Ab initio: (Latin) from the beginning.
Acceptance: One of three requirements for a valid contract under common law (the other two being offer and consideration). A contract does not become legally binding until one party has made an offer and the other party indicates his readiness to accept the terms of the offer. Acceptance must be unconditionally communicated to the offeror while the offer is still open. Acceptance of an offer can, in certain circumstances, be implied by conduct.
Accord and Satisfaction: A contract may be discharged if one party, who has complied with his part of the contract, accepts compensation from the other party instead of enforcing the contract. The accord is the agreement by which the obligation is discharged. The satisfaction is the consideration (usually money and of a lesser value) which makes the agreement operative.
Acquiescence: Action or inaction which legally binds someone, even unintentionally. For example, an action such as accepting goods from a supplier will be binding if it implies recognition of the terms of a contract.
Act of God: An event resulting from natural causes, without human intervention (such as floods or earthquakes). Insurance policies often exclude acts of God.
Action: Proceedings in a civil court.
Adjournment: Postponement of a hearing by a judge on whatever terms he sees fit.
Administrative law: Law which applies to hearings before quasi-judicial or administrative tribunals. Such hearings must be conducted in accordance with the principles of natural justice, such as audi alteram partem and nemo judex in sua causa.
Administrator: A person appointed to manage the property of another (such as the administrator of the estate of someone who has died without leaving a will).
ADR: Alternative dispute resolution (such as arbitration, mediation and conciliation).
Adverse possession: Possession of land, without legal title, for long enough – normally 12 years – to be recognized as the legal owner (“squatter’s rights”).
Affidavit: Sworn written statement signed by a deponent, who swears that its contents are true to the best of his knowledge and belief. It must be witnessed by a practising solicitor or commissioner for oaths.
Agent: Person with power to contract on behalf of others, binding them as if they were signing the contract themselves. The person represented by the agent is called the principal.
Aggravated damages: Exceptional damages awarded by a court where a defendant’s behaviour towards the plaintiff or victim has been particularly humiliating, malicious or vindictive.
Alternative dispute resolution: Method by which conflicts and disputes are resolved privately, other than through litigation, usually by mediation or arbitration. ADR involves the appointment of a third-party to preside over a hearing between the two sides. The advantages of ADR are privacy and speed. The disadvantage is that ADR may involve compromise of legal rights.
Antedate: To date retroactively, before a document was drawn up.
Appeal: Challenge to a court decision in a higher court.
Appearance: The act of replying to a summons or turning up in court and accepting its jurisdiction to try proceedings. A barrister or solicitor may make an appearance on a client’s behalf.
Appellant: Person who makes an appeal.
Arrears: Accumulated debt which has not been paid on the due date.
Assault: Touching – or threatened touching – of another person, without that person’s consent.
Assign: To give or transfer responsibility to another person. The person who receives the right or property is the assignee; the assignor is the person giving.
Attachment and committal: Bringing a person before a court, with a threat of imprisonment for failure to obey a court order.
Attachment of earnings: Court order for deduction of salary at source in order to pay, for example, maintenance or a debt.
Attorney General: Legal adviser to the Government, appointed by the President on the advice of the party in power.
Audi alteram partem: (Latin: hear the other side) A principle of natural justice which requires that, where a decision may affect an individual’s rights, that person has a right to be heard. It includes the right to receive notice of a hearing and to be legally represented.
Bailment: Temporary transfer of goods by a bailor to a bailee (for example, for storage), after which the property is either returned to the bailor or disposed of according to the contract of bailment.
Barrister: Specialist in litigation and advocacy who receives instructions from a solicitor. Barristers may not normally deal directly with members of the public.
Beneficiary: Person who receives a gift under a will, or for whose benefit property is held by an executor or trustee.
Bill of exchange: Written, signed instrument requiring the person to whom it is addressed to pay on demand (or on a future date) a fixed amount of money either to the person identified as payee or to anyone presenting the bill of exchange. A cheque is a form of bill of exchange.
Bill of lading: Document used in foreign trade, acknowledging that a company has received goods for transportation. The Bill serves as title to the goods until they have reached their destination.
Breach of contract: Failure or refusal to fulfil a term of a contract. The injured party may bring an action for damages, for enforcement or for cancellation of the agreement.
Burden of proof: A rule of evidence that requires a party to a court action to prove something, otherwise the contrary will be assumed by the court. For example, in criminal trials, the prosecution has the burden of proving the accused guilty beyond a reasonable doubt (because of the presumption of innocence).
Caveat: (Latin: let him beware.) A formal warning. Caveat emptor (let the buyer beware) is a warning to buyers to check for themselves things which they intend to buy, so they cannot later hold the vendor responsible for the faulty condition of the item. The Sale of Goods and Supply of Services Act 1980 extends the rights of consumers in this area.
Central Criminal Court: The High Court sitting to deal with serious criminal offences, such as rape and murder.
Certiorari: Form of judicial review whereby a court is asked to set aside the decision of an administrative tribunal, judicial officer or public organisation. Certiorari may be used where the decision of the lower tribunal was made in breach of the rules of natural justice. An application for certiorari must normally be made within six months of the decision.
Chambers: Judge’s personal rooms, where he may hear matters in private.
Charge: Form of security for payment of a debt.
Chattels: Moveable items of property which are neither land nor permanently attached to land or a building. (Land or buildings are described as “real property”.) Chattels are also known as personal property (or personalty). A freehold property is not a chattel, but a leasehold is.
Cheque: Form of bill of exchange where the order to pay is given to a bank holding the payor’s funds.
Child: Person under 18.
Circuit Court: Court above the District Court and below the High Court, with power to award damages up to €38,100.
Circuit Judge: Judge of the Circuit Court, addressed as “My Lord” whether male or female.
Class action: Legal action taken by a number of different persons where the facts and the defendants are similar. Class action lawsuits may occur, for example, after a public transport accident or in the case of a faulty drug, where all the victims sue the same defendant.
Clayton’s Case: This English case established a presumption that money withdrawn from an account is presumed to be debited against the money first deposited (first in, first out).
Codicil: Written amendment or addition to an existing will.
Collateral: Property committed to guarantee a loan.
Collusion: Illegal and usually secret agreement between two or more people to deceive a court or defraud another person.
