designated Doe I, Doe II, and so forth, or "Green and Red Company," with an allegation in the complaint that if and when the true names are discovered they will be inserted in the complaint by amendment. Naming fictitious defendants stops the statute of limitations (the time in which a party has to file a lawsuit) from running out even though the true name is not yet known. Sometimes during the investigation or discovery (taking depositions or asking written questions under oath) new information about a potential defendant is found and the real name substituted. Then that person is served with a summons and complaint. If no substitution of a real name for a Doe has been made by the time of trial, usually the fictitious defendants are then dismissed from the case since they never existed in the first place, and the case continues against the named defendants.

fiduciary
1) n. from the Latin fiducia, meaning "trust," a person (or a business like a bank or stock brokerage) who has the power and obligation to act for another (often called the beneficiary) under circumstances which require total trust, good faith and honesty. The most common is a trustee of a trust, but fiduciaries can include business advisers, attorneys, guardians, administrators of estates, real estate agents, bankers, stockbrokers, title companies or anyone who undertakes to assist someone who places complete confidence and trust in that person or company. Characteristically, the fiduciary has greater knowledge and expertise about the matters being handled. A fiduciary is held to a standard of conduct and trust above that of a stranger or of a casual business person. He/she/it must avoid "self-dealing" or "conflicts of interests" in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him/her/it. For example, a stockbroker must consider the best investment for the client and not buy or sell on the basis of what brings him/her the highest commission. While a fiduciary and the beneficiary may join together in a business venture or a purchase of property, the best interest of the beneficiary must be primary, and absolute candor is required of the fiduciary. 2) adj. defining a situation or relationship in which a person is acting as a fiduciary for another.

fiduciary relationship
n. where one person places complete confidence in another in regard to a particular transaction or one's general affairs or business. The relationship is not necessarily formally or legally established as in a declaration of trust, but can be one of moral or personal responsibility, due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling.

fighting words
n. words intentionally directed toward another person which are so nasty and full of malice as to cause the hearer to suffer emotional distress or incite him/her to immediately retaliate physically (hit, stab, shoot, etc.). While such words are not an excuse or defense for a retaliatory assault and battery, if they are threatening they can form the basis for a lawsuit for assault.

file
1) v. to deposit with the clerk of the court a written complaint or petition which is the opening step in a lawsuit and subsequent documents, including an answer, demurrer, motions, petitions and orders. All of these are placed in a case file which has a specific number assigned to it which must be stated on every document. The term is used: "When are you going to file the complaint," or "The answer will be filed tomorrow." 2) n. the master folder of a lawsuit kept by the clerk of the court, including all legal pleadings (documents) filed by both sides. Each document in the file must have a stamp showing the date it was received and the name of the clerk who received it. Any document which is filed must be served on the opposing attorney, usually by mail, except that the first paper filed (summons complaint, petition, motion) must be served on all defendants personally (hand delivered by a process server). 3) n. the record an attorney keeps on a case, containing all papers deposited with the clerk, as well as all correspondence and notes on the case.

final decree
n. another name for a final judgment.

final judgment
n. the written determination of a lawsuit by the judge who presided at trial (or heard a successful motion to dismiss or a stipulation for judgment), which renders (makes) rulings on all issues and completes the case unless it is appealed to a higher court. It is also called a final decree or final decision

final settlement
n. an agreement reached by the parties to a lawsuit, usually in writing and/or read into the record in court, settling all issues. Usually there are elements of compromise, waiver of any right to reopen or appeal the matter even if there is information found later which would change matters (such as recurrence of a problem with an injury), mutual release of any further claim by each party, a statement that neither side is admitting fault, and some action or payment by one or both sides. In short, the case is over, provided the parties do what they are supposed to do according to the final settlement's terms. With the glut of cases crowding court calendars and overwhelming the system and delays in getting to trial (due to three factors: increased criminal case load, increased litigious nature of society and an insufficient number of judges), judges encourage attempts to settle, including mandatory settlement conferences with judges or experienced settlement attorneys present.

finding
n. the determination of a factual question vital (contributing) to a decision in a case by the trier of fact (jury or judge sitting without a jury) after a trial of a lawsuit, often referred to as findings of fact. A finding of fact is distinguished from a conclusion of law which is determined by the judge as the sole legal expert. Findings of fact and conclusions of law, need not be made if waived or not requested by the trial attorneys, leaving just the bare judgment in the case.

