Download Published November 9, 2005 Legal Meaning Is Not Everyday

Published November 9, 2005
Legal Meaning Is Not Everyday Meaning
Battle of the forms
Often when two companies deal with each other in the course of business, they will use standard form
contracts. For example, you issue (or receive) a purchase order and then you receive (or
issue) an invoice. Everything seems fine until you realize that the buyer and seller in this
transaction had issued forms with different terms. You are now engaged in “The Battle of The
Forms.” Instead of getting what you think you agreed to when you issued that PO or submitted
that invoice, you’re going to end up with a court-determined hybrid – a scenario where it is likely
that neither party is going to end up all that happy with the sales transaction.
In order to form a contract, one party must make an offer to a second party and the
second party must accept the original offer. Simple enough, as long as both parties agree to
identical terms. This is called the “mirror-image” rule, which states that if you are to accept an offer, you
must accept an offer exactly, without modifications; if you change the offer in any way, this is a counteroffer that kills the original offer. However, a mere request for information is not a counter-offer. It may be
possible to draft an enquiry such that is adds to the terms of the contract while keeping the original offer
alive.
But what happens if Seller accepts Buyer’s offer, but includes different or additional terms as part of his
acceptance?
The Uniform Commercial Code considers an offer accepted when the Seller sends a
written confirmation of his acceptance to the Buyer, or performs a “definite and seasonable
expression of acceptance,” such as delivering the goods that are the subject of the contract to the
Buyer. If the written confirmation contains additional or different terms than those included in
the original offer, it is still considered an acceptance unless Seller expressly conditions his
acceptance on Buyer’s assent to such additional or different terms.
“Additional” terms are terms that were not discussed in the original offer. They are being
added. “Different” terms are terms that were included in the original offer, but are being
changed.
Mailbox rule
A rule treating the sending of something as constituting a filing or as a basis for assuming receipt. In
contract law: a notice of acceptance of an offer sent to the offeror by reasonable means or as agreed by
the parties is effective and is not affected by any notice of revocation of the offer subsequently received
Last-shot principle
Failure to conclusively agree the terms of the Contract does not prevent the parties doing business and
many a project has been happily performed without anyone even being aware they may not have a
contract or they may have a different one to that they thought they had. The problems start when things
go wrong and its time to get the contract out of the drawer to which it had been consigned. In resolving
this difficulty the courts have often adopted what has been called the "last shot principle”. In other words,
the courts may look at the last offer which had been accepted without qualification and this would then
determine the conditions of contract.
Everyday “Legal” Jargon
International Business Transactions International sales of goods (part 1)
The United Nations Convention On Contracts For The International Sale Of Goods (1980) - CISG is a
self-executing treaty, which means the automatic adoption of the substantive provisions on sales without
any need for separate implementing of legislation. The main purpose of CISG is to avoid conflicts of law
problems, not to aggravate them.
Article 1 requires that a sale of goods be both ‘international’ and also bear a stated relation to a
Contracting State, that is States which ratified the Convention, before the contract can be governed by
the convention. CISG governs a contract of sale between parties unless the parties expressly exclude the
application of the Convention (Article 6). This ‘opt-out’ capacity is always available to the parties.
The place of business of each party must be in a different State, neither the location of the goods nor the
location of the negotiation. The place of business requires a permanent establishment, which is not a
warehouse or a seller’s agent office, and is that which has the closest relationship to the contract and its
performance. There is an unresolved issue concerning the relevant place of business when an office is
associated with the formation of the contract and another office deals with the party’s performance of its
contractual obligations.
The US version of the Convention rejects Article 1(1)(b): the Convention is not applicable when a contract
is between parties when only one State is a Contracting State, even though choice of law rules lead to the
application of the law of the Contracting State. A contract of sale between a US party and another party in
N, a non Contracting State, will not be governed by CISG. US law for domestic sales transactions –
Uniform Commercial Code (UCC) - will govern and is applicable in 49 states (all but Louisiana).
Choice of law clauses
A choice of law clause in a contract is one whereby the parties to that contract specify which law (i.e. the
law of which state or nation) will govern disputes arising under the contract. Some states will not honor
choice of law clauses as a matter of public policy, but most states now honor such clauses. A cause of
action brought in any such state (called the 'forum state') must be resolved in accordance with the law of
the state specified in the contract (the 'choice of law state').
This may lead to problems, as courts of the forum state may be unfamiliar with the law of the choice of
law state, and may apply the statute or case law of the choice of law incorrectly. Furthermore, disputes as
to the scope of a choice of law provision are likely to arise when a lawsuit between parties to the contract
is premised on a tort such as fraud or breach of fiduciary duty, instead of a breach of the contract itself.