Common law: Judge-made law which has developed over centuries, also referred to as “unwritten” law. Common law (as practised in Ireland, England and the USA) is often contrasted with civil law systems (such as in France or Germany) where laws are set down in a written code.
Company: Legal entity which permits a group of shareholders to create an organization to pursue set objectives. A company may have legal rights which are usually reserved for individuals, such as the power to sue and be sued, own property, hire employees or lend and borrow money. The main advantage of a company structure is that it gives shareholders a right to participate in profits (through dividends) without any personal liability.
Consent order: Court order agreed between both sides.
Consideration: Consideration has been defined as “some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other”. Under common law, any binding contract must have some consideration, no matter how small. The courts will not normally inquire into the sufficiency of the consideration; a “peppercorn rent” would be sufficient.
Consign: To leave property in the custody of another. An item can be consigned to a transport company, for example, to move it from one place to another. The consignee is the person who receives the property and the consignor is the person who ships the property to the consignee.
Construction: Legal process of interpreting a phrase or document. If a term is unclear or ambiguous, lawyers and judges must try and interpret (or construct) its probable intention and purpose. This may be done by referring to other parts of the document, by reference to the known intentions of those who drew up the document, or, in the case of statutes, by referring to an interpretation law which gives guidelines for construction.
Constructive trust: Trust imposed by a court in certain circumstances, regardless of the intention of the parties involved (such as where a trustee has improperly profited from his position).
Contempt: Deliberate disregard of a court order.
Contract: Agreement between two or more persons which obliges each party to do (or refrain from doing) a certain thing. A valid contract requires an offer, acceptance of that offer and consideration.
Contract law: Contract law is the basis of all commercial dealings. The terms of a contract may be express or implied. Express provisions may be varied by statute. Unfair contract terms are now excluded by legislation, and, in areas such as employment and the sale of goods, the law imports a wide range of implied terms into new and existing contracts.
Contributory negligence: Negligence which is not the primary cause of a tort, but which combined with the act or omission of another person to cause the damage. In the case of a car crash, for example, an injured driver who was not wearing a seat belt may be found contributorily negligent for his injuries.
Conversion: Legal proceeding for damages by a property owner against a defendant who found property and converted it to his own use – that is, retained it or otherwise interfered with it.
Conveyance: Written document transferring property from one person to another. Conveyances are usually drafted by solicitors.
Costs: The legal expenses of an action, such as lawyers’ fees, witness expenses and other fees paid out in bringing the matter to court. The rule is generally that “costs follows the event”, which means that the loser normally pays the legal costs of both sides. The judge has the final decision and may decide not to make an order on costs.
Counterclaim: Respondent’s claim against a plaintiff in the same action.
Covenant: Written document in which signatories either commit themselves to do (or not to do) something, or in which they agree on a certain set of facts. Covenants are very common in leases where a landlord will usually covenant to give the tenant “quiet enjoyment” and the tenant covenants to pay the rent, keep the premises in good repair and deliver them up at the end of the tenancy.
Creditor: Person to whom money, goods or services are owed by a debtor.
Crime: Act or omission forbidden by criminal law. The commission of a crime is punishable by a fine, imprisonment or some other form of punishment. Crimes are divided into minor offences (which may be tried in the District Court) and indictable offences, which are tried by a judge and jury in the Circuit Court or Central Criminal Court.
Cross-examination: In a trial, each side calls its own witnesses and may also question the other side’s witnesses under oath. Examination-in-chief is the questioning of a party’s own witnesses; cross-examination involves questioning the other side’s witnesses. A party may not put leading questions (which suggest the answer, or require a simple yes or no) to his own witness, but he may ask such questions in cross-examination.
Curtilage: Land around a dwelling house, used by the occupants for their enjoyment or work. Curtilage may be enclosed by fencing and includes any outhouses such as sheds, garages or workshops.
Damages: Financial compensation ordered by a court to offset losses or suffering caused by another person’s action or inaction. Damages are typically awarded in claims for breach of contract, negligence or breach of statutory duty.
De facto: (Latin: in fact) Something which exists in fact, though not necessarily approved by law (de jure). A common law spouse may be referred to as a de facto spouse, although not legally married.
De minimis non curat lex: (Latin: the law does not concern itself with trifles) A common law principle whereby very minor transgressions of the law are disregarded. Under the Consumer Information Act 1978, for example, a description must be false “to a material degree” to constitute an offence.
De novo: (Latin: anew) Used to refer to a trial which begins all over again, as if any previous partial or complete hearing had not occurred. A District Court appeal is heard by the Circuit Court de novo, with the court considering afresh all the law and facts.
Debtor: Person who owes money, goods or services to a creditor. If a court judgment has been registered against the person owing the money, he is known as a judgment debtor.
Deed: Written and signed document which sets out the agreement of the signatories in relation to its contents. Under common law, a deed had to be sealed – marked with an impression in wax. A deed is delivered by handing it to the other person. Usually a deed (or some other written evidence) is required in relation to actions involving land.
Defence: Response to claim by plaintiff.
Defendant: Person, company or organization which defends a civil action taken by a plaintiff and against whom the court is asked to order damages or corrective action to redress some unlawful or improper action alleged by the plaintiff. Also a person charged with a criminal offence.
Delegatus non potest delegare: (Latin: a delegate cannot delegate) A person to whom authority or decision-making power has been delegated by a higher source, cannot delegate that power to someone else, unless the original delegation explicitly authorised it.
Deponent: Person who swears an affidavit or deposition.
Descendant: Persons born of, or from children of, another. Grandchildren are descendants of their grandparents, as children are descendants of their natural parents. The law distinguishes between collateral descendants, such as nephews and nieces, and lineal descendants, such as sons and daughters.
Detinue: Tort involving the defendant’s retention of property belonging to the plaintiff after the plaintiff has demanded its return. The plaintiff may seek damages for the period of possession, even without proving any actual loss.
Devise: Transfer or conveyance of real property by will. The person who receives such property is called the devisee.
Director of Public Prosecutions: Independent official who decides whether to prosecute in criminal cases and in whose name all criminal prosecutions are taken.
Discovery: Sworn disclosure of documents and records. Certain types of document which are “privileged” need not be discovered, but they must be identified to the other side.
