|
Glossary
|
|
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
W
X
Y
Z
|
bachelor of laws
n. the degree in law from a law school, abbreviated to LLB, which means that the recipient has successfully completed three years of law studies in addition to at least three undergraduate years on any subject.
|
back-to-back life sentences
n. for consecutive life terms imposed by a judge when there were two crimes committed by the defendant, both of which can result in punishment of a life term, such as two murders, or a murder and a rape involving aggravated assault. The purpose of making the sentences subsequent ("back-to-back") and not "concurrent" (served at the same time) is to lessen the chance of parole, since if parole were permissible after 25 years, the defendant would then begin the second "life" sentence and would wait another 25 years for a parole hearing.
|
bad debt
n. an uncollectible debt. The problem is to determine when a debt is realistically dead, which means there must be some evidence of uncollectibility or a lengthy passage of time. Discharge in bankruptcy, the running of the statute of limitations to bring a lawsuit, disappearance of the debtor, a pattern of avoiding debts or the destruction of the collateral security can all make a debt "bad." For income tax deduction purposes such a debt in business is deductible against ordinary income and such a personal debt is deductible against short-term capital gains. A debt due for services rendered is not a bad debt for tax purposes, since there is just no income on which to be taxed.
|
bad faith
1) n. intentional dishonest act by not fulfilling legal or contractual obligations, misleading another, entering into an agreement without the intention or means to fulfill it, or violating basic standards of honesty in dealing with others. 2) adj. when there is bad faith then a transaction is called a "bad faith" contract or "bad faith" offer.
|
bail
1) n. the money or bond put up to secure the release of a person who has been charged with a crime. For minor crimes bail is usually set by a schedule which will show the amount to be paid before any court appearance (arraignment). For more serious crimes the amount of bail is set by the judge at the suspect's first court appearance. The theory is that bail guarantees the appearance of the defendant in court when required. While the Constitution guarantees the right to reasonable bail, a court may deny bail in cases charging murder or treason, or when there is a danger that the defendant will flee or commit mayhem. In some traffic matters the defendant may forfeit the bail by non-appearance since the bail is equivalent to the fine. 2) v. to post money or bond to secure an accused defendant's release. This is generally called "bailing out" a prisoner.
|
bail bond
n. a bond provided by an insurance company through a bail bondsman acting as agent for the company, to secure the release from jail of an accused defendant pending trial. Usually there is a charge of 10 percent of the amount of the bond (e.g. Rs 1000 for a Rs 10,000 bond) and often the defendant must put up some collateral like a second deed of trust or mortgage on one's house. Upon acquittal, conviction, or other conclusion of the case, the bail bond is "exonerated" and returned to the insurance company. If the person who has been bailed out disappears and does not appear in court, the bond funds will be forfeited unless the defendant is found and returned.
|
bail bondsman
n. a professional agent for an insurance company who specializes in providing bail bonds for people charged with crimes and awaiting trial in order to have them released. Bail bondsmen usually charge the suspect a fee of 10 percent of the amount of the bond. If a bail bondsman has reason to believe a person he bailed out is about to flee, he may revoke the bond and surrender his client to jail.
|
bailee
n. a person, also called a custodian, with whom some article is left, usually pursuant to a contract (called a "contract of bailment"), who is responsible for the safe return of the article to the owner when the contract is fulfilled. These can include banks holding bonds, storage companies where furniture or files are deposited, a parking garage, or a kennel or horse ranch where an animal is boarded. Leaving goods in a sealed rented box, like a safe deposit box, is not a bailment, and the holder is not a bailee since he cannot handle or control the goods.
|
bailiff
n. 1) a court official, who keeps order in the courtroom and handles various errands for the judge and clerk. 2) in some jurisdictions, a person appointed by the court to handle the affairs of an incompetent person or to be a "keeper" of goods or money pending further order of the court. "Bailiff" has its origin in Old French and Middle English for custodian, and in the Middle Ages was a significant position in the English court system. The word "bailiwick" originally meant the jurisdictional territory of a bailiff.