Forum state judges faced with such a provision will employ various legal devices to escape from the strict
requirements of the contract. Such devices purportedly allow judges to rely on their own sense of a fair
outcome based on the facts of the case at hand, rather than strictly interpreting the terms of the contract,
and the law of the choice of law state. While such rulings might lead to a fairer outcome, critics contend
that they undermine the predictability of the legal system upon which contracts are based.
Thus, if parties decide to exclude the Convention, it should be expressly excluded by language which
states that it does not apply and also states which law of a particular jurisdiction shall govern the contract.
Automatic rejection of CISG should be resisted as such actions may be a disservice to the client’s
interests, or constitute malpractice, if based on poor understanding: a seller of goods may be in a much
more awkward position by the UCC and its ‘perfect tender’ and ‘rejection’ rules than it will be under the
rules of CISG.
Other scope issues
Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the
party who orders the goods undertakes to supply a substantial part of the materials necessary for such
manufacture or production.
CISG does not apply to contracts in which the preponderant part of the obligations of the party who
furnishes the goods consists in the supply of labor or other services.
This Convention excludes sales:
(a) of goods for consumers (to avoid conflict with mandatory consumer protection laws)
(b) by auction;
(c) on execution or otherwise by authority of law;
(d) of stocks, shares, investment securities, negotiable instruments or money (intangibles);
(e) of ships, vessels, hovercraft or aircraft (immovables, subject to registration and regulatory legislation);
(f) of electricity.
Timber to be cut and growing crops and railroad rolling stock, which are also immovables subject to
registration and regulatory legislation, are not expressly dealt with.
The Convention does not apply to the liability of the seller for death or personal injury caused by the
goods to any person, even though arising out of a sales transaction.
CISG governs only the formation of the contract of sale and the rights and obligations of the seller and the
buyer arising from such a contract. In particular, except as otherwise expressly provided in this
Convention, it is not concerned with the validity of the contract or of any of its provisions or of any usage;
the effect which the contract may have on the property in the goods sold. CISG has been held to preempt state law on promissory estoppel but not tort law.
There are at least issues arising out of fraud, duress, illegality and mistake. Whether it also includes
unconscionability, good faith, gross unfairness and the particular regulations of the form of disclaimers of
warranty is debated by the authorities.
The Convention does not define ‘contract of sale’ so that its application to some type of transactions is
problematic: consignments, in which the buyer may return any goods that cannot be sold, barter
transactions or countertrade, in which goods are exchanged for other goods and not for money,
conditional sales, in which the seller retains title to secures payment.
CISG does not apply to distribution and turnkey project contracts.
Contract formation
In common law one studies ‘offer, acceptance and consideration’, but those three elements of contract
formation are not present in other legal systems. Civil law emphasizes the agreement process and does
not include a consideration element. CISG has no requirement of consideration in its contract formation
provisions. CISG focuses on ‘offer’ and ‘acceptance’. A contract is concluded (binding) when an
acceptance of an offer becomes effective. There is no need for consideration and no formal requirements.
Statute of Frauds are not applicable unless one of the parties has a place of business in a Contracting
State which has declared a reservation under Article 96.
An offer must meet three requirements. It must:
1/
be a proposal for concluding a contract
2/
indicate an intention to be bound in case of acceptance, which distinguishes an offer from a
general sales catalogue or advertisement or a purchase inquiry.
3/
be sufficiently definite: description of the goods, the quantity, the price. This is more restrictive
than the UCC provision on open or flexible price contracts. There is no requirement that the offer specify
the goods and so clauses which allow later selection of assortment are presumably authorized.
One of the consequences of the abandonment of the consideration requirement is that there is no
foundation for the traditional analysis of the revocability of an unaccepted offer. Under CISG an offer is
revocable, unless it indicates that it is not revocable through the offeror’s statement (fixed time for
acceptance) and through reasonable reliance by the offeree.
Acceptance is either a statement or other conduct by an offeree indicating assent to an offer. Silence or
inactivity does not in itself amount to acceptance. An acceptance is not effective until it reaches the
offeror and the offeree must inquire if the acceptance is not acknowledged. The offeror’s power to revoke
under CISG is terminated upon dispatch of the acceptance (as in common law). However the offeree’s
power to withdraw the acceptance terminates only when the acceptance reaches the offeror. Notification
of the acceptance may reach the offeror indirectly through third parties, such as banks, carriers,…
The parties do not conclude a contract by exchanging forms (battle of the forms) and if one party reneges
on its obligation, before performance, it probably is not bound to perform. However the majority of
transactions involving exchanges of such forms are performed by the parties, despite the lack of contract
formed by the exchange of form. CISG may delay the formation of a contract through the ‘mirror-image’
rule and may use the last shot principle to make the offeree’s (generally the seller’s) terms control the
transaction.