Distraint: Seizure of personal property to compel a person to fulfil a legal obligation. Formerly landlords had the power to distrain against the property of a tenant for arrears of rent or other default, but such action is now forbidden in relation to premises let solely as a dwelling. A legal action for the restoration of goods that have been distrained is called replevin.
District Court: Lowest court in the Irish judicial system, with power to award damages up to €6,350 in civil cases.
District Judge: Judge of the District Court, addressed as “Judge”.
Dividend: Proportionate distribution of profits made by a company in the form of a money payment to shareholders. Dividends are declared by the board of directors at the annual general meeting. The shareholders decide the dividend at the meeting, but it must not exceed the directors’ recommendation.
Domicile: A person’s fixed and permanent residence; a place to which, even if he is temporarily absent, he intends to return. Legally, a person may have many residences or several nationalities, but only one domicile.
Dominant tenement: Property or land that benefits from, or has the advantage of, an easement, such as a right of way.
Donatio mortis causa: (Latin: gift due to death) Gift made by a dying person with the intent that the person receiving the gift shall keep it if the donor dies from his existing complaint. Such a gift is excluded from the estate of the deceased, as the property is automatically conveyed on the donor’s death.
Donee: Beneficiary of a trust or person given a power of appointment.
Donor: Person who gives property for the benefit of another, usually through a trust. Sometimes referred to as a “settlor.” Also used to describe the person who signs a power of attorney.
Duces tecum: (Latin: bring with you) Type of subpoena which requires a person to appear before a court with specified documents or other evidence.
Duress: Threats or force preventing – or forcing – a person to act other than in accordance with free will. A contract signed under duress is voidable at the option of the person forced to sign it. Duress may invalidate a marriage.
Easement: A right over a neighbour’s land or waterway. An easement is a type of servitude. For every easement, there is a dominant and a servient tenement, or piece of land . Rights-of-way are the most common easements, but others include the right to tunnel under another’s land, to emit smoke or fumes, to access a dock and to use a well. An easement that is not used for a long time may be lost.
Emolument: Wages, benefits or profits received as compensation for holding office or employment.
Endorsement: Writing on a document. With a bill of exchange, an endorsement is a signature on the back of the bill by which the person to whom the note is payable transfers the right of payment to the bearer or to a specific person. An endorsement may restrict payment to one person only, and prohibit any further endorsements.
Endorsement of claim: Concise summary of the facts supporting a legal claim.
Endowment: Transfer of money or property (usually as a gift) to a charitable organisation for a specific purpose, such as research or a scholarship.
Equity: The law of equity developed to temper the rigid interpretation given by medieval English judges to the common law. For hundreds of years, there were separate courts in Ireland for common law and equity (known as courts of Chancery). Where decisions conflicted, equity prevailed. In 1877, the two systems were merged. The principles of equity, based on fairness, include “equity will not suffer a wrong to be without a remedy” and “equity looks on the intent, rather than the form”.
Estoppel: Rule of evidence which prevents a person from relying on facts when, by deed, word or action, he has led another person to act to his detriment on those facts. Estoppel is a defence, not a cause of action. Anyone who wishes to rely on the defence of estoppel to defend an action must plead it.
Evidence: Testimony of witnesses at a trial, or the production of documents or other materials to prove or disprove a set of facts. Evidence may be direct or circumstantial (that is evidence from which a fact may be presumed). The best evidence available – such as original, rather than copy, documents – must generally be presented to a court.
Ex aequo et bono: (Latin: in justice and fairness) Most legal cases are decided on the strict rule of law. But, where a case is decided ex aequo et bono, the judge may make a decision based on what is just and fair in the circumstances.
Ex parte: (Latin: on the part of) Court application made without notice to the other side. One party is therefore neither present nor represented.
Ex post facto: (Latin: after the fact) Ex post facto legislation retrospectively makes acts illegal which were committed before the law was passed.
Ex turpi causa non oritur actio: (Latin: No action arises from an illegal cause) A person may not sue for damage arising out of an illegal activity. A person may not sue on an illegal contract, because it is void from the time of its creation.
Examination-in-chief: Questioning of witnesses under oath by the party who called those witnesses (also called direct examination). After the examination-in-chief, the other side’s lawyer may question the witnesses in cross-examination. Thereafter, the first party may re-examine them, but only about issues raised during the cross-examination.
Executor: Person appointed by a testator to administer a will. The executor is a personal representative whose duties include burying the dead, proving the will, collecting in the estate, paying any due debts and distributing the balance according to the wishes of the deceased.
Exhibit: Document or object shown to a judge or jury as evidence in a trial. Each exhibit is given a number or letter as it is introduced, for future reference during the trial.
Express trust: Trust specifically created by a settlor, usually in a document such as a will, although it can be oral. An express trust which deals with land must be in writing.
Extradition: The arrest and handover of a person wanted for a crime committed in another country, usually under the terms of a extradition treaty. A person may not be extradited from Ireland for a political offence.
Fee simple: Freehold estate in land, the most extensive tenure allowed under the feudal system. A person who owns a fee simple estate may sell it, convey it by will or it may be transferred to an heir if the owner dies without leaving a will. For a fee simple estate to be conveyed in a will, the proper words of limitation must be used: either “To X in fee simple” or “To X and his heirs”.
Fee tail: Form of tenure that can only be transferred to a lineal descendant. In feudal times, if there were no lineal descendants, the land reverted to the lord on the death of the tenant.
Fiduciary: Person (such as a trustee, company director or executor) who exercises rights and powers for the benefit of another person, but without being under the control of that person. A fiduciary must not allow any conflict of interest to affect his duties and would not normally be allowed to profit from his position.
Fieri facias: (Latin: cause to be made) A writ of fieri facias commands a sheriff to take and auction off property to pay a debt (plus interest and costs) owed by a judgment debtor.
Foreclosure: Forfeiture of a right of redemption on a property (generally when someone fails to pay a mortgage). Even if there has been no payment, the borrower normally retains a equitable right of redemption if he can raise the money to exercise the right. To clear the title of this potential right, a lender can apply to court for a date to be set, by which the entire amount becomes payable. If payment is not made, the property belongs entirely to the lender, who is then free to go into possession or to sell it.
