Glossary of Legal / Insolvency Terms

Glossary of Legal / Insolvency Terms

Click on the initial letter of the legal word or phrase you want to look up.

Click on the initial letter of the legal word or phrase you want to look up.

A

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 offer or 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.

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.

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.

Appeal: Challenge to a court decision in a higher court.

Appellant: Person who makes an appeal.

Arrears: Accumulated debt which has not been paid on the due date.

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 a County Court Judgment.

B

Bailee: Person who accepts property through a contract of bailment, from the bailor, and who has certain duties of care while the property remains in his possession.

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 now 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 civil trials, the Claimant has the test of proving their case is the stronger of the two “on the balance of probabilities”.

C

Case law: Published court decisions which establish legal precedents, binding lower courts.
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 Supply of Goods and Services Act 1982 extends the rights of consumers in this area.
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.
Charging Order: After obtaining a County Court Judgment, a Claimant may place a legal charge over an asset owned by the Defendant, thus preventing them from disposing of the asset, without first discharging the debt owed under the CCJ.
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 personality). 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 payer’s funds.
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.
Codicil: Written amendment or addition to an existing will.
Collateral: Property committed to guarantee a loan.
Common law: Judge-made law which has developed over centuries, also referred to as “unwritten” law. Common law 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.
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.
Counsel: Barrister(s).
Counterclaim: Respondent’s claim against a Claimant 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.
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.

D

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.
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 Defendant.
Defendant: Person, company or organisation 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 Claimant. Also a person charged with a criminal offence.
Deponent: Person who swears an affidavit or deposition.
Detinue: Tort involving the Defendant’s retention of property belonging to the Claimant after the Claimant has demanded its return. The Claimant may seek damages for the period of possession, even without proving any actual loss.
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.
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.
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.

E

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..
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 parte: (Latin: on the part of) Court application made without notice to the other side. One party is therefore neither present nor represented.
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.
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.

F

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 an 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.

G

Garnishee: (now known as Third Party Debt Order): Person who owes a third party a debt, such as a bank, which is attached by court order for the benefit of a judgment creditor. The bank account is frozen whilst the court hears why the bank should not pay out the value of the County Court Judgment to the Creditor from the funds in that account held by the Debtor. The application will fail if the account is overdrawn.
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.

H

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.

I

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.
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.
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 committing an offence.
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.

J

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.

L

Lay litigant: Non-lawyer who brings a legal action without the assistance of a barrister or solicitor.
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.
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 a claim involving breach of a simple contract, such as non-payment of invoices the limit 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.
Locus standi: (Latin: place of standing) Person’s right to take an action or be heard by a court.

M

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.
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.
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.

N

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.
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.

O

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.
Order to Obtain Information: (formerly an Oral Examination) An order seeking the personal attendance of either the debtor or the debtor’s representative in the case of a company to appear before an Officer of the County Court and to provide evidence of their financial means. Failure to comply with the order can lead to imprisonment.
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.

P

Pari passu: (Latin: with equal step) Often used in bankruptcy proceedings where creditors are said to rank pari passu, which means the assets are distributed without preference between them.
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.
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.
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.
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.
Precedent: Court judgment which is cited as an authority in a later case involving similar facts. Precedent cannot bind a higher court.
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.
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.
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.
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.

Q

Quantum: Latin: amount or extent.
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.
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.

R

Real property: Immovable property such as land, buildings or an object that, though at one time a chattel, has become permanently affixed to land or a building.
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.
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 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.
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.

S

Sanction: To ratify, to approve or to punish.
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.
Settlement: Agreed compromise of proceedings.
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.
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.
Summons: Written command to a person to appear in court.
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.

T

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.
Testimony: Verbal presentation of evidence in court.
Third Party Debt Order: see also Garnishee. Person who owes a third party a debt, such as a bank, which is attached by court order for the benefit of a judgment creditor. The bank account is frozen whilst the court hears why the bank should not pay out the value of the County Court Judgment to the Creditor from the funds in that account held by the Debtor. The application will fail if the account is overdrawn.
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.
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.

U

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 Claimant must show an actual benefit to the defendant, a corresponding loss to the Claimant and the absence of a legal reason for the defendant’s enrichment.
Usury: Excessive or illegal interest rate.

V

Variation: Alteration of term of court order.
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
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.

W

Waiver: Renunciation of a right or benefit. Waivers are not always in writing. Sometimes actions can be interpreted as a waiver.
Warrant of Execution: An instruction passed to the bailiff of the County Court to attend at the Defendant’s address to seize and remove goods of sufficient value for sale at public auction to discharge the debt owing to the Claimant.
Without Prejudice: The basic meaning is ‘without loss of any rights’. It is a term used when two parties are in dispute, and one makes a settlement offer to the other. It puts ‘without prejudice’ on its offer to make it clear that the settlement offer should not be construed as a waiver of rights. Importantly, communication marked ‘without prejudice’ cannot be used in evidence in court proceedings if the attempts at settlement fail and the dispute comes to court

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