Seller’s obligations
Under CISG, the seller is obligated to deliver the goods and nay related documents and to transfer the
property of the goods to the buyer. In addition the seller is obligated to deliver goods which conform tom
the contract as to quantity, quality and title.
CISG is not concerned with the effect of the contract on the property in the goods sold. Domestic law
determines whether the property passes from seller to buyer at the conclusion (formation) of the contract,
upon delivery, or at some other time; whether a certificate of title is required; and whether seller may
retain title as security for the purchase price or other debts.
Under CISG, delivery is a limited concept, relating to transfer of possession or control of the goods. It
does not attempt to consolidate all the incidents of sale: physical delivery, passing of risk, passing of title,
liability for the price, and ability to obtain a specific performance. There are separate provisions for each
of these concepts.
As to the obligations of the seller, the CISG distinguishes between the sale involving carriage of the
goods and other kinds of delivery. Commentaries and materials on the CISG refer to contracts of sale into
which F- or C-terms have been incorporated (shipment contracts), as well as to contracts for delivery
containing a D-clause (destination contracts) as examples for sales involving carriage of the goods. See
last week’s Grammatigalhas for a complete definition of these terms.
The Convention has no provision concerning seller’s duties in regard of export and import licenses and
taxes.
CISG eschews such doctrines as warranty, strict product liability as well as fault and negligence and
focuses on the simpler concept that the seller is obligated deliver the goods as described in the contract
(contractual description). The approach is comparable to the ‘warranty’ structure of the UCC.
Seller’s obligation under CISG is to deliver the goods free from any encumbrances on their title, but also
from any claim of a third party. This is known as transferring ‘quiet possession’ of the goods.
In addition to good title, the seller is obligated to deliver the goods free from patent, trademark and
copyright claims assertable under the law of the buyer’s place of business or the place where both parties
expect the goods to be used or resold.
A major unresolved issue is the extent to which local law regulating disclaimers will impact on the
international contracts governed by CISG (validity).
Remedies for seller’s breach
If seller breaches any of its obligations, buyer has three basic types of remedies: specific performance,
avoidance of the contract, and an action for damage. In addition, there is a potential self-help remedy
under Article 50: a price reduction in the same proportion as the value that the goods actually delivered
had at the time of the delivery bears to the value that conforming goods would have had at that time.
Specific performance is the preferred remedy at civil law; action for damages is preferred at common law.
At civil law, ‘fault’ is usually required for imposition of any recovery of damages, while the common law
aggrieved party need show only ‘nonconformity’. As to specific performance under CISG, the buyer may
specific performance and delivery of substitute goods only if the lack of conformity constitutes a
fundamental breach of contract, or the buyer may require the seller to remedy the lack of conformity by
repair (damages), unless this is unreasonable having regard to all the circumstances. Thus, any
preference for this remedy arise from buyer’s perspective, not from the court’s.
‘Fundamental breach of contract’ imposes a stricter standard on buyer than the ‘substantial impairment’
test of the UCC. CISG does not adopt the distinction between ‘acceptance of the goods’, rejection and
‘revocation of acceptance’. ‘Avoidance of the contract’ is similar to ‘cancellation of the contract’ at
common law.
It is difficult for a buyer to know how to react to any particular breach and whether ‘avoidance’
(cancellation) is permissible or not. Under CISG, buyer may notify seller that performance is due by a
stated new date (a reasonable length after the contract date for performance), and seller’s failure to
perform by the new date is a fundamental breach. This provision is available for non-delivery, but not for
delivery of non-conforming goods.
Even if a buyer seeks to ‘avoid the contract’ after a reasonable breach by seller, seller has the right to
cure any defect in its performance before avoidance is declared under CISG. The seller’s right to cure
survives the buyer’s declaration of ‘avoidance of the contract’.
For buyer to have any remedy for nonconforming goods tendered by seller, buyer must inspect the goods
in as short a time as practicable; notify the seller of the non conformity in specific terms within a
reasonable time; and permit seller to attempt to cure any nonconformity. The buyer must determine and
be able to prove that the result of non conformity is substantially to deprive him of what he was entitled to
expect under the contract.
After the contract has been properly avoided, the buyer can still get its money back but it must also return
the goods substantially in the condition which he received them.
In addition to rejection of the goods through ’avoidance’ (cancellation) of the contract, the aggrieved buyer
has one informal remedy, which appears to give it the power of self-help. Under CISG, the buyer who
receives nonconforming goods may reduce the price it pays to the seller. There is no requirement of prior
notice to seller. There is little guidance on how to determine the amount of the reduction. This provision is
familiar at civil and common law.