Fraud: Dishonest conduct designed to persuade another person to give something of value by lying, repeating something that is or ought to have been known by the fraudulent party to be false or suspect, or by concealing a relevant fact from the other party. Fraud allows a court to void a contract or to set aside a judgment, and can result in criminal liability. A person who defrauds creditors of a company may be held personally liable.
Freehold: Right to the full use of real property for ever (as opposed to leaseholds or tenancies, which allow possession for a limited time). Varieties of freehold include fee simple, fee tail and life estate.
Freeholder: Person who owns freehold property rights.
Goodwill: Intangible business asset based on the good reputation of a business and resulting attraction and confidence of repeat customers and connections. Part of the sale price of a business may be for goodwill, in which case the seller may not solicit former customers for his new business.
Gross negligence: Act or omission in reckless disregard of the consequences for the safety or property of another; more than simple carelessness or neglect. Gross negligence by an employee may justify summary dismissal.
Guarantor: Person who pledges collateral for another’s contract.
Hearsay: Evidence of which a witness does not have direct knowledge from his own senses but which is based on what others have said. Hearsay evidence is normally only admissible in court proceedings to show that a statement was made, not to prove the truth of the contents of the statement.
High Court: Court above the Circuit Court with full jurisdiction to decide all matters of law and fact. High Court judges – male and female – are normally addressed as “My Lord”.
In pari delicto: (Latin: equally at fault) If two parties are equally to blame for a situation (such as both failing to comply with the terms of a contract), a court could refuse to provide a remedy to either of them because they are in pari delicto.
In personam: (Latin: against the person) All legal rights are either in personam or in rem. An in personam right attaches to a particular person.
In rem: (Latin: against the thing) In rem rights relate to property and are not based on any personal relationship.
Incorporeal: Intangible legal rights, such as copyrights or patents.
Incorporeal hereditament: Intangible property rights which may be inherited, such as easements and profits à prendre.
Injunction: Court order that forbids a party to do something (prohibitory injunction) or compels him to do something (mandatory injunction). It may be enforced by committal to prison for contempt.
Insolvent: Person not able to pay his debts as they become due. Insolvency is a prerequisite for bankruptcy.
Inter alia: (Latin: among other things) Used to precede a list of examples covered by a more general descriptive statement.
Interim order: Temporary court order of very limited duration, usually until the court has heard the full facts of a case.
Interlineation: Addition to a document after it has been signed. Such additions are disregarded unless they are initialled by the signatories and, if necessary, witnessed.
Interlocutory injunction: An injunction which lasts only until the end of the trial during which the order was sought, when it may be replaced by a permanent injunction.
Inter partes: Latin: between the parties.
Inter vivos: (Latin: between living persons) An inter vivos trust is set up to take effect while the settlor is still alive (as opposed to a testamentary trust, which takes effect only on the settlor’s death).
Intestate: Person who dies without making a valid will.
Invitation to treat: An offer to receive an offer. Goods advertised by a shopkeeper are open to offers from customers. If goods are mistakenly marked with the wrong price, the retailer is not bound to accept that price because he has not offered the goods at that price: he has invited members of the public to make him an offer which he is entitled to accept or reject. A retailer who deliberately or consistently misprices goods, however, may be commiting an offence under the Consumer Information Act.
IOU: A written confirmation of a debt, signed by the debtor, which implies an undertaking to pay the sum owed at some future date. An IOU is not a negotiable instrument and may not be passed on to a third party.
Joint and several liability: Liability of more than one person, under which each may be sued for the entire amount of damages due by all. The obligation may arise by agreement or may be imposed by law.
Joint tenancy: Ownership of property by two or more people with a right of survivorship. If one owner dies, his share passes to the surviving owners so that, eventually, the entire property is held by one person. A valid joint tenancy requires the four unities: unity of interest (each joint tenant must have an identical interest, including equality of duration and extent), unity of title (the interests must arise from the same document), unity of possession (each joint tenant must have an equal right to occupy the entire property) and unity of time (the interests must have arisen at the same time). Married couples and trustees are frequently joint tenants. (Contrast with tenancy-in-common.)
Judicial review: Proceedings in which a court is asked to rule on a decision of an administrative body or quasi-judicial tribunal. Judicial review is not usually limited to errors in law but may be based on alleged errors on findings of fact or unfair procedures. Judicial review proceedings may not be brought in the area of private law where the disputed decision is a matter of contract or agreement between two sides.
Junior counsel: Barrister who has not “taken silk” or been called to the Inner Bar.
Jurisdiction: Power of a judge or court to act, limited by a defined territory (the jurisdiction of the District Court is restricted to offences committed in that district), by the type of case (the jurisdiction of a criminal court is limited to criminal cases) or to certain persons (a court martial only has jurisdiction over military personnel).
King’s Inns: The body responsible for the training of all barristers in Ireland.
Knock-for-knock: An arrangement between insurance companies whereby each company pays the claim of its own insured, on the basis that neither party will pursue a claim against the other.
Landlord: Owner of a building or land who leases the land, building or part thereof, to another person, who is called the tenant or lessee.
Lay litigant: Non-lawyer who brings a legal action without the assistance of a barrister or solicitor.
Lease: Contract between a property owner and another person for temporary use of property, in exchange for rent.
Legal Aid: Government scheme providing advice or assistance from a solicitor or barrister free or at a reduced rate.
Legal professional privilege: Confidential communications between a lawyer and client may not be revealed in court unless the client, expressly or impliedly, waives the privilege. The communications must relate to court proceedings or intended litigation.
Liability: Any legal obligation or duty, now or in the future. A person who is liable for a debt or wrongful act is the person responsible for paying the debt or compensating for the wrongful act. If a court finds a person to be contributorily liable, he will bear part of the responsibility for the act or omission.
Licence: Permission to do something on or with someone else’s property which, if it were not for the licence, could be legally prevented or could give rise to an action in tort or trespass. A common example is allowing a person to cross the licensor’s lands, which would otherwise constitute trespass. Licences, unlike easements, may be revoked at will, unless supported by some form of payment or consideration. Licences which are not based on a contract and which are fully revocable are called simple or bare licences.
Lien: Right to hold property which has been sold, but not finally paid for. It may involve possession of the object until the debt is paid or the lien may be registered against the object (especially land). Ultimately, a lien can be enforced by a court sale of the property to which it is attached, and the debt is paid out of the proceeds of sale.
