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COMM 393
Deborah Meredith

GLOSSARY Appellant – the party who petitions for an appeal Respondent – the party who defends on an appeal New Trial – a case sent back by the appeal court for retrial by the lower court Unincorporated collectivity – a group of persons that in most cases is not recognized by the courts and that may not sue or be sued Class action - an action in which an individual represents a group and the judgment decides the matter of all members of the class at once Res judicata – a case that has already been decided by a court and cannot be brought before a court again Settlement – an out of court procedure by which one of the parties agrees to pay a sum of money or perform an act in return for a waiver by the other party of all rights arising from the grievance Counsel – lawyer Entering (filing) an appearance – filing a notice of an intention to contest an action Statement of defence –a reply to a statement of claim, admitting facts not in dispute, denying other facts, and setting out facts in support of the defence Counterclaim – a claim by the defendant arising from the same facts as the original action by the plaintiff to be tried along with that action Pleadings - documents filed by each party to an action providing information it intends to prove in court Admissible evidence – evidence that is acceptable to the court Hearsay – words attributed by a witness to a person who is not before the court Reserve judgment – postpone giving a decision after the hearing ends Costs - funds paid by litigants to cover a portion of the gov’t expenses in maintaining the court system Legal aid – a system where the gov’t pays for many legal services provided to low income litigants Solicitor-client fee – payment for the time and expenses of a lawyer in preparing a case and representing the client in negotiations to settle or in court Party and party costs – an award that shifts some of the costs of litigation to the losing side according to a published scale of fees Contingent fee - a fee paid for a lawyer’s services only if the client is successful, there is no charge if the client is unsuccessful ADR - alternate dispute resolution – using private procedures instead of the courts to resolve disputes Arbitration – a from of ADR where a dispute is referred to an arbitrator who adjudicates the matter and the parties agree to be bound by the arbitrator’s decision, although there may a be a right to appeal to the courts Adjudicate – hear parties and deliver a decision with reasons Mediation – a form of ADR where a neutral third party who is acceptable to both sides acts as a mediator, assisting the parties to reach a settlement Judicare – a model of legal aid in which lawyers agree to be paid according to gov’t fee schedules for serving clients who qualify for legal aid Community legal services or legal clinic – a model of legal aid where legal services are delivered by community law offices with full time staff lawyers and managed by boards elected by residents of the community Solicitor – an office lawyer in England who interviews clients, carries on legal aspects of business and family affairs, and prepares cases for trial Barrister – a lawyer in England who accepts cases from solicitors and presents them in court, and also acts a consultant n complex legal issues Brief – a case handed by a solicitor to a barrister Notary – a solicitor in quebec Advocate – a barrister in quebec Attorney – a lawyer in the US encompassing the roles of both barrister and solicitor Judgment creditor – a party who has obtained a court judgement for a sum of money Judgment debtor - a party who has been ordered by the court to pay a sum of money Levy execution – seize and sell a debtor’s chattels or arrange for sale of his lands Execution order – an order that gives the sheriff authority to levy execution Garnishee order – an order requiring the employer to retain a portion of the debtor’s wages each payday and surrender the sum to the creditor Ultra vires – beyond the powers and therefore void Residual powers – powers that fall within federal jurisdiction because they are not expressly allocated to the provinces by the constitution Concurrent powers – overlapping powers of both levels of gov’t to th regulate the same activities Burden – the requirement that, unless a party can establish facts and law to prove its case, it will lose Substantive law – the rights and duties that each person has in society Procedural law – law that deals with the protection and enforcement of rights and duties Public law – law that regulates the conduct of government and the relations between government and private persons Private law – the rules governing relations between private persons or groups of persons Common law – the system o f law originating in England and covering most of the english speaking world. Based on the recorded reasons given by courts for their decisions Civil law – the system of law derived from roman law that developed I continental Europe and was greatly influenced by the cod napoleaon of 1804 Roman law – the system of law codified by the eastern roman emperor Justinian in the sixth century Stare decisis – to stand by a previous decision Subordinate legislation – law created by administrative agencies whose authority is granted by statute in order to carry out the purposes of the legislation Canon law – law created by the church, which had its own jurisdiction and courts in matters pertaining to itself, family law, and wills Law merchant – rules and trade practices developed by merchants in medieval trade guilds and administered by their own courts Writ – an ancient form required in order to take a grievance to court Courts of chancery – a system of courts under the king’s chancellor and vice- chancellors developed from the hearing of petitions to the king – courts of equity Equity – rules of law developed by the courts of equity Specific performance – an order by a court of equity to carry out a binding obligation Contempt of court – a finding by a court that a party has refused to obey it and will be punished Codify – set down and summarize in a statute the common law rules governing a particular area of activity Strict interpretation – courts apply the provisions of a statute only where the facts of the case are covered specifically by the statute Export