|
bailment
n. 1) the act of placing property in the custody and control of another, usually by agreement in which the holder (bailee) is responsible for the safekeeping and return of the property. Examples: bonds left with the bank, autos parked in a garage, animals lodged with a kennel, or a storage facility (as long as the goods can be moved and are under the control of the custodian). While most are "bailments for hire" in which the custodian (bailee) is paid, there is also "constructive bailment" when the circumstances create an obligation upon the custodian to protect the goods, and "gratuitous bailment" in which there is no payment, but the bailee is still responsible, such as when a finder of a lost diamond ring places it with a custodian pending finding the owner. 2) the goods themselves which are held by a bailee. Thus, the "bailor" (owner) leaves the "bailment" (goods) with the "bailee" (custodian), and the entire transaction is a "bailment."
|
bailor
n. a person who leaves goods in the custody of another, usually under a "contract of bailment," in which the custodian ("bailee") is responsible for the safekeeping and return of the property. Sometimes the bailor is not the owner but a person who is a servant of the owner or a finder (say, of jewelry) who places the goods with the bailee until the owner is found.
|
bait and switch
n. a dishonest sales practice in which a business advertises a bargain price for an item in order to draw customers into the store and then tells the prospective buyer that the advertised item is of poor quality or no longer available and attempts to switch the customer to a more expensive product. Electronic items such as stereos, televisions, or telephones are favorites, but there are also loan interest rates which turn out to be only for short term or low maximums, and then the switch is to a more expensive loan. The business using "bait and switch" is an apt target for a class action since there are many customers but each transaction scarcely warrants the costs of a separate suit.
|
balance due
n. the amount of a debt still owed on an account or the principal owed on a promissory note. In the case of a promissory note, the balance due is not the sum of installments due, since these include amortized interest, but may be the principal due without further interest.
|
balance sheet
n. the statement of the assets and the liabilities (amounts owed) of a business at a particular time usually prepared each month, quarter of a year, annually, or upon sale of the business. It is intended to show the overall condition of the business. A balance sheet should not be confused with a profit and loss statement, which is an indicator of the current activity and health of the business.
|
bank
n. 1) an officially chartered institution empowered to receive deposits, make loans, and provide checking and savings account services, all at a profit. 2) a group of judges sitting together as an appeals court, referred to as "in bank" or "en banc."
|
bankruptcy
n. a system of statutes and courts which permits persons and businesses which are insolvent (debtors) or (in some cases) face potential insolvency, to place his/her/its financial affairs under the control of the bankruptcy court. The procedure is that when the debtor's debts exceed his/her/its assets or ability to pay, the debtor can file a petition with the bankruptcy court for voluntary bankruptcy or the debtor's unpaid creditors can file an "involuntary" petition to force the debtor into bankruptcy, although voluntary bankruptcy is far more common. The most common petition is, in which a trustee is appointed by the court, the current assets are counted up by the trustee (with many of them exempt from bankruptcy), who pays debts to the extent possible with priority for taxes, then secured debts (mortgages or some judgments), and finally unsecured debts. Then the court adjudicates (officially declares) the debtor a bankrupt and discharges the unpayable debts, to the loss of the creditors. Exempt from sale to pay debts are a portion of the value of a home (equal to a homestead), secured notes that can be kept current, an automobile, tools of the trade, furniture, and some other items.
|
bankruptcy proceedings
n. the bankruptcy procedure is: a) filing a petition (voluntary or involuntary) to declare a debtor person or business bankrupt, to allow reorganization or refinancing under a plan to meet the debts of the party unable to meet his/her/its obligations. The petition is supposed to include a schedule of debts, assets and income potential. b) A hearing called "first meeting of creditors" with notice to all known creditors. This is often brief and usually results in the judge assigning the matter to a professional trustee. c) Later the trustee reports and there is a determination of what debts are dischargeable, what assets are exempt, and what payments are possible. d) If there are assets available then the creditors are requested in writing to file a "creditor's claim." e) There may be other hearings, reports, proposals, hearings on claims of fraudulent debts, petitions for removing the stay on foreclosures and other matters. f) Debts secured by property or by judgment lien are paid up to the amount of assets and funds available. g) The final step is a hearing on discharge of the bankrupt, which wipes out unsecured debts (or a pro rata share of them).
|
bar
1) n. collectively all attorneys, as "the bar," which comes from the bar or railing which separates the general spectator area of the courtroom from the area reserved for judges, attorneys, parties and court officials. A party to a case or criminal defendant is "before the bar" when he/she is inside the railing. 2) v. to prevent some legal maneuver, as in "barring" a lawsuit due to the running out of the time to file. 3) to prohibit and keep someone from entering a room, building, or real property.