Life estate: Right of a tenant to use land during his lifetime. The estate reverts to the grantor (or some other person) on the death of the life tenant. A property right which lasts until the life tenant dies is called an estate pur sa vie (French: for his life). If it is for the duration of the life of a third party, it is called an estate pur autre vie (French: for another’s life). The life tenant is not allowed permanently to change the land or structures on it.
Life tenant: Beneficiary of a life estate.
Lineal descendant: Direct descendant (for example, the child of his natural parent).
Limitation of actions: The Statute of Limitations sets down times within which proceedings must be brought. If no action is taken within the prescribed time limits, any future action is said to be statute-barred. In negligence claims, where there is no personal injury, the limit is six years. Where there is personal injury, the limit is three years (reduced to one year by the introduction of a bill in 2004). In a fatal injury case, it’s three years from the date of death. In a claim involving breach of a simple contract (not under seal), the limit is six years. With personal injury arising from breach of contract, it’s three years (or three years from the date of death). With a specialty contract (under seal), the period’s 12 years, as it is for actions involving land. The maximum period for recovery of arrears of tax or rent is six years.
Liquidation: Sale of all the assets of a company or partnership by a liquidator and use of the proceeds to pay off creditors. Any money left over is distributed among shareholders or partners according to their interests or rights.
Lis pendens: (Latin: pending action) Registration of a pending action against the owner of land. It does not bind any subsequent purchaser of the land until a memorandum is registered in court.
Locus standi: (Latin: place of standing) Person’s right to take an action or be heard by a court.
Mandamus: (Latin: we command) High Court order commanding an individual, organisation, administrative tribunal or court to perform a certain action – usually to correct an earlier illegal action or failure to fulfil some statutory duty.
Mediation: Form of alternative dispute resolution involving an agreed mediator acting as a facilitator to help the parties negotiate an agreement. The mediator does not adjudicate on the issues or force a compromise; only the parties involved can resolve the dispute. The result of a successful mediation is called a settlement.
Mens rea: (Latin: guilty mind) Most crimes require proof of guilty intention before a person can be convicted. The prosecution must prove either that the accused knew his action was illegal or that he was reckless or grossly negligent. Some offences (such as drunken driving) are matters of strict liability, which means that the intention or state of mind of the person committing the offence is irrelevant.
Minor: Person under the age of 18 who is not married (or has not been married). A minor may only enter into certain contracts, such as those for necessaries or an apprenticeship. An Irish resident under the age of 18 may not legally marry without the permission of the Court, even if the ceremony takes place somewhere (such as Northern Ireland) where the minimum age for marriage is under 18.
Misfeasance: Improperly doing something which a person has a legal right to do. Contrast with nonfeasance.
Misjoinder: When a person has been wrongly named as a party to a law suit, a court will usually amend the proceedings to strike out the name of the misjoined party and substitute the person who should have been joined.
Misrepresentation: False material statement which induces a party to enter into a contract; grounds for rescission of the contract.
Mitigation: Facts which, while not negating an offence or wrongful action, tend to show that the defendant may have had some excuse for acting the way he did. For example, provocation may constitute mitigating circumstances in an assault action.
Mitigation of damages: A person who sues another for damages has a duty to minimize his loss, as far as reasonable. For example, in a wrongful dismissal suit, the person who was fired should make some effort to find another job, to minimize the economic damage to himself.
Moiety: Half of anything. For example, joint tenants each hold a moiety of the property.
Mortgage: An interest given on land, in writing, to guarantee the payment of a debt or the execution of some action. It automatically becomes void when the debt is paid or the action is executed. The person lending the money and receiving the mortgage is called the mortgagee; the person who concedes a mortgage as security upon his property is called a mortgagor. The three types of mortgage are a legal mortgage (involving a transfer of the legal interest in the property), an equitable mortgage (by depositing the title deeds) and a judgment mortgage (following a court judgment).
Natural justice: The requirement for application of the tenets audi alteram partem (hear the other side) and nemo judex in causa sua (no-one may be a judge in his own case). The principles of natural justice were derived from the Romans, who believed that some legal principles were natural or self-evident and did not need a statutory basis.
Natural person: Human being with legal and Constitutional rights and duties, including the right to life, right to information, right to travel, right to a good name, right to earn a living, right to sue and be sued, to sign contracts, to receive gifts and to appear in court either by himself or through a lawyer. Individuals are persons in law unless they are minors or under some other type of incapacity, such as a court finding of mental incapacity. Contrast with a company, which is a legal person.
Negligence: Carelessness. A person who owes a duty of care to someone else and breaches it by lack of reasonable care may be liable in damages for negligence. The negligence may involve a positive deed or a failure to act. If no damage results, there can be no action. The standard of care required is usually that of the reasonable man, but a person who claims to have special skills (such as a surgeon) owes a higher duty of care.
Nemo judex in sua causa: (Latin: nobody may be a judge in his own case) Principle of natural justice. A judge must be seen to be free of bias and may not have any interest – personal, pecuniary or otherwise – in a case he is deciding. Also referred to as nemo debet esse judex in propria causa.
Next of kin: Person’s nearest blood relation. The expression has come to describe those persons most closely related to a dead person and therefore due to inherit his property if there is no will.
Non est factum: (Latin: not his deed) Defence in contract law which allows a person to avoid liability because he was mistaken about the nature of the contract. For example, a person who signs away the deed to a house, thinking that the document was only a guarantee for a debt, might be able to plead non est factum. Failure to read the terms of a contract will negate this defence.
Nonfeasance: Not doing something that one is bound to do by law. Compare with misfeasance.
Non-joinder: If a person who should have been a party to legal proceedings has been omitted, the court may amend the pleadings to include the non-joined party.
Novation: Substitution of a new contractual debt for an old debt by agreement between the debtor, the creditor and a third party who takes on responsibility for the original debt.
Nudum pactum: (Latin: an empty agreement) An agreement without consideration, such as a unilateral undertaking, which may bind a person morally, but not under contract law, unless the agreement is under seal.