houses / freight forwarders – specialist firms that make the arrangements or the shipment, insurance, and financing in export sales Offer – a tentative promise mad by one party, subject to a condition or containing a request to the other party Offeror – the person making the offer Offeree – the person to whom the offer is made Standard form contract – an offer presented in a printed document or notice, the terms of which cannot be changed by the offeree, but must be accepted as is or rejected Lapse – the termination of an offer when the offeree fails to accept it within a specified time, or if no time is specified, then within a reasonable time Option – a contract o keep an offer open for a specified time in return for a sum of money Exercise the option – to accept the offer contained in an option Inviting tenders – seeking offers form suppliers Standing offer – an offer that may be accepted as needed form time to time Jurisdiction – the province, state, or country whose laws apply to a particular situation Unilateral contract – a contract in which the offer is accepted by performing an act or series of acts required by the terms of the offer Subsidiary promise – an implied promise that the offeror will not revoke once the offeree begins performance in good faith and continues to perform Bilateral contract – a contract where offeror and offeree trade promises and both are bound to perform Promisor – a party who accepts an obligation to perform according to the terms of the contract Promise – a party who has the right to performance according to the terms of the contract Specific performance – an order requiring a defendant to do a specified act, usually to complete a transaction Injunction – a court order restraining a party from acting in a particular manner, such as committing a breach of contract Negative covenant - a promise not to do something Web-wrap agreement – a website document setting out contractual terms, the acceptance of which is indicated by clicking on the appropriate icon Gratuitous promise – a promise made without bargaining for or accepting anything in return moral cause – moral duty of promisor to perform his promise past consideration – a gratuitous benefit previously conferred upon a promisor injurious reliance – loss or harm suffered by a promise who, to his detriment, relied reasonably on a gratuitous promise estopped – prevented promissory estoppel or equitable estoppel – the court’s exercise of its equitable jurisdiction to estop a promisor from claiming that she was not bound by her gratuitous promise where reliance on the promise caused injury to the promisee quantum meruit – the amount a person merits to be paid for good or services provided to the person requesting them covenant – a serious promise covenantor – one who makes a covenant document under seal – a covenant recorded in a document containing a was seal, showing that the covenantor adopted the document as his act and deed deed – a document under seal, which today is usually a small, red, gummed wafer construing – interpreting strict or plain-meaning approach – an approach that restricts interpretation to the ordinary or dictionary meaning of a word liberal approach – an approach that looks to the intent of the parties and surrounding circumstances, and tend to minimize but does not ignore, the importance of the words actually used implied term – a term not expressly included by the parties in their agreement but which, as reasonable people, they would have included had they thought about it agreement to sell – a contract of sale in which the transfer of goods is deferred to some future time consignment – the transfer of goods from one business to another for the purpose of sale goods – personal property, other than money and choses in action chattels – tangible personal property reatail sales – sales of consumer goods by retail businesses in the ordinary course of their business, to private individuals S16A implied term as to title – it is implied that the seller has a right to sell the goods S 17A implied term as to description – it is implied that the goods soled by description will conform to the description S18B implied term of fitness – it is implied that the goods are of a type that is suitable for the purpose for which they are bought S18C implied term of merchantable quality – it is implied that the goods are in reasonable condition and free from defects that would make the unsuitable for use S17B implied term that goods correspond with sample – it is implied that, when a sample of the goods to be sold has been provided, the actual gods supplied will correspond to that sample in type and quality specific goods – goods in existence and agreed on as the subject matter of the sale unascertained goods – goods that have not been set aside and agree upon as the subject of a sale future goods – goods that have not yet been produced bill of landing – a document signed by a carrier acknowledging that specified goods have been delivered to it for shipment lien – a right of a person in possession of property to retain that property until payment incoterms – a set of standard contractual terms adopted by the international chamber of commerce exemption clause – a clause in a contract that exempts a party from liability for failing to perform some or all of its contractual obligations discharge of contract – cancel the obligation of a contract; make an agreement or contract null and inoperative tender of performance – an attempt by one part to perform according to the terms of the contract legal tender – bank of Canada notes and silver coins to the limit of $10 Accord and satisfaction – a compromise between contraction parties to substitute a new contractual obligation and release a party from the existing one Condition subsequent – an uncertain event that brings a promisor’s liability to an end if it happens Doctrine of frustration – the law excuses a party from performance when external causes have made performance radically different from that contemplated by rte parties Self-induced frustration – a party wilfully disables itself from performing a contract in order to claim that the contract has been frustrated Minor breach – a breach of a non-essential term of a contract or of an essential term in a minor respect Major breach – a breach of the whole co
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