findings of fact
n. See also: finding

firm offer
n. in contract law, an offer (usually in writing) which states it may not be withdrawn, revoked or amended for a specific period of time. If the offer is accepted without a change during that period, there is a firm, enforceable contract.

first degree murder
n. it is generally a killing which is deliberate and premeditated (planned, after lying in wait, by poison or as part of a scheme), in conjunction with felonies such as rape, burglary, or involving multiple deaths, the killing of certain types of people (such as a child, a police officer, a prison guard, a fellow prisoner), or certain weapons, particularly a gun. It is distinguished from second degree murder in which premeditation is usually absent, and from manslaughter, which lacks premeditation and suggests that at most there was intent to harm rather than to kill.

first impression
adj. referring to a legal issue which has never been decided by an appeals court and, therefore, there is no precedent for the court to follow. To reach a decision the court must use its own logic, analogies from prior rulings by appeals courts and refer to commentaries and articles by legal scholars. In such cases the trial judge usually asks for legal briefs by attorneys for both sides to assist him/her.

fixture
n. a piece of equipment which has been attached to real estate in such a way as to be part of the premises and its removal would do harm to the building or land. Thus, a fixture is transformed from a movable asset to an integral part of the real property. Essentially a question of fact, it often arises when a tenant has installed a lighting fixture, a heater, window box or other item which is bolted, nailed, screwed or wired into the wall, ceiling or floor. Trade fixtures are those which a merchant would normally use to operate the business and display goods and may be removed at the merchant's expense for any necessary repair.

flight
n. running away or hiding by a person officially accused of a crime with the apparent intent of avoiding arrest or prosecution.

floating easement
n. an easement (a right to use another's property for a particular purpose) which allows access and/or egress but does not spell out the exact dimensions and location of the easement.

fob
1) adj. short for free on board, meaning shipped to a specific place without cost.

for value received
prep. a phrase used in a promissory note, a bill of exchange or a deed to show that some consideration (value) has been given without stating what that payment was.

forbearance
n. an intentional delay in collecting a debt or demanding performance on a contract, usually for a specific period of time. Forbearance is often consideration for a promise by the debtor to pay an added amount.

forced sale
n. a sale of goods seized by the police to satisfy (pay) a judgment.

forcible entry
n. the crime of taking possession of a house or other structure or land by the use of physical force or serious threats against the occupants. This can include breaking windows or doors or using terror to gain entry, as well as forcing the occupants out by threat or violence after having come in peacefully.

foreclosure
n. the system by which a party who has loaned money secured by a mortgage or deed of trust on real property (or has an unpaid judgment), requires sale of the real property to recover the money due, unpaid interest, plus the costs of foreclosure, when the debtor fails to make payment. After the payments on the promissory note (which is evidence of the loan) have become delinquent for several months, the lender can have a notice of default served on the debtor (borrower) stating the amount due and the amount necessary to "cure" the default. If the delinquency and costs of foreclosure are not paid within a specified period, then the lender (or the trustee using deeds of trust) will set a foreclosure date, after which the property may be sold at public sale. Up to the time of foreclosure the defaulting borrower can pay all delinquencies and costs (which are then greater due to foreclosure costs) and "redeem" the property. Upon sale of the property the amount due is paid to the creditor (lender or owner of the judgment) and the remainder of the money received from the sale, if any, is paid to the lender. There is also judicial foreclosure in which the lender can bring suit for foreclosure against the defaulting borrower for the delinquency and force a sale.

foreclosure sale
n. the actual forced sale of real property at a public auction after foreclosure on that property as security under a mortgage or deed of trust for a loan that is substantially delinquent. The lender who has not been paid may bid for the property, using his/her/its own unpaid note toward payment, which can result in a bargain purchase.

forensic
1) adj. from Latin forensis for "belonging to the forum," ancient Rome's site for public debate and currently meaning pertaining to the courts. Thus, forensic testimony or forensic medicine are used to assist the court or the attorneys in legal matters, including trials.

forensic medicine
n. research, reports and testimony in court by experts in medical science to assist in determining a legal question. Cause of death is a common issue determined by pathologists who may be coroners or medical examiners.