Nuisance: Substantial unlawful use of one’s property or interference with another’s property to the extent of unreasonable annoyance or inconvenience to a neighbour or to the public. Private nuisance might be caused by smells, noise, smoke, dust, fumes, vermin, obstruction or a wide range of other activities or inactivity. The remedies would include abatement (an order to cease the nuisance), damages and/or an injunction.
Obiter dicta: (Latin: sayings by the way) Observations by a judge on law or facts not specifically before the court or not necessary to decide an issue. An opinion which does not form part of the judgment for the purposes of stare decisis. Such opinions are not binding in future cases.
Offer: Definite proposal to contract which, if accepted, completes the contract and binds both the person that made the offer and the person accepting the offer to the terms of the contract. The offer may be express or implied. The person making the offer is called the offeror, and the person to whom the offer is made is the offeree.
Order: Formal written direction by a judge. Once a final order is made, it may only be amended if there has been an accidental slip in the judgment.
Out-of-court settlement: Agreement between two litigants to settle a matter privately before a court has heard the matter or given its decision. Most personal injuries cases settle before reaching court.
Partition: Division of jointly-owned land or property between the respective owners.
Partnership: Two or more persons carrying on a business together. Partners are each fully liable for all the debts of the enterprise but they also share the profits exclusively. Their rights are regulated by their partnership agreement.
Patent: Exclusive privilege granted to an inventor to make, use or sell an invention for a period of years. A renewal fee must be paid every year.
Payee: Person to whom a bill of exchange is made payable. On an ordinary cheque, the name preceded by the words “pay to the order of” identifies the payee.
Payor: Person who makes a payment on a cheque or bill of exchange.
Pendente lite: (Latin: during litigation) If the validity of a will is challenged, a court may appoint an administrator pendente lite with limited powers to preserve the assets of the deceased until a hearing on the validity of the will.
Per quod servitium amisit: (Latin: by which he lost the service) Action for damages by an employer for the loss of services of an injured employee, against the person responsible for the injury.
Per stirpes: (Latin: by stocks) Inheriting per stirpes means the division of a deceased’s estate among his descendants, with the children of a deceased son or daughter dividing their parent’s share equally among themselves.
Perjury: Deliberate lie under oath or in a sworn affidavit.
Perpetuity: Forever, of unlimited duration. The law leans against against agreements that are to last in perpetuity because they may hinder commerce by impeding the circulation of property. The rule against perpetuities says that a limitation of any interest in land is void if it can vest outside the perpetuity period, which is a life plus 21 years. For example, if a will proposes the transfer of an estate at some uncertain future date, which is either more than 21 years after the death of the testator or more than 21 years after the life of a person identified in the will, the transfer is void.
Personal representative: Person who administers the estate of a deceased person. Where a person dies without a will, the court appoints an administrator. A personal representative named in a will is called an executor.
Petition: Formal, written submission to court, seeking redress of an injustice. Petitions set out the facts, identify the law under which the court is being asked to intervene, and end with a requested course of action for the court to consider (such as payment of damages). Petitions are normally used to institute proceedings in the areas of bankruptcy, patents, professional disciplinary bodies and family law matters.
Picket: Peaceful public demonstration, on or near an employer’s premises, in furtherance of an existing or proposed trade dispute. Picketers may not threaten, insult or abuse other workers.
Plaintiff: Person who brings a case to court. (Also called the petitioner or applicant.) The person being sued is generally called the defendant or respondent.
Pleadings: Written allegations or claims delivered by one claimant to another which formally set out the facts and legal arguments supporting his position. High Court pleadings might include an originating summons, statement of claim, defence, counterclaim and reply – or a petition and answer.
Power of attorney: Document under seal which gives a person the right to make binding decisions for another, as an agent. A power of attorney may be specific to a certain kind of decision or general, in which the agent makes all major decisions for the subject of the power of attorney.
Precatory words: Words that express a wish, hope or desire rather than a clear command. Precatory words in trusts or wills can cause problems when the courts have to decide the real intention of the settlor or testator. If a gift is given, with the addition of precatory words, the courts tend to construe the words as expressing the reason for the gift, rather than a restriction on its use or the establishment of a trust.
Precedent: Court judgment which is cited as an authority in a later case involving similar facts. Precedent cannot bind a higher court (for example, a Circuit Court decision cannot bind a High Court judge). A Supreme Court judgment binds all courts – although it does not bind the Supreme Court itself in future cases. The system of precedent forms the basis of the policy of stare decisis which helps litigants to predict the outcome of a case in a given situation.
Preference shares: Shares in a company that have some kind of special right or privilege over other shares. The most common special right is a preference over holders of ordinary shares when dividends are declared. Dividends on preference shares are presumed to be cumulative, in the absence of any agreement to the contrary, so unpaid dividends are payable before any ordinary dividends.
Prescription: Way of acquiring property rights, such as an easement, by long and continued use or enjoyment. The required period of continued use or enjoyment, before legal rights are enforceable, is set out in the 1832 Prescription Act.
Prima facie: (Latin: at first sight) A prima facie case is one which, at first sight, seems to support the allegation or claim made. If a prima facie case is not made out in the early stages of proceedings, the other side may apply to the court to dismiss the action without hearing the rest of the evidence.
Principal: Person from whom an agent has received instructions and for whose benefit the agent acts and makes decisions. The principal has a duty to pay the agent any agreed sum or commission, and to indemnify him against any losses in the course of his agency.
Private law: Domestic law which regulates the relationships between individuals and in which the State is not directly concerned. Family, commercial and labour law are examples of private law because their focus is the relationships between individuals or between corporations or organisations and individuals.
Privilege: Special legal right such as a benefit, exemption, power or immunity. One example is the right of the media to publish contemporaneous reports of court proceedings without fear of an action for defamation, even if the matters published would ordinarily constitute libel.
Pro rata: (Latin: in proportion) Division proportionate to a certain rate or interest. For example, if a company with two shareholders, one with 25% and the other with 75% of the shares, declared a dividend of €1,000 to be split pro rata between the shareholders, the one with 25% of the shares would receive €250 and the other €750.
Pro tempore (pro tem): (Latin: for the time) Temporary or for the time being.
Probate law: That part of the law which regulates wills and other subjects related to the distribution of a deceased person’s estate.
Profit à prendre: (French: profit to be taken) Right which allows the holder to enter the land of another and to take some natural produce, such as fish, game, timber, sand, crops or pasture.