CISG provides the aggrieved buyer with an action for damages for ‘avoided’ (cancelled) contract.
Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit,
suffered by the other party as a consequence of the breach. There is no requirement that buyer prove
seller was at fault as a prerequisite to damage recovery. Nor is there a requirement that buyer prove what
caused the defect, only that the goods were defective. Both direct and consequential damages are
recoverable; and expectancy, reliance and restitutionary interests are all protected.
----Next week, we will continue with the buyer’s obligations, risk of loss, and remedies for buyer’s breach.
As If Your Life Depended On It… or How to get to Carnegie Hall? - Practice, practice
Group (Plural Vs. Singular)
When the group is being considered as a whole, it can be treated as a single entity: “the group was ready
to go on stage.” But when the individuality of its members is being emphasized, “group” is plural: “the
group were in disagreement about where to go for dinner.”
Help The Problem / Help Solve The Problem
People say they want to help the problem of poverty when what they really mean is that they want to help
solve the problem of poverty. Poverty flourishes without any extra help, thank you. I guess I know what a
“suicide help line” is, but I’d rather it were a “suicide prevention help line.” I suppose it’s too late to ask
people to rename alcoholism support groups as sobriety support groups, but it’s a shoddy use of
language.
Historic / Historical
The meaning of “historic” has been narrowed down to “famous in history.” One should not call a building,
site, district, or event “historical.” Sites may be of historical interest if historians are interested in them, but
not just because they are old. In America “historic” is grossly overused as a synonym for “older than my
father’s day.”
The “politically correct” grammarian
===================================
Published November 16, 2005
Legal Meaning Is Not Everyday Meaning
Hardship

In general English: Something that obstructs progress and requires great effort to overcome;
extreme privation; suffering.

In legal English: All legal systems have to determine when a contracting party should be excused
from performance of its obligations because of supervening circumstances. Some systems only
accept a narrow range of excuses; others are more generous. There appear to be considerable
difficulties.
CISG drafters were opposed to allowing commercial or economic hardship as an excuse for nonperformance and that this was the reason for adopting the requirement of an impediment as a
precondition for relief in place of the more liberal ULIS test of a change of circumstances. The test
there is whether, having regard to the parties' intention at the time of the conclusion of the
contract, the non-performing party was not bound to take into account or to avoid or overcome
the circumstances creating the hardship. No doubt "impediment" is capable of many meanings.
Nevertheless, it seems fairly obvious that a tribunal would first have to examine the UNCITRAL
debates to see what range of impediments the drafters had in mind before accepting the
relevance of the UNIDROIT hardship provisions as an interpretational aid.
If the tribunal finds an impediment sufficient to excuse one or both of the parties from further
performance of their contractual obligations, it will have to address the consequences of the
frustration of the contract. CISG does not spell out all the consequences and so, once again, the
question will arise to what extent the Principles can be used as gap fillers.
Gross disparity
A party may avoid the contract or an individual term of it if, at the time of the conclusion of the contract,
the contract or term unjustifiably gave the other party an excessive advantage.
Among other factors, one should consider: (a) the fact that the other party has taken unfair advantage of
the first party's dependence, economic distress or urgent needs, or of its improvidence, ignorance,
inexperience or lack of bargaining skill, and (b) the nature and purpose of the contract.
Uniform Commercial Code (U.C.C.)
Body of laws developed by a national commission and the American Law Institute to help regularize the
law of sales. It has been adopted in part by every state. The code governs sales and leasing, bank
deposits and collections, commercial paper and letters of credit, bulk transfers and warehouse receipts,
investment securities and secured transactions, and various other commercial transactions.
The overriding philosophy of the Uniform Commercial Code is to allow people to make the contracts they
want, but to fill in any missing provisions where the agreements they make are silent. The law also seeks
to impose uniformity and streamlining of routine transactions like the processing of checks, notes, and
other routine commercial paper. The law frequently distinguishes between merchants, who customarily
deal in a commodity and are presumed to know well the business they are in; and consumers, who are
not.
It also seeks to discourage the use of legal formalities in making business contracts, in order to allow
business to move forward without the intervention of lawyers or the preparation of elaborate documents.
This last is perhaps the most questionable part of its underlying philosophy; it has been argued that legal
formalities discourage litigation by requiring some kind of ritual that provides a clear dividing line that tells
people when they have made a final deal they could be sued over.
Everyday “Legal” Jargon
International Business Transactions: International sales of goods (part 2)
Buyer’s obligations
Buyer has two primary obligations in a sale contract under CISG: to pay the price and to take delivery of
the goods. The former duty is the more important of the two. In addition, there are several derivative
preliminary duties called ‘enabling steps’.
