8/3/2019 Legal Terms Define

http://slidepdf.com/reader/full/legal-terms-define 1/6

DIRECT VS. COLLATERAL ATTACK ON A JUDGMENTCASE LAW FROM HOUSTON

COLLATERAL ATTACK 

When a separate and new lawsuit is filed to challenge some aspect of anearlier and separate case, it is called a collateral attack on the earlier case. This

is different than an appeal, which is a challenge to some aspect of a decision

made in the same case.

Example: Sam obtains a divorce in Nevada without properly notifying his

wife, Laurie. Laurie files a later lawsuit seeking to set aside the divorce and

start the divorce proceedings over. Laurie's case is a collateral attack on the

divorce.

The law wants judgments to be final whenever possible, and thus collateral

attacks are discouraged. Many are filed, but usually only succeed when anobvious injustice or unconstitutional treatment occurred in the earlier case.

n. a legal action to challenge a ruling in another case. Forexample, Joe Parenti has been ordered to pay child support ina divorce case, but he then files another lawsuit trying toprove a claim that he is not the father of the child. A "directattack" would have been to raise the issue of paternity in thedivorce action

n. a legal action to challenge a ruling in another case. Forexample, Joe Parenti has been ordered to pay child support in

a divorce case, but he then files another lawsuit trying toprove a claim that he is not the father of the child. A "directattack" would have been to raise the issue of parenthood inthe divorce action.

RES JUDICATA: (rayz judy-cot-ah) n. Latin for "the thing has

 been judged," meaning the issue before the court has already beendecided by another court, between the same parties. Therefore,

the court will dismiss the case before it as being useless.

Example: an Ohio court determines that John is the father of 

Betty's child. John cannot raise the issue again in another state.

Sometimes called res adjudicata.

DAMNUM ABSQUE INJURIAA loss or damage without injury.

There are cases when the act of one man may cause a damage or loss to

another, but for which the latter has no remedy. He is then said to have

received damnum absque injuria. For example, if a man should set up a school

in the neighborhood of another school, and by that means, deprive the former 

of its patronage; or if a man should build a mill along side of another, and

consequently reduce its business.

Another instance may be given of the case where a man excavating for a

foundation with proper care and diligence, injures the adjoining house due to

the unsuitable materials used in such house; here the injury is damnum absqueinjuria.

When a man slanders another by publishing the truth, the person slandered is

said to have sustained loss without injury.

Damnum absque injuria literally means damage without wrongful act. It

means that a loss or harm incurred from something other than a wrongful act

does not warrant a legal remedy. For example, a person may harm another in

due exercise of his right. However, the injured person cannot sue the person

who exercised his rights.

2. There are cases when the act of one man may cause a damage or loss to

another, and for which the latter has no remedy; he is then said to have

received damnum absque injuria; as, for example, if a man should set up a

school in the neighborhood of another school, and, by that means, deprive the

former of its patronage; or if a man should build a mill along side of another,

and consequently reduce his custom

 

3. Another instance may be given of the case where a man using proper 

care and diligence, while excavating for a foundation, injures the adjoining

8/3/2019 Legal Terms Define

http://slidepdf.com/reader/full/legal-terms-define 2/6

house, owing to the unsuitable materials used in such house; here the injury is

damnum absque injuria.

4. When a man slanders another by publishing the truth, the person

slandered is said to have sustained loss without injury.

Ab initio is a Latin term meaning "from the beginning". For example, if 

something is said to be void ab initio, the thing was never created or valid to

 begin with. The term is often used in connection with contracts, estates, and

marriages.