Prohibition: Legal restriction on the use of something or on certain conduct.
Promissory note: Unconditional, written and signed promise to pay a certain amount of money on demand or at a certain defined date in the future. Unlike a bill of exchange, a promissory note is a promise – rather than an order – to pay.
Property: Property is commonly thought of as something which belongs to a person and over which he has total control. But it is more correctly defined as a collection of legal rights over a thing. These rights are usually enforceable by the owner or the State against others. The most common classifications of property are between real or immovable property (such as land or buildings) and chattels or personal property (such as stock or a leasehold), and between public property (belonging to everybody or to the State) and private property.
Prospectus: Document or notice in which a company sets out details of a proposed share or bond issue, inviting the public to invest by purchasing the financial instruments. It must specify the nominal capital of the company, the names, addresses and descriptions of the directors, when the subscription lists open, the amount payable on application and on allotment of shares, and the rights in respect of different classes of share.
Proxy: Agent who votes on behalf of another. Any shareholder who is entitled to vote at a meeting of a company is entitled to appoint a proxy to vote in his place. The member may direct the proxy which way to vote.
Punitive damages: Special, exceptional damages ordered by a court where an act or omission was of a particularly serious, extensive or malicious nature. (Normally damages are awarded to compensate, not to punish.) Also known as exemplary damages.
Quantum meruit: (Latin: as much as he has deserved) Principle stating that a person should not be obliged to pay (nor another allowed to receive) more than the value of the goods or services provided.
Quid pro quo: (Latin: something for something) Giving something in exchange for something else. As consideration, it is an essential ingredient of a valid contract.
Quo warranto: (Latin: by what authority) Judicial review procedure questioning the authority of a person or organisation.
Quorum: (Latin: of whom) Minimum number of people necessarily present at a meeting for business to be validly conducted. Without a quorum, decisions are invalid.
Rebuttable presumption: Presumed fact based on the proof of other facts. Most presumptions are rebuttable, which means that the person against whom the presumption applies may present evidence to the contrary, thus nullifying the presumption. If a person has not been heard of for seven years by people who should have seen him, he may be presumed dead – but this presumption is rebutted if he turns up!
Redemption: Repayment of a mortgage, so the equitable estate of the lender and the legal estate of the borrower merge in the mortgagor.
Rent: Money or other consideration paid by a tenant to a landlord in exchange for the exclusive possession and use of land, buildings or part of a building. Under normal circumstances, rent is paid at regular agreed intervals, but it may be paid in kind or by the provision of services. A peppercorn rent is a nominal sum (perhaps a penny a year) as an acknowledgement of the tenancy.
Replevin: Legal action to recover goods which have been distrained. The applicant must give an undertaking to keep the goods safe, to continue with his court action and to return the goods if ordered to do so.
Res ipsa loquitur: (Latin: the thing speaks for itself) Situation where negligence is presumed against the defendant since the object causing injury was under his control. This is a presumption which can be rebutted by showing that the accident was inevitable and had nothing to do with the defendant’s control or supervision. An example of res ipsa loquitur might be where a motorist hits a stray cow. The event itself imputes negligence by the farmer and that presumption may only be defeated if the defendant proves that the land was properly fenced.
Rescission: Abrogation or cancellation of a contract, putting the parties in the same position they would have been in, had there been no contract. Rescission can occur because of some defect in the formation of the contract (such as misrepresentation, duress or undue influence) or by agreement of the parties – for example where they reach a new agreement.
Reserved costs: Apportionment of payment of legal fees to be decided at a later stage.
Reserved judgment: Decision to be given at a later date.
Residence: Place where someone usually – but not necessarily permanently – lives.
Respondent: Person against whom a summons is issued, or a petition or appeal brought.
Restitutio in integrum: (Latin: restoration to the original position) In a breach of contract case, the injured party may ask the court to restore the parties to the positions they were in before the contract was signed. But if the court finds that restitutio in integrum is not possible because of subsequent actions or events, it may order payment of damages instead.
Resulting trust: Trust which comes into being when an express trust fails. It is similar to a constructive trust but the court will presume an intention to create a trust. The court will assume that the possessor of property is only holding it in trust for the rightful owner. (In constructive trusts, the courts do not presume any intention to create a trust.)
Reversion: Future interest in property retained by a transferor or his heirs (for example, the interest left when the owner of a fee simple grants a life estate in the property).
Riparian rights: Rights of owners of land on a river bank. Riparian rights include the right of access to, and use of, the water for domestic purposes (bathing, cleaning and navigating). The owner of the rights may take action to prevent damming, diversion or pollution of the water.
Scienter: (Latin: knowledge) Common law rule that the owner of a vicious dog must keep it secure. A person bitten by such an animal may bring an action, even if the dog has never bitten anyone before.
Search warrant: Written order (normally issued by a judge or peace commissioner) giving gardai permission to enter private property, to search for and seize evidence of the commission of a crime, the proceeds of crime or property that they suspect may be used to commit a crime.
Senior counsel: Barrister who has “taken silk” or been called to the Inner Bar.
Sequestration: Temporary confiscation of property by court order until the owner purges his contempt by obeying an earlier court order.
Service: Delivery of court documents by one party to the other, personally or by post.
Servient tenement: Land subject to an easement. The beneficiary of the easement is called the dominant tenement.
Settlement: Agreed compromise of proceedings.
Settlor: Person who creates a trust by donating property to be administered by a trustee.
Share: A portion of a company. A share certificate constitutes proof of share ownership. Those owning shares in a company are called members or shareholders. There are two basic kinds of shares: ordinary and preferred. A shareholder is not normally liable for the debts or other obligations of the company, except to the extent of any commitment made to buy shares. Two other benefits of shares include a right to participate in profits (through dividends) and a right to share the residue of assets of the company if it is dissolved, once liabilities have been paid off.
Silent partner: Person who invests in a company or partnership, shares in the profits or losses but takes no part in administering or directing the organisation.
Slander of title: Falsely and maliciously denying someone’s title to property including real property, a business or goods (the latter might also be called “slander of goods”). The tort is only actionable if damage has been suffered.
Solicitor: General lawyer who may deal directly with the public.