|
bar association
n. an organization of lawyers.
|
bar examination
n. the examination given in each state by either the highest court or, if an "integrated" bar, by the state bar association (subject to appeal to the Supreme Court) for admission as an attorney.
|
bargain
n. 1) a mutual agreement or contract between two parties which is voluntary and involves the exchange of consideration (money, goods, services). 2) a supposed good deal.
|
barratry
n. creating legal business by stirring up disputes and quarrels, generally for the benefit of the lawyer who sees fees in the matter. Barratry is illegal and subject to criminal punishment and/or discipline by the bar, but there must be a showing that the resulting lawsuit was totally groundless. There is a lot of border-line barratry in which attorneys, in the name of being tough or protecting the client, fail to seek avenues for settlement of disputes or will not tell the client he/she has no legitimate claim.
|
barrister
n. in the United States a fancy name for a lawyer or attorney. In Great Britain, there is a two-tier bar made up of solicitors, who perform all legal tasks except appearance in court, and barristers, who try cases. Some solicitors will "take the silk" (quaint expression) and become barristers.
|
basis
n. the original cost of an asset to be used to determine the amount of capital gain tax upon its sale. An "adjusted basis" includes improvements, expenses, and damages between the time the original basis (price) is established and transfer (sale) of the asset. "Stepped up basis" means that the original basis of an asset (especially real property) will be stepped up to current value at the time of the death of the owner, and thus keep down capital gain taxes if the beneficiary of the dead person sells the asset.
|
battery
n. the actual intentional striking of someone, with intent to harm, or in a "rude and insolent manner" even if the injury is slight. Negligent or careless unintentional contact is not battery no matter how great the harm. Battery is a crime and also the basis for a lawsuit as a civil wrong if there is damage. It is often coupled with "assault" (which does not require actual touching) in "assault and battery."
|
beach bum trust provision
n. a requirement in a trust that a beneficiary can only receive profit from the trust equal to the amount he/she earns. This provision is intended to encourage the beneficiary to work, and not just lie around the beach and live off the trust.
|
bearer
n. anyone holding something, such as a check, promissory note, bank draft, or bond. This becomes important when the document (generally called a "negotiable instrument") states it is "payable to bearer," which means whoever holds this paper can receive the funds due on it.
|
bearer paper
n. negotiable instrument (e.g. a bond) which is payable to whoever has possession (the bearer).
|
belief
n. convinced of the truth of a statement or allegation. In a common phrase "upon information and belief," the so-called belief is based only on unconfirmed information, so the person declaring the belief is hedging his/her bet as to whether the belief is correct.
|
bench
n. 1) general term for all judges, as in "the bench," or for the particular judge or panel of judges, as in an order coming from the "bench." 2) the large, usually long and wide desk raised above the level of the rest of the courtroom, at which the judge or panel of judges sit.
|
bench warrant
n. a warrant issued by a judge, often to command someone to appear before the judge, with a setting of an amount of bail to be posted. Often a bench warrant is used in lesser matters to encourage the party to appear in court.
|
beneficial interest
n. the right of a party to some profit, distribution, or benefit from a contract or trust. A beneficial interest is distinguished from the rights of someone like a trustee or official who has responsibility to perform and/or title to the assets but does not share in the benefits.
|
beneficial use
n. the right to enjoy the use of something (particularly such pleasant qualities as light, air, view, access, water in a stream) even though the title to the property in which the user exists is held by another.
|
beneficiary
n. a broad definition for any person or entity (like a charity) who is to receive assets or profits from an estate, a trust, an insurance policy or any instrument in which there is distribution. There is also an "incidental beneficiary" or a "third party beneficiary" who gets a benefit although not specifically named, such as someone who will make a profit if a piece of property is distributed to another.
|
benefit
1) n. any profit or acquired right or privilege, primarily through a contract. 2) in worker's compensation the term "benefit" is the insurance payment resulting from a fatal accident on the job, while "compensation" is for injury without death. 3) in income taxation, anything that brings economic gain. 4) "fringe benefits" may be part of the compensation for employment other than salary or wages, and may include health or disability insurance. 5) v. to gain something, as "This sale will benefit Ajit Singh."