forensic testimony
n. any testimony of expert scientific, engineering, economic or other specialized nature used to assist the court and the lawyers in a lawsuit or prosecution.

forensics
n. public speaking or argumentation.

foreseeability
n. reasonable anticipation of the possible results of an action, such as what may happen if one is negligent or consequential damages resulting from breach of a contract.

foreseeable risk
n. a danger which a reasonable person should anticipate as the result from his/her actions. Foreseeable risk is a common affirmative defense put up as a response by defendants in lawsuits for negligence. A mother is severely injured while accompanying her child on a roller coaster when the car jumps the track and comes loose. While there is potential risk, she had the right to anticipate that the roller coaster was properly maintained and did not assume the risk that it would come apart. Signs that warn "use at your own risk" do not bar lawsuits for risks that are not foreseeable.

forfeit
v. to lose property or rights involuntarily as a penalty for violation of law. Example: the government can take automobiles or houses which are used for illegal drug trafficking or manufacture. A drug pusher may forfeit his/her car (property) if caught carrying drugs in it and found guilty.

forfeiture
n. loss of property due to a violation of law.

forger
n. a person who commits the crime of forgery, by making false documents or signatures.

forgery
n. 1) the crime of creating a false document, altering a document, or writing a false signature for the illegal benefit of the person making the forgery. This includes improperly filling in a blank document, like an automobile purchase contract, over a buyer's signature, with the terms different from those agreed. It does not include such innocent representation as a staff member autographing photos of politicians or movie stars. While similar to forgery, counterfeiting refers to the creation of phoney money, stock certificates or bonds which are negotiable for cash. 2) a document or signature falsely created or altered.

fornication
n. sexual intercourse between a man and woman who are not married to each other. This usage comes from Latin fornicari, meaning vaulted, which became the nickname for brothel, because prostitutes operated in a vaulted underground cavern in Rome. Fornication is still a misdemeanor, as is adultery (sexual intercourse by a married person with someone not his/her spouse), but is virtually never prosecuted.

forthwith
adv. a term found in contracts, court orders and statutes, meaning as soon as it can be reasonably done. It implies immediacy, with no excuses for delay.

forum
n. a court which has jurisdiction to hold a trial of a particular lawsuit or petition.

forum non conveniens
(for-uhm nahn cahn-vee-nee-ehns) n. Latin for a forum which is not convenient. This doctrine is employed when the court chosen by the plaintiff (the party suing) is inconvenient for witnesses or poses an undue hardship on the defendants, who must petition the court for an order transferring the case to a more convenient court.

foster child
n. a child without parental support and protection, placed with a person or family to be cared for, usually by local welfare services or by court order. The foster parent(s) do not have custody, nor is there an adoption, but they are expected to treat the foster child as they would their own in regard to food, housing, clothing and education. Most foster parents are paid by the local government or a state agency.

four corners of an instrument
n. the term for studying an entire document to understand its meaning, without reference to anything outside of the document ("extrinsic evidence"), such as the circumstances surrounding its writing or the history of the party signing it. If possible a document should be construed based on what lies within its four corners, unless such examination cannot solve an ambiguity in its language.

franchise
1) n. a right granted by the government to a person or corporation, such as a taxi permit, bus route, an airline's use of a public airport, business license or corporate existence. 2) n. the right to vote in a public election. 3) v. to grant (for a periodic fee or share of profits) the right to operate a business or sell goods or services under a brand or chain name. Well-known franchise operations include McDonald's, Holiday Inns, and Amway Distributors. 4) n. the right one has to operate a store or sell goods or services under a franchise agreement.

franchise tax
n. a state tax on corporations or businesses.

fraud
n. the intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right. A party who has lost something due to fraud is entitled to file a lawsuit for damages against the party acting fraudulently, and the damages may include punitive damages as a punishment or public example due to the malicious nature of the fraud. Quite often there are several persons involved in a scheme to commit fraud and each and all may be liable for the total damages. Inherent in fraud is an unjust advantage over another which injures that person or entity. It includes failing to point out a known mistake in a contract or other writing (such as a deed), or not revealing a fact which he/she has a duty to communicate, such as a survey which shows there are only 10 acres of land being purchased and not 20 as originally understood. Constructive fraud can be proved by a showing of breach of legal duty (like using the trust funds held for another in an investment in one's own business) without direct proof of fraud or fraudulent intent. Extrinsic fraud occurs when deceit is employed to keep someone from exercising a right, such as a fair trial, by hiding evidence or misleading the opposing party in a lawsuit. Since fraud is intended to employ dishonesty to deprive another of money, property or a right, it can also be a crime for which the fraudulent person(s) can be charged, tried and convicted.