Unless the sale contract expressly grants credit to buyer, the sale is a cash sale, and payment and
delivery are concurrent conditions. Payment is due when seller places the goods, or their documents of
title, at buyer’s disposal according to the contract. If the sale contract involves carriage of the goods,
seller may ship the goods under negotiable documents of title and demand payment against those
documents, even though no particular method of payment was actually agreed upon by the parties. In
these circumstances, buyer still has a right of inspection before payment. If, however, buyer expressly
agreed to pay against documents (CFR or CIF term), the buyer has agreed to pay upon tender of the
documents, regardless whether the goods have yet arrived and without inspection of the goods.
If buyer is to pay against ‘handling over’ of the documents, or handing over the goods, the place of
‘handing over’ is the place of payment. Otherwise, the place of seller’s business is the place of payment,
unless contract provides otherwise. Such a provision requires buyer to ‘export’ the funds to seller, which
is a critical issue with a soft currency, or with other restrictions on transfer of funds. In addition, buyer has
an obligation to cooperate and take all necessary steps to enable payment to be made, including
whatever formalities may be imposed by buyer’s country to obtain administrative authorization to make a
payment abroad. Failure to take such steps may create a breach by buyer even before payment is due.
The buyer’s second obligation, to take delivery, also poses duties of cooperation. It includes a duty to
make the expected preparations to permit seller to make delivery, and may include such acts as providing
for containers, transportation, unloading and import licenses.
The basic rule is that buyer bears the risk of loss to the goods during transportation by a carrier, unless
the contract provides otherwise. The contract will often contain a term, which expressly allocates the risk
of loss, such as FOB or CIF, and such terms supersede the CISG provisions. If there is no such delivery
term specified in the contract, under CISG the risk in s shipment contract passes to buyer when the
goods are ‘handed over’ by the seller to the first carrier. They need not be on board the means of
transportation, or even pass a ship’s rail – any receipt by a carrier will do. However if seller uses its own
vehicle to transport the goods, seller bears the risk until the goods are handed over to an independent
carrier, or to the buyer.
In most situations, title and risk are treated separately. Thus, manipulation of title through the use of
documents of title, such as negotiable bills of lading, is irrelevant and has no effect on the point of transfer
of risk of loss. If the goods are already in transit when sold, the risk passes when the contract is
concluded.
Breach and risk are also treated separately. If seller is in breach of contract when the goods are shipped,
these basic risk of loss rules are not changed (contrary to UCC), and whether it is a ‘fundamental breach’
or not is irrelevant to determine risk of loss allocation. However, if seller does commit a fundamental
breach in shipment contract, further damage to the goods during transit will not deprive buyer of its right
to avoid the contract (cancel) under CISG. Likewise, a non-fundamental breach in shipment contract, plus
damage in transit will not create a right for buyer to avoid the contract.
Remedies for buyer’s breach
The preferred remedy for an aggrieved seller, if buyer should breach, is a cause for action for the price,
which is seller’s functional equivalent of an action for specific performance. A cause of action for
damages, but not the price, is distinctly secondary. In addition, seller may wish to reclaim the goods if
they are delivered or obtain some protection for them if the contract is avoided and they are rejected.
As to seller’s recovery of the price, seller has an unqualified right to require buyer to pay the price, but no
CISG article expressly states that the seller has a cause of action for the payment of the price. Of course,
there are implicit conditions on this right, first, that the seller has itself performed to the extent required by
the terms of the contract, and, second, that payment of the price is due. However, if seller has an action
for the price, it may be an action for specific performance under Article 28, and the seller must meet the
requirements (UCC and CISG) before a US court would order buyer to pay the price rather than the
damages. Note: an action for price does not require the entry of a judgment for specific performance.
If an unpaid seller is unable to obtain the price, can he get his goods back from the defaulting buyer after
delivery by avoiding the contract and seeking to reclaim them? Such reclamation is difficult at common
law, but CISG gives the seller the power to declare the contract ‘avoided’, does not distinguish between
pre- and post-delivery situation, and requires restitution of whatever the first party has supplied, after
avoidance. This situation is available only so long as third parties (buyer’s creditors and trustees in
bankruptcy) are not involved, for CISG does not affect title to the goods and third party rights, and does
not require a court to order specific performance which it would not order under its own law.
As to damages, CISG provide the unpaid seller (as well as an aggrieved buyer) with an action for
damages and the general principles are the same as in the discussion of buyer’s remedies for seller’s
breach (measures of unpaid seller’s damages are the difference between either contract and resale price
or contract and market price). CISG includes recovery, and award of lost profits damages, as protection to
the lost volume seller, measuring them by subtracting from the contract price only those variable costs
saved by the termination of the sale.