Abatement generally refers to a lessening or reduction of something. It may

refer to the removal of a problem which is contrary to public or private policy,

or endangers others. For example, a municipality may serve a notice for 

abatement of nuisance on a landowner for weeds that might catch fire on an

otherwise empty lot. Abatement may mean an equal reduction of recovery of debts by all creditors when there are insufficient funds or assets to satisfy the

full amount. An abatement of a legacy is an equal reduction of benefits to

  beneficiaries (heirs) when an estate is not large enough to pay each

 beneficiary in full. An abatement of taxes is a rebate or reduction of taxes

  previously assessed and/or paid. In an eviction case where a landlord is

seeking unpaid rent, a tenant may raise the defense that he/she is entitled to

rent abatement due to uninhabitable living conditions.

AB INTESTATO is a Latin term which means “"by intestacy." It refers to

laws governing the succession of property after its previous owner dies

without a valid will. The term intestate when used in regard to a person, itmeans not having made a legally valid will prior to death; when used in regard

to property, it means not effectively disposed of by a legally valid will.

An example of a New Jersey Supreme court case using the term Ab Intestato

follows:

“Regulating succession or inheritance ab intestato is a legislative province.

The Legislature has plenary power over the devolution of the title and the

distribution of the intestate's property; and yet, presumably, the rules of 

descent and distribution are in accord with the intestate's intention, for 

HN2the statutory intestate disposition may be defeated by the will of the

owner of the property, if he possesses testamentary capacity; intestacy

signifies the adoption of the legislative disposition, a conclusive presumption,

although necessarily fictional in some cases: e.g., the making of a will that

cannot be probated for defect of execution as laid down in the statute; or theinvalidity or unenforceability of provisions intended to dispose of the

 property.

ACT OF CONGRESS  refers to statutes or legislation that are formally

enacted by Congress through the legislative powers granted to Congress by

the Constitution.

To become an Act of Congress, first a bill or a resolution has to be passed by a

majority of members of both the House of Representatives and the Senate.

The bill or resolution is sent to the chamber through a committee. The bill is

sent back to the same committee after the bill is passed by both the chambers.

The committee then sent the bill or resolution to get the president's assent. The bill or resolution becomes an Act of Congress:

1. if the President signs the bills; or 

2. if the President fails to return the bill or resolution with in ten days.

AD LITEM is a Latin phrase meaning “for the suit” or “for the purpose of 

legal action.”

Usually it refers to a party appointed by a Court to act on behalf of another 

 party who is incapable of representing himself or herself. For example, a

guardian "ad litem" is a person appointed by the court to protect the interests

of a minor or legally incompetent person in a lawsuit.

The court may appoint either a lawyer or a court appointed special advocate

volunteer to serve as guardian ad litem in juvenile matters, family court

matters, probate matters, and domestic relations matters.

In property litigation, it can refer to a person who is appointed by the court to

act on behalf of the estate in the proceedings before court when the estate's

 proper representatives are unable or unwilling to act.

IPSO FACTO - By that very fact.

8/3/2019 Legal Terms Define

http://slidepdf.com/reader/full/legal-terms-define 3/6

Inter alia - Amongst other things.

Injuria non excusat injuriam - A wrong does not

excuse a wrong.

In personam - Against the person.

in pari delicto adv. (in pah-ree dee-lick-toe) Latin for "in equal

fault," which means that two (or more) people are all at fault or are allguilty of a crime. In contract law, if the fault is more or less equal then

neither party can claim breach of the contract by the other; in anaccident, neither can collect damages, unless the fault is more on one

than the other under the rule of "comparative negligence"; in defenseof a criminal charge, one defendant will have a difficult time blaming

the other for inducing him or her into the criminal acts if the proof is

that both were involved.Legal  principle that if two parties in a dispute are equally at fault thenthe party in  possession of the contested property gets to retain it (courts will not interfere with the status quo). It implies that if a party whoseaction  (or a failure to act

) precipitates breach of a contract, or whichfails to take appropriate action (or takes inappropriate action) to limitor  recoup a loss

, may not claim damages

Conceptually, the in pari delicto defense will apply "where the fault of the parties is mutual, simultaneous and relatively equal, and where the

 plaintiff is an active, essential, and knowing participant in the unlawfulactivity.

in pari delicto potior est conditio possidentis -

When the parties are equally in the wrong the condition of the

 possessor is better.