|
benefit of counsel
n. having the opportunity to have an attorney and legal advice in any legal matter, but particularly while appearing in court. If someone makes an appearance or agrees to a contract without benefit of counsel, when a lawyer would be either essential or at least quite valuable, he/she may challenge the court rulings or the contract terms, usually without success since failure to have an attorney is the person's own fault.
|
bequeath
v. to give personal property under provisions of a will (as distinct from "devise," which is to give real estate). 2) the act of giving any asset by the terms of a will.
|
bequest
n. the gift of personal property under the terms of a will. Bequests are not always outright, but may be "conditional" upon the happening or non-happening of an event (such as marriage), or "executory" in which the gift is contingent upon a future event. Bequest can be of specific assets or of the "residue" (what is left after specific gifts have been made).
|
best evidence rule
n. the legal doctrine that an original piece of evidence, particularly a document, is superior to a copy. If the original is available, a copy will not be allowed as evidence in a trial.
|
bfp
n. slang for bona fide purchaser, which means someone who purchased something (e.g. a bond, a promissory note, or jewelry) with no reason to be suspicious that it was stolen, belonged to someone else, or was subject to another party's claim. The BFP must have paid a full and fair price and have received the item in the normal course of business, otherwise he/she might have some doubts ("wanta buy a watch, cheap?" from a character on a street corner).
|
bias
n. the predisposition of a judge, arbitrator, prospective juror, or anyone making a judicial decision, against or in favor of one of the parties or a class of persons. This can be shown by remarks, decisions contrary to fact, reason or law, or other unfair conduct. Bias can be toward an ethnic group, women or men, defendants or plaintiffs, large corporations, or local parties. Getting a "hometown" decision is a form of bias which is the bane of the out-of-town lawyer. There is also the subtle bias of some male judges in favor of pretty women. Obvious bias is a ground for reversal on appeal, but it is hard to prove, since judges are usually careful to display apparent fairness in their comments. The possibility of juror bias is explored in questioning at the beginning of trial in a questioning process called voir dire.
|
bid
n. an offer to purchase with a specific price stated. It includes offers during an auction in which people compete by raising the bid until there is no more bidding, or contractors offer to contract to build a project or sell goods or services at a given price, with usually the lowest bidder getting the job.
|
bifurcate
v. the order or ruling of a judge that one issue in a case can be tried to a conclusion or a judgment given on one phase of the case without trying all aspects of the matter. A typical example is when the judge will grant a divorce judgment without hearing evidence or making a ruling on such issues as division of marital property, child custody or spousal support (alimony). Thus the parties can be free of each other promptly while still fighting over other issues at their leisure. In a negligence case when the question of responsibility (liability) is clearly in doubt or rests on some legal technicality, the court may bifurcate the issues and hear evidence on the defendant's liability and decide that issue before going ahead with a trial on the amount of damages. If the court rules there is no liability, then the amount of damages is meaningless and further trial is necessary.
|
bifurcation
n. the act of a judge in dividing issues before a trial so that one issue will be ruled upon before hearing evidence on the other issue. (See bifurcate)
|
bigamy
n. the condition of having two wives or two husbands at the same time. A marriage in which one of the parties is already legally married is bigamous, void, and ground for annulment. The one who knowingly enters into a bigamous marriage is guilty of the crime of bigamy, but it is seldom prosecuted unless it is part of a fraudulent scheme to get another's property or some other felony. Occasionally people commit bigamy accidentally, usually in the belief that a prior marriage had been dissolved. Having several wives at the same time is called polygamy and being married to several husbands is polyandry.
|
bilateral contract
n. an agreement in which the parties exchange promises for each to do something in the future.
|
bill
n. 1) what is commonly called a "check" by which the signer requires the bank to pay a third party a sum of money. This is a holdover from the days when a person would draw up a "bill of exchange." 2) a statement of what is owed. 3) any paper money. 4) a legislative proposal for enactment of a law. It is called a bill until it is passed and signed, at which time it is a law (statute) and is no longer referred to as a bill. 5) an old-fashioned term for various filed documents in lawsuits or criminal prosecutions, which is falling into disuse.
|
bill of exchange
n. a writing by a party (maker or drawer) ordering another (payor) to pay a certain amount to a third party (payee). It is the same as a draft. A bill of exchange drawn on a bank account is a "check."