fraud in the inducement
n. the use of deceit or trick to cause someone to act to his/her disadvantage, such as signing an agreement or deeding away real property. The heart of this type of fraud is misleading the other party as to the facts upon which he/she will base his/her decision to act. Example: "there will be tax advantages to you if you let me take title to your property".

fraudulent conveyance
n. the transfer (conveyance) of title to real property for the express purpose of putting it beyond the reach of a known creditor. In such a case the creditor may bring a lawsuit to void the transfer. However, if the transfer was made without knowledge of the claim (or before a debt has matured), for other legitimate reasons, and/or in the normal course of business, then the creditor's attempt to obtain a judgment setting aside the conveyance will probably fail.

free and clear
adj. referring to the ownership of real property upon which there is no lien, encumbrance, recorded judgment or the right of anyone to make a claim against the property. The term is used in contracts for sale of real property and deeds, to state that the title has no claim against it.

free on board (fob)
adj. referring to purchased goods shipped without transportation charge to a specific place.

freehold
n. any interest in real property which is a life estate or of uncertain or undetermined duration (having no stated end), as distinguished from a leasehold which may have declining value toward the end of a long-term lease (such as the 99-year variety).

fresh pursuit
n. immediate chase of a suspected criminal by a law enforcement officer, in which situation the officer may arrest the suspect without a warrant.

friendly suit
n. a lawsuit filed in order to obtain a court order when the parties to the suit agree on the expected outcome. Such a legal action will be dismissed if it is an attempt to get an advisory opinion, is collusive (deceitfully planned) to get a judgment to set a legal precedent or where there is no real controversy. However, such suits are allowed in situations in which the statutes require a court ruling to achieve a "reasonable result," such as reforming (correcting) a trust or agreement in which there was an error.

frisk
v. quickly patting down the clothes of a possible criminal suspect to determine if there is a concealed weapon. This police action is generally considered legal (constitutional) without a search warrant. Generally it is preferred that women officers frisk women and men officers frisk men.

frivolous
adj. referring to a legal move in a lawsuit clearly intended merely to harass, delay or embarrass the opposition. Frivolous acts can include filing the lawsuit itself, a baseless motion for a legal ruling, an answer of a defendant to a complaint which does not deny, contest, prove or controvert anything, or an appeal which contains not a single arguable basis (by any stretch of the imagination) for the appeal. A frivolous lawsuit, motion or appeal can result in a successful claim by the other party for payment by the frivolous suer of their attorneys' fees for defending the case. Judges are reluctant to find an action frivolous, based on the desire not to discourage people from using the courts to resolve disputes.

fruit of the poisonous tree
n. in criminal law, the doctrine that evidence discovered due to information found through illegal search or other unconstitutional means (such as a forced confession) may not be introduced by a prosecutor. The theory is that the tree (original illegal evidence) is poisoned and thus taints what grows from it.

frustration of purpose
n. sometimes called commercial frustration, when unexpected events arise which make a contract impossible to be performed, entitling the frustrated party to rescind the contract without paying damages.

fugitive from justice
n. a person convicted or accused of a crime who hides from law enforcement.

full disclosure
n. the need in business transactions to tell the "whole truth" about any matter which the other party should know in deciding to buy or contract. In real estate salesthere is a full disclosure form which must be filled out and signed under penalty of perjury for knowingly falsifying or concealing any significant fact.

fungible things
n. sometimes merely called "fungibles," goods which are interchangeable, often sold or delivered in bulk, since any one of them is as good as another. Grain or gravel are fungibles, as are securities which are identical.

future interest
n. a right to receive either real property or personal property some time in the future, either upon a particular date or upon the occurrence of an event. Typical examples are getting title upon the death of the person having present use, outliving another beneficiary, reaching maturity (age 18) or upon marriage.



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