A vinculo matrimonii - From the bounds of matrimony

Ad acta - To archives. Not actual any more

Amicus verus est rara avis - A true friend is a rare bird

Amor caecus est - Love is blind

Amor est vitae essentia - Love is the essence of life.

Res judicata - Literally, it means a matter adjudged, a thing

  judicially acted upon or decided; a thing or matter settled by  judgment. In res judicata, the judgment in the first action isconsidered conclusive as to every matter offered and received

therein, as to any other admissible matter which might have beenoffered for that purpose, and all other matters that could have beenadjudged therein. Res judicata is an absolute bar to a subsequentaction for the same cause; and its requisites are: (a) the former 

 judgment or order must be final; (b) the judgment or order must be one on the merits; (c) it must have been rendered by a courthaving jurisdiction over the subject matter and parties; (d) theremust be between the first and second actions, identity of parties,

of subject matter and of causes of action.[1] 

Delegatus Non Potest Delegare  is a Latin maxim which

means that a delegated authority cannot further delegate. This is one of 

the fundamental principles of administrative law. When a higher 

authority delegates an authority or decision-making power to a person

or institution, that person or institution cannot delegate such authority

to another unless there is explicit authorization for it in the original

delegation.

An often‐repeated proposition of Anglo‐American law is thatdelegated authority cannot be redelegated. In the case of the SupremeCourt, the doctrine of nondelegation purportedly derives from the

Constitution, although admittedly without any basis in theconstitutional text. The usual argument for the invalidity of delegation

of powers turns on the concept of  separation of powers, that is, theforbidding of certain general powers to one or another of the general

 branches of government. Actually, there are few specific constitutional  provisions for the separation of powers. There are provisions for checks and balances among the three branches of government,

8/3/2019 Legal Terms Define

http://slidepdf.com/reader/full/legal-terms-define 4/6

however. Separation of powers would create monopolies of certain  powers in particular branches; checks and balances forbids such

monopolies and, in fact, generally requires the joinder of two branches before governmental action is validated. Thus, the legislature cannot

enact a law without presidential approval or, if the president

disapproves, a two‐thirds overriding vote of each house; the judicial branch cannot pass judgment except within legislatively defined limitsspecified by statute; no one may expend moneys except thoseappropriated by the legislature and according to the terms specified bythe legislature.

Delegation of Powers refers to the practice of empowering one

 part of government to act in the name of another. The extent to whichany branch of government may delegate power, however, remains in

question. For example, the courts have often said that Congress as arecipient of delegated power from the people through the Constitution

may not further delegate its legislative powers to other agencies of government. At the same time they have admitted that Congress can

adopt only a general policy, which must be implemented by others inunanticipated circumstances and contexts. The U.S. Supreme Court

stated in 1940 that "delegation by Congress has long been recognizedas necessary in order that the exertion of legislative power does not

 become a futility," and the Court has voided only three delegations of   power by Congress:   Panama Refining Company v. Ryan (1935),Schechter Poultry Company v. United States (1935), Carter v. Carter Coal Company (1936).

Three types of delegation can be identified. The first leaves to a person or agency the task of filling in the details and elaborating onthe implementation of general policy. This, the most common type of 

delegation, is exemplified in the Interstate Commerce Commission  being directed to ensure that railroad rates are "reasonable." A second

type is contingency delegation. In this type, legislation is passed that will go into effect or be suspended when the executive branch

determines that a specified situation exists. Tariff laws, for example,usually give the president power to change duties if other countriesmake specified changes in their duties. The third type of delegation of 

  power occurs in the field of foreign affairs, where courts haveapproved broader delegations of power to the president than indomestic affairs because of the unique role he plays in this area.