|
bill of lading
n. a receipt obtained by the shipper of goods from the carrier (trucking company, railroad, ship or air freighter) for shipment to a particular buyer. It is a contract protecting the shipper by guaranteeing payment and satisfies the carrier that the recipient has proof of the right to the goods. The bill of lading is then sent to the buyer by the shipper upon payment for the goods, and is thus proof that the recipient is entitled to the goods when received. Thus, if there is no bill of lading, there is no delivery.
|
bill of particulars
n. a written itemization of claims which a defendant in a lawsuit can demand of the plaintiff to find out what are the details of the claims.
|
bill of sale
n. a written statement attesting to the transfer (sale) of goods, possessions, or a business to a buyer. It is useful to show that the buyer now has ownership and to detail what was actually purchased. A bill of sale may accompany an agreement which states the agreed-upon terms of sale, including the date of transfer, the price, timing of payment and other provisions.
|
binder
n. a written statement of the key terms of an agreement, in particular insurance policies, so that the insured as well as lenders can be assured there is valid and adequate insurance coverage.
|
blackmail
n. the crime of threatening to reveal embarrassing, disgraceful or damaging facts (or rumors) about a person to the public, family, spouse or associates unless paid off to not carry out the threat. It is one form of extortion (which may include other threats such as physical harm or damage to property).
|
blank endorsement
n. endorsement of a check or other negotiable paper without naming the person to whom it would be paid.
|
board of directors
n. the policy managers of a corporation or organization elected by the shareholders or members. The board in turn chooses the officers of the corporation, sets basic policy, and is responsible to the shareholders. In small corporations there are usually only three directors. In larger corporations board members provide illustrious names, but the company is often run by the officers and middle-management who have the expertise.
|
boiler room
n. a telephone bank operation in which fast-talking telemarketers or campaigners attempt to sell stock, services, goods, or candidates and act as if they are calling from an established company or brokerage. Often the telemarketers are totally fraudulent and in violation of security laws.
|
boilerplate
n., adj. slang for provisions in a contract, form or legal pleading which are apparently routine and often preprinted. The term comes from an old method of printing. Today "boilerplate" is commonly stored in computer memory to be retrieved and copied when needed. A layperson should beware that the party supplying the boilerplate form usually has developed supposedly "standard" terms (some of which may not apply to every situation) to favor and/or protect the provider.
|
bona fide
adj. Latin for "good faith," it signifies honesty, the "real thing" and, in the case of a party claiming title as bona fide purchaser or holder, it indicates innocence or lack of knowledge of any fact that would cast doubt on the right to hold title.
|
bona fide purchaser
n. commonly called BFP in legal and banking circles; a person who has purchased an asset (including a promissory note, bond or other negotiable instrument) for stated value, innocent of any fact which would cast doubt on the right of the seller to have sold it in good faith. This is vital if the true owner shows up to claim title, since the BFP will be able to keep the asset, and the real owner will have to look to the fraudulent seller for recompense.
|
bond
n. 1) written evidence of debt issued by a company with the terms of payment spelled out. A bond differs from corporate shares of stock since bond payments are pre-determined and provide a final payoff date, while stock dividends vary depending on profitability and corporate decisions to distribute. There are two types of such bonds: "registered," in which the name of the owner is recorded by the company and "bearer," in which interest payments are made to whomever is holding the bond. 2) written guaranty or pledge which is purchased from a bonding company (usually an insurance firm) or by an individual as security (called a "bondsman") to guarantee some form of performance, including showing up in court ("bail bond"), properly complete construction or other contract terms ("performance bond"), that the bonded party will not steal or mismanage funds, that a purchased article is the real thing, or that title is good. If there is a failure then the bonding company will make good up to the amount of the bond.
|
bondsman
n. 1) someone who sells bail bonds. 2) a surety (guarantor or insurance company, who/which provides bonds for performance.
|
booby trap
n. a device set up to be triggered to harm or kill anyone entering the trap, such as a shotgun which will go off if a room is entered, or dynamite which will explode if the ignition key on an auto is turned. If a person sets up such a trap to protect his/her property, he/she will be liable for any injury or death even to an unwanted intruder such as a burglar. Setting a booby trap to even protect one's property is a crime.
|
book account
n. an account of a customer kept in a business ledger of debits and credits (charges and payments), which shows the amount due at any given time. This can provide a clear basis for suing for a debt.