Special Criminal Court: Non-jury court with three judges, set up to deal with mainly terrorist offences.
Stare decisis: (Latin: to stand by decisions) Policy whereby, once a court has made a decision on a certain set of facts, lower courts must apply that precedent in subsequent cases which embody the same facts.
Strict liability: Liability in tort without need to prove wrongful intent, negligence or fault.
Sub judice: (Latin: under trial) Matter still under consideration by a court. Any action which may interfere with the proper administration of justice while a matter is sub judice may be a contempt of court.
Subpoena: (Latin: under penalty) Court order requiring a witness to attend at a certain time and place or suffer a penalty.
Subrogation: Substitution of one person or thing for another by operation of law, without the agreement of the person from whom the rights are transferred.
Substituted service: If a party appears to be avoiding service of legal documents, the court may be asked to direct that, instead of personal service (that is giving the documents directly to the person), they should be served in a different way, perhaps by posting them to the defendant’s home or office or leaving them with a member of his family.
Successor: Person who takes over the rights or property of another.
Sui juris: (Latin: of his own right) Person who has full legal rights and is not under any incapacity, such as being bankrupt, a minor or mentally incapable.
Summons: Written command to a person to appear in court.
Supreme Court: Final court of appeal in Ireland, headed by the Chief Justice. Most appeals are on matters of law or procedure. The Supreme Court will not normally reverse a finding of fact by a lower court, unless the decision was so perverse that no ordinary person could have come to such a finding on the facts presented.
Surety: Person who has pledged himself by deed to ensure that another person fulfils an obligation – such as appearing in court or paying back a loan.
Tenancy in common: Tenants-in-common share property rights, but may hold different parts of a piece of land, or unequal shares. On the death of either of them, that person’s share does not pass automatically to the surviving tenant but becomes part of the deceased’s estate.
Tender: Unconditional offer of a party to a contract to perform his side of the bargain. For example, with a loan contract, a tender would be the debtor’s offer to repay the amount owing to the creditor. If the tender is refused, the contract comes to an end.
Tenement: Property that could be subject to common law tenure, such as land, buildings or apartments. In relation to business tenants, a tenement is a defined portion of a building held by the occupier on a tenancy and not dependent on the continued employment of the tenant.
Tenure: Right to hold or occupy land or a position for a certain amount of time.
Testator: Person who dies after making a valid will.
Testimony: Verbal presentation of evidence in court.
Tort: Non-contractual breach of duty which allows the injured person to claim compensation (or damages) from the tortfeasor. Torts include wrongs such as negligence, nuisance, defamation, false imprisonment and trespass.
Tortfeasor: Person who commits a tort.
Tracing: Equitable right of a plaintiff to reclaim specific property, through the court, where the property has passed on to others. This procedure is frequently used by a trust beneficiary to recover misappropriated trust property. Property may not be recovered from a person who has bought it for value, without notice of the circumstances.
Transferee: Person who receives property being transferred.
Transferor: Person who transfers property.
Trespass: Unlawful interference with another person or his property or rights. Trespass is a civil, not a criminal, offence and is actionable without proof of any actual damage.
Trust: Property given by a donor or settlor to a trustee, for the benefit of another person (the beneficiary or donee). A trustee manages and administers the property. A will is a form of trust but a trust can be formed during the lifetime of the settlor, in which case it is called an inter vivos or living trust.
Trustee: Person who holds property rights for the benefit of another through the legal mechanism of the trust. A trustee usually has full management and administration rights over the property, which must be exercised to the advantage of the beneficiary. All profits from the trust go to the beneficiary, although the trustee is entitled to recover administrative costs.
Ultra vires: (Latin: beyond the powers) An action which is invalid because it exceeds the authority of the person or organisation which performs it. A company cannot normally be bound by an act which it is not empowered to do by its memorandum of association.
Undertaking: Enforceable promise given to court.
Undue influence: Unfair pressure which may invalidate a contract.
Unjust enrichment: Profit unjustly obtain by a wrongdoer. To obtain reimbursement, the plaintiff must show an actual benefit to the defendant, a corresponding loss to the plaintiff and the absence of a legal reason for the defendant’s enrichment.
Usury: Excessive or illegal interest rate.
Verdict: Decision of a jury. In criminal cases, this is usually expressed as guilty or not guilty and may be unanimous or by a majority of 11-1 or 10-2. In a civil case, the verdict would be a finding for the plaintiff or for the defendant by at least nine of the 12 jurors.
Videlicet: (Latin: that is to say) The abbreviation of videlicet ( viz.) is commonly used in legal documents to advise that what follows provides more detail about a preceding general statement.
Vicarious liability: Responsibility for the tort of another, even though the person held responsible may not have done anything wrong. This is often the case with employers who may be held vicariously liable for damage caused by their employees.
Void: Without legal effect. A document that is void is worthless. An anti-competitive agreement or contract in restraint of trade may be void. A “marriage” involving a person under the age of 18 would be void in Ireland.
Voidable: The law distinguishes between void and voidable contracts. Some contracts have such a fundamental defect that they are said to be void. Others have more minor defects and are voidable at the option of the innocent party.
Voire dire: (French: To speak the truth) Separate trial within a trial, generally in the absence of the jury, on the admissibility of contested evidence.
Volenti non fit injuria: (Latin: those who consent may not be injured) Defence in tort which prevents a person who knowingly and voluntarily assumes a risk (by, for example, engaging in a dangerous sport) from later seeking compensation for any injury suffered.
Waste: Abuse, destruction or permanent change to property by a person who is merely in possession of it, such as a tenant or a life tenant.
Words of limitation: Words in a conveyance or will which limit the duration of an estate. If a testator leaves property “to X and his heirs”, the words “and his heirs” are words of limitation because they indicate that X gets the land in fee simple and his heirs get no interest.
Words of purchase: Words in a conveyance or will which specifically name the person to whom land is being conveyed.
Young person: Person under 16, whose regular, full-time employment is forbidden by the 1996 Protection of Young Persons (Employment) Act. A child over 14 may do light work during school holidays, but a child under 14 cannot be employed at all.
Zero hours: If an employee is available for work but there is no work for him to do, the zero hours provision of the Organisation of Working Time Act 1997 requires the employer to compensate him for one quarter of the time for which he had to be available.