A buyer who reject goods after they have been received must take reasonable steps to preserve them,
which may include depositing the goods in a warehouse at seller’s expense. If seller has no agent in
buyer’s location, a buyer who rejects goods, which have been placed at his disposal at their destination,
must take possession of them on behalf of the seller if this can be done without payment of the price
(through paying for a negotiable bill of lading) and without unreasonable inconvenience or expense.
In transactions to which CISG is applicable, the courts usually apply the rules of CISG. However, where
CISG is silent or ambiguous, courts are instructed by CISG to consult the general principles of
international commercial law and the Unidroit Principles are one source of such general principles.
The Unidroit Principles are more comprehensive than CISG. For example, they include provisions on how
contracts may be formed, on confirmation of documents, on contract with open term clauses, on
negotiation in bad faith, on the duty of confidentiality, on merger clauses, on use of standard forms, and
on the battle of forms. There are also new concepts proposed, such as ‘gross disparity’ as an element of
the analysis of validity, and ‘hardship’ and ‘change of circumstances’ as an element of excuse of
performance. There are provisions on payment, not only by ‘cheque’, but also by funds transfers and
other methods and on the currency to be paid in absence of specification.
As If Your Life Depended On It… or How to get to Carnegie Hall? - Practice, practice
Time Period / Time, Period
The only kinds of periods meant by people who use this phrase are periods of time, so it’s a redundancy.
Simply say “time” or “period.”
Today’s Modern Society
People seeking to be up-to-the-minute often indulge in such redundancies as “in today’s modern society”
or “in the modern society of today.” This is empty arm-waving which says nothing more than “now” or
“today.” A reasonable substitute is “contemporary society.” Such phrases are usually indulged in by
people with a weak grasp of history to substitute for such more precise expressions as “for the past five
years” or “this month.”
Tenant / Tenet
These two words come from the same Latin root, tenere, meaning “to hold” but they have very different
meanings. “Tenet” is the rarer of the two, meaning a belief that a person holds: “Avoiding pork is a tenet
of the Muslim faith.” In contrast, the person leasing an apartment from you is your tenant. (She holds the
lease.)
The “politically correct” grammarian
===================================
Published November 23, 2005
Legal Meaning Is Not Everyday Meaning
Relief

In general English: the act or an instance of helping: abetment, aid, assist, assistance, hand,
help, succor, support; freedom, especially from pain: alleviation, assuagement, ease, mitigation,
palliation; assistance, especially money, food, and other necessities, given to the needy or
dispossessed: aid, dole, handout, public assistance, welfare; a person or persons taking over the
duties of another: replacement.

In legal English: redress, assistance, or protection given by law to a complainant, esp. from a
court, including such remedies as specific performance, injunction, rescission of a contract, etc.
The term generally does not comprehend an award of money damages. Affirmative relief is often
used to indicate that the gist of relief is protection from future harm rather than compensation for
past injury.
Redress

In general English: relief from distress

In legal English: a means of obtaining a remedy or relief: damage or equitable relief. Recovery,
restitution.
Remedy

In general English: something, such as medicine or therapy, that relieves pain, cures disease, or
corrects a disorder; something that corrects an evil, fault, or error.

In legal English: the means to enforce a right or to prevent or obtain redress for a wrong The relief
(as damages, restitution, specific performance, or an injunction) that may be given or ordered by
a court or other tribunal for a wrong (if the contract is null and void, the remedy is to rescind and
to put the parties in the position in which they were prior to the attempted agreement). The most
common remedy at law consists of money damages.
Extraordinary remedy: a remedy not usually available in an action at law or in equity, and
ordinarily not employed unless the evidence clearly indicates that such a remedy is necessary to
preserve the rights of the party; appointment of a receiver, a decree of specific performance, a
writ of prohibition.
Provisional remedy: a proceeding incidental to and in connection with a regular action, invoked
while the primary action is pending in order to assure that the claimant’s rights will be preserved,
or he will not suffer irreparable injury: attachment, temporary restraining orders, preliminary
injunctions, appointment of receivers, arrest and bail.
Process

In general English: a series of actions, changes, or functions bringing about a result: the process
of digestion; the process of obtaining a driver's license; a series of operations performed in the
making or treatment of a product: a manufacturing process; leather dyed during the tanning
process; progress; passage: the process of time; events now in process.

In legal English: a formal writing (writ) issued by authorities of law; the entire course of a judicial
proceeding. A means (as a summons) used to compel a defendant to appear in court; broadly a
means by which a court acquires or exercises jurisdiction over a person or property.
Abuse of process: employment of the criminal or civil process for a use other than one which is
intended by law.