|
book value
n. a determination of the value of a corporation's stock by adding up the stated value of corporate assets as shown on the books (records) of a corporation and deducting all the liabilities (debts) of the corporation. This may not be the true value of the corporation or its shares since the assets may be under- or over-valued
|
bottomry
n. a mortgage contract in which a ship and/or its freight is pledged as security for a loan for equipment, repair, or use of a vessel. The contract is generally called a "bottomry bond." If the loan is not paid back, the lender can sell the ship and/or its freight.
|
boycott
n. organized refusal to purchase products or patronize a store to damage the producer or merchant monetarily, to influence its policy, and/or to attract attention to a social cause. The term is named for Captain Charles C. Boycott, a notorious land agent whose neighbors ostracized him during Ireland's Land League rent wars in the 1880's. Boycotts are not illegal in themselves, unless there are threats of violence involved.
|
breach
1) n. literally, a break. A breach may be a failure to perform a contract (breaking its terms), failure to do one's duty (breach of duty, or breach of trust), causing a disturbance, threatening, or other violent acts which break public tranquility (breach of peace), illegally entering property (breach of close), not telling the truth-knowingly or innocently-about title to property (breach of warranty), or, in past times, refusal to honor a promise to marry (breach of promise). 2) v. the act of failing to perform one's agreement, breaking one's word, or otherwise actively violating one's duty to other.
|
breach of contract
n. failing to perform any term of a contract, written or oral, without a legitimate legal excuse. This may include not completing a job, not paying in full or on time, failure to deliver all the goods, substituting inferior or significantly different goods, not providing a bond when required, being late without excuse, or any act which shows the party will not complete the work ("anticipatory breach"). Breach of contract is one of the most common causes of law suits for damages and/or court-ordered "specific performance" of the contract.
|
breach of the peace
n. any act which disturbs the public or even one person. It can include almost any criminal act causing fear or attempting intimidation, such as displaying a pistol or shouting inappropriately.
|
breach of trust
n. 1) any act which is in violation of the duties of a trustee or of the terms of a trust. Such a breach need not be intentional or with malice, but can be due to negligence. 2) breaking a promise or confidence.
|
breach of warranty
n. determination that a statement as to title of property, including real property or any goods, is proved to be untrue, whether intended as a falsehood or not. It can also apply to an assurance of quality of a product or item sold. The party making the warranty is liable to the party to whom the guarantee was made. In modern law the warranty need not be expressed in so many words, but may be implied from the circumstances or surrounding language at the time of sale.
|
breaking and entering
n. 1) the criminal act of entering a residence or other enclosed property through the slightest amount of force (even pushing open a door), without authorization. If there is intent to commit a crime, this is burglary. If there is no such intent, the breaking and entering alone is probably at least illegal trespass, which is a misdemeanor crime. 2) the criminal charge for the above.
|
bribery
n. the crime of giving or taking money or some other valuable item in order to influence a public official (any governmental employee) in the performance of his/her duties. Bribery includes paying to get government contracts (cutting in the roads commissioner for a secret percentage of the profit), giving a bottle of liquor to ignore a violation or grant a permit, or selling stock at a cut-rate price. The definition has been expanded to include bribes given to corporate officials to obtain contracts or other advantages which are against company policy.
|
brief
1) n. a written legal argument, usually in a format prescribed by the courts, stating the legal reasons for the suit based on statutes, regulations, case precedents, legal texts, and reasoning applied to facts in the particular situation. A brief is submitted to lay out the argument for various petitions and motions before the court (sometimes called "points and authorities"), to counter the arguments of opposing lawyers, and to provide the judge or judges with reasons to rule in favor of the party represented by the brief writer. Ironically, although the term was originally intended to mean a brief or summary argument (shorter than an oral presentation), legal briefs are quite often notoriously long. 2) v. to summarize a precedent case or lay out in writing a legal argument. Attentive law students "brief" each case in their casebooks, which means extracting the rule of law, the reasoning (rationale), the essential facts, and the outcome. 3) v. to give a summary of important information to another person.