Due process of law: The 5th Amendment of the US constitution provides that “nor shall any
person be deprived of life, liberty or property, without due process of law.” This provision ai
applicable only to the actions of the Federal Government. The phrase was made applicable to the
states with the adoption of the 14th Amendment. A course of formal proceedings (as judicial
proceedings) carried out regularly, fairly, and in accordance with established rules and principles
called also procedural due process. A requirement that laws and regulations must be related to a
legitimate government interest (as crime prevention) and may not contain provisions that result in
the unfair or arbitrary treatment of an individual called also substantive due process.
Everyday “Legal” Jargon
Civil Procedure
Civil procedure is the written set of rules that sets out the process that courts will follow when hearing
cases of a civil nature (a "civil action"). These rules explain how a lawsuit must be commenced, what kind
of service of process is required, the types of pleadings, motions, and orders allowed in civil cases, the
timing and manner of depositions and discovery, the conduct of trials, the process for judgment, various
available remedies, and how the courts and clerks must function.
The U.S. federal court system adopted the Federal Rules of Civil Procedure on September 16, 1938
before which time there were varying rules that governed different types of civil cases such as cases at
law or in equity or in admiralty. There are exceptions to the types of cases that these rules now control
but they are few in number and somewhat esoteric (e.g., "prize proceedings in admiralty"). Most states
have also adopted the Federal Rules (with various minor modifications) to govern procedures in their
state court systems.
California is the odd exception in that its homegrown civil procedure system is enshrined in statutory law
(the Code of Civil Procedure), not in rules promulgated by the state supreme court or the state bar
association.
The United Kingdom civil courts adopted an overwhelmingly unified body of rules as a result of the Woolf
Reforms on 26 April 1999. These are collectively known as the Civil Procedure Rules 1998 and in all but
some very confined areas replaced the older Rules of the Supreme Court (applicable to the High Court of
Justice) and the County Court Rules.
Alternative dispute resolution proceedings and administrative law proceedings both tend to have relatively
simple rules of procedure, in comparison to the highly formalized procedures seen in the federal and state
courts.
If you don’t know procedure, nothing else matters. You can have the most airtight contract claim in the
world; if you don’t know how to file a complaint, you are out of luck. In torts, someone runs over you with
a tractor while a TV news crew films it; if you don’t know how to take discovery, you will never get the
videotape. Everything comes down to procedure.
Civil litigation involves disputes between and among parties over virtually any matter that is not governed
by an administrative body. Civil litigation is also to be distinguished from criminal litigation regarding
applicable procedure rules and constitutional protections.
Importance of jurisdiction and venue
Issues relating to jurisdiction and venue must always be considered before instituting a lawsuit. A
defendant may challenge the plaintiff’s choice of jurisdiction and venue. In addition, the court sua sponte
(on its own motion) may challenge its jurisdiction to hear a case.
Jurisdiction refers to the type of court which will have jurisdiction the review the action at hand. Is there
jurisdiction in state and federal courts, or both? Venue refers to the place in which a case will be brought.
“Forum shopping”: parties looking for a jurisdiction with law that’s more favorable or a judge more likely to
rule for them. How does it work? My daughter Emily is just 6 years old. She wants soda. So, what does
she do? “Mommy can I have some Sprite?” My wife says ‘No”. So what does Emily do? She comes to
me! A different judge! “Daddy, can I have some sprite?” “Sure!” What just happened? My daughter is a
party who has gone from a less favorable forum to a more favorable one to secure the ruling she wanted!
That’s forum shopping.
Issues of timing
The time by which certain actions and events must take place are of extreme importance in civil litigation.
For instance, certain objections not raised by a particular time in the proceeding are deemed to have
been waived. Dates established by court order, of course, must also be adhered to.
Civil litigation process
The following chart describes the typical litigation process in US federal court.
> Complaint
Filed by plaintiff to commence lawsuit
Identifies parties, establish jurisdiction and venue
Identifies cause(s) of action
Request specific relief
Modern notice pleading does not require that counsel set forth elaborate facts or grounds for relief.
However you must investigate to ensure that the lawsuit is not frivolous.