|
broker
n. in general, a person who arranges contracts between a buyer and seller for a commission (a percentage of the sales price). These include real estate brokers (who have responsibility over an agency and its sales agents as well as their own conduct), insurance brokers (handling more than one company rather than being an agent for just a single carrier), and stockbrokers, who are the upper-level of stock salespersons and/or the operators of brokerage houses. Brokers in the more technical fields (as above) are regulated and licensed and have a "fiduciary" duty to act in the best interests of the customer. Consumers should investigate whether the broker is representing the customer's best interest or just wants to make a sale. A "pawnbroker" is a lender for items left for security ("hocked") at high rates.
|
brought to trial
v. the act of actually beginning a trial, usually signaled by swearing in the first witness (not the impanelling of the jury or beginning opening statements).
|
bucket shop
n. an unofficial and usually illegal betting operation in which the prices of stocks and commodities are posted and the customers bet on the rise and fall of prices without actually buying stock, commodities, or commodity futures. Bucket shops are seldom seen today since there are many opportunities to gamble legally on the stock and commodities markets.
|
building and loan
n. another name for savings and loan association. As the name implies, originally these institutions were meant to provide loans for building a house after the depositor had saved enough for a down payment.
|
bulk sale
n. the sale of all or a large part of a merchant's stock as well as equipment. This generally applies to retailers, restaurants, and other businesses with inventories.
|
bulk transfer
bulk sale
|
burden
n. anything that results in a restrictive load upon something. This is not meant in a tangible sense, but includes a "burden" on interstate commerce (which is any matter which limits, restricts or is onerous such as a license or fee for passage), and "burdens" on land such as zoning restrictions or the right of a neighbor to pass over the property to reach his home (easement).
|
burden of proof
n. the requirement that the plaintiff (the party bringing a civil lawsuit) show by a "preponderance of evidence" or "weight of evidence" that all the facts necessary to win a judgment are presented and are probably true. In a criminal trial the burden of proof required of the prosecutor is to prove the guilt of the accused "beyond a reasonable doubt," a much more difficult task. Unless there is a complete failure to present substantial evidence of a vital fact (usually called an "element of the cause of action"), the ultimate decision as to whether the plaintiff has met his/her burden of proof rests with the jury or the judge if there is no jury. However, the burden of proof is not always on the plaintiff. In some issues it may shift to the defendant if he/she raises a factual issue in defense, such as a claim that he/she was not the registered owner of the car that hit the plaintiff, so the defendant has the burden to prove that defense. If at the close of the plaintiff's presentation he/she has not produced any evidence on a necessary fact (e.g. any evidence of damage) then the case may be dismissed without the defendant having to put on any evidence.
|
burglary
n. the crime of breaking and entering into a structure for the purpose of committing a crime. No great force is needed (pushing open a door or slipping through an open window is sufficient) if the entry is unauthorized. Contrary to common belief, a burglary is not necessarily for theft. It can apply to any crime, such as assault or sexual harassment, whether the intended criminal act is committed or not. Originally under English common law burglary was limited to entry in residences at night, but it has been expanded to all criminal entries into any building, or even into a vehicle.
|
business
n. any activity or enterprise entered into for profit. It does not mean it is a company, a corporation, partnership, or has any such formal organization, but it can range from a street peddler to General Motors. It is sometimes significant to determine if an accident, visit, travel, meal or other activity was part of "business" or for pleasure or no particular purpose.
|
business invitee
n. a person entering commercial premises for the purpose of doing business, rather than just taking a short cut to the next street. It is important since a business is liable to a business invitee for injury caused by dangerous conditions such as bad floors or oil on the linoleum. There is a presumption that anyone entering a retail store or restaurant in which one may browse is a business invitee unless there is evidence to the contrary.
|
but for rule
n. one of several tests to determine if a defendant is responsible for a particular happening. In this test, was there any other cause, or would it have occurred "but for" the defendant's actions? Example: "But for" defendant Drivewild's speeding, the car would not have gone out of control, and therefore the defendant is responsible. This is shorthand for whether the action was the "proximate cause" of the damage.
|
buy-sell agreement
n. a contract among the owners of a business which provides terms for their purchase of a withdrawing partner's or stockholder's interest in the enterprise.
|
bylaws
n. the written rules for conduct of a corporation, association, partnership or any organization. They should not be confused with the articles of incorporation, which only state the basic outline of the company, including stock structure. Bylaws generally provide for meetings, elections of a board of directors and officers, filling vacancies, notices, types and duties of officers, committees, assessments and other routine conduct. Bylaws are in effect a contract among members and must be formally adopted and/or amended.
|