> Summons
Order by court clerk made upon the filing of the complaint
Requires response by the defendant
> Service
Complaint and summons must be delivered to the other party or parties to a lawsuit
> Answer
Filed by defendant in response to complaint
Responds in order to each allegation in the complaint
Must include all affirmative defenses (i.e. statute of limitations, lack of personal jurisdiction)
Mau include counterclaim and/or cross-claim
The defendant may file for a motion to dismiss in lieu of a traditional answer
> Reply
Reply is required if the answer contains a counterclaim
Reply may also be made by plaintiff with permission of the court
> Counterclaim
Claim by any party against an opposing party (the defendant against the plaintiff)
May be ‘compulsory’ (arising out of same transaction or occurrence – must be made or waived) or
‘permissive’ (may be made at some later time)
> Cross-claim
Claim by one party against a co-party (a defendant against another defendant) arising out of the same
transaction or subject matter of tha original action or any counterclaim thereto
> Intervention
Process by which interested person not named in the lawsuit seeks court order allowing its participation
Normally, intervenors may not introduce into the proceedings issues not raised by the principal parties
> Motion to dismiss
Several grounds upon which dismissal may be had:
Lack of subject-matter jurisdiction (*)
Lack of personal jurisdiction
Improper venue
Insufficiency of process
Insufficiency of service of process
Failure to state a claim upon which relief can be granted (*)
Failure to join a necessary party
(*) most important / widely used
> Discovery
Fact-gathering process
Engaged in by all parties
Several forms:
Written interrogatories
Request for production of documents and things
Request for admission
Oral deposition
Medical examination (physical or mental) upon motion and showing of good cause
Automatic disclosure required of certain basic documents pertaining to the case; no request need be
made
Discovery may be had of a party’s expert witness if those witness are expected to testify at trial
> Motion for summary judgment
Motion to dismiss case for alleged lack of genuine facts sufficient for jury to find in favor of non-moving
party; the facts are not in dispute and there is no reason to waste the resources of the jury
Theory: no reasonable jury could find for opposing (non-moving) party. Facts are so clear that allowing
the judge to usurp the fact-finding role of the jury in not inconsistent with the jury’s function
May be filed by either party
May be full, relating to the entire case, or partial
I moving party wins complete motion for summary judgment, the case is over in favor of the moving party
> Other pre-trial motions
May relate to discovery, admissibility of evidence, etc
Often called a motion in limine ( to avoid exposure of highly prejudicial evidence to the jury)
Generally, any party can file a motion at any time to seek a court order
Parties are expected to attempt to resolve their differences before seeking court intervention
Parties seeking relief file a motion; parties answering the motion file a response or an answer
> Settlement / Status conferences
Efforts at informal dispute resolution
May be ordered / scheduled by the court
Judge may be present
Discovery may help the parties analyze the relative strength of their cases
> Voir Dire
Questioning / selection of prospective jurors (counsel or judge)
> Trial
Presentation of evidence to finder of fact
Includes testimony, documentary evidence, illustrative evidence
Evidence presented first by plaintiff, then by defendant, with a rebuttal by plaintiff
Witnesses subject to direct examination by party sponsoring witness; then subject to cross examination
by opposing party
Framed on either side by counsels’ opening and closing arguments
Most trial are heard by jury as fact-finder; sometimes if parties agree, the judge will be the finder of fact.
This is called a ‘bench trial’
> Judgment as a Matter of Law
Judgment granted to moving party on the grounds that there in no legally sufficient evidence for
reasonable jury to find for the non-moving party
Motion may be made by either party at the end of the trial for the court to order a verdict in its favor, and
again when the verdict is rendered
Very rarely granted
Results in a finding that the jury verdict lacked sufficient legal basis
If successful, moving party wins case
Replaces in part Judgment Notwithstanding the Verdict
> Jury charge
Instructions by court to guide the jury deliberations
Judge presents the law, which the jury is to apply to the facts
In advance of jury charge, parties submit proposed instructions; may be contentious process
> Verdict
Jury decision based on its application of law as charged to facts as presented at trial, as interpreted by
jury
> Appeals
Aggrieved party may seek appeal to higher level court
Appeals based on alleged error of law – appeals courts will not review factual issues
Statutes and court rules govern the taking of appeals
As If Your Life Depended On It… or How to get to Carnegie Hall? - Practice, practice
Drug / Dragged
“Well, look what the cat drug in!” Unless you are trying to render dialectical speech to convey a sense of
down-home rusticity, use “dragged” as the past tense of “drag.”
Rebut / Refute
When you rebut someone’s argument you argue against it. To refute someone’s argument is to prove it
incorrect. Unless you are certain you have achieved success, use “rebut.”
Prodigy / Progeny / Protégé
Your progeny are your kids, though it would be pretty pretentious to refer to them as such. If your child is
a brilliantly outstanding person he or she may be a child prodigy. In fact, anything amazingly admirable
can be a prodigy. But a person that you take under your wing in order to help promote his or her career is
your protégé.
The “politically correct” grammarian
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Published November 30, 2005 <<< Cancelled for technical reasons >>>
Legal Meaning Is Not Everyday Meaning
Everyday “Legal” Jargon
As If Your Life Depended On It… or How to get to Carnegie Hall? - Practice, practice
The “politically correct” grammarian
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