Limits do exist on the ability of Congress to delegate legislative power 

to administrative agencies. Congress must define the subject to beregulated and must provide some standard to guide its agent's actions,even if that standard is no more exact than "just and reasonable." The

delegation must be to public officials, not to private groups or individuals. Penal sanctions for violation of administrative orders can

 be provided only by Congress.

Strict judicial adherence to the nondelegation doctrine would havemade virtually impossible congressional exercise of the powers

conferred on the legislative branch by the Constitution. Judicialrecognition of this fact contributed to the great growth of 

administrative agencies and independent regulatory commissions in the

twentieth century

Definition of 'Ultra Vires Acts'

Any act that lies beyond the authority of a corporation to perform.

Ultra Vires acts fall outside the powers that are specifically listed in acorporate charter or state law. They can also be any action that is

spe

cifically prohibited by the corporate charter.

Ultra Vires acts can also be defined as any excessive use of corporate power that has been granted. These acts cannot be legally defended in

court. They will, in fact, leave the corporation vulnerable to lawsuits by employees or other parties.

Ultra vires is a Latin term meaning "beyond powers". The term isusually used to refer to acts taken by a corporation or officers of acorporation that are taken outside of the powers or authority granted tothem by law or under the corporate charter. Some states have enactedlaws to prevent the use of the defense of ultra vires action to unfairlyavoid obligations under otherwise valid contracts.

8/3/2019 Legal Terms Define

http://slidepdf.com/reader/full/legal-terms-define 5/6

The concept of acting "under color of law" means acts are done while a person acts or purports to act in the performance of official duties

under any state, county, or municipal law, ordinance, or regulation.This is a similar concept that refers to the apparently authorized status

of the action, as distinguished from the unauthorized status of their 

actions, which ultra vires refers to.

The following is an example of a state statute dealing with the conceptof ultra vires:

a. "Except as provided in subsection (b), the validity of corporateaction may not be challenged on the ground that thecorporation lacks or lacked power to act.

A corporation's power to act may be challenged:

1. In a proceeding by a shareholder against thecorporation to enjoin the act;

2. In a proceeding by the corporation, directly,derivatively, or through a receiver, trustee, or other legal representative, against an incumbent or former director, officer, employee, or agent of thecorporation; or 

3. In a proceeding by the Attorney General under Section10-2B-14.30.

 b. In a shareholder's proceeding under subsection (b)(1) to enjoin

an unauthorized corporate act, the court may enjoin or set asidethe act, if equitable and if all affected persons are parties to the  proceeding, and may award damages for loss (other thananticipated profits) suffered by the corporation or another party

 because of enjoining the unauthorized act."

Doctrine of Ultra Vires In Corporate Law-

DOCTRINE OF ULTRA VIRES-EFFECTS AND EXCEPTIONS

CONCEPT

The object clause of the Memorandum of the company contains the

object for which the company is formed. An act of the company must

not be beyond the objects clause, otherwise it will be ultra vires and,

therefore, void and cannot be ratified even if all the members wish to

ratify it. This is called the doctrine of ultra vires, which has beenfirmly established in the case of  Ashtray Railway Carriage and Iron

Company Ltd v. Riche. Thus the expression ultra vires means an act

 beyond the powers. Here the expression ultra vires is used to indicate

an act of the company which is beyond the powers conferred on the

company by the objects clause of its memorandum.  An ultra vires act 

is void and cannot be ratified even if all the directors wish to ratify

it. Sometimes the expression ultra vires is used to describe the

situation when the directors of a company have exceeded the powers

delegated to them. Where a company exceeds its power as conferred

on it by the objects clause of its memorandum, it is not bound by it

 because it lacks legal capacity to incur responsibility for the action, but

when the directors of a company have exceeded the powers delegated

to them. This use must be avoided for it is apt to cause confusion

 between two entirely distinct legal principles. Consequently, here we

restrict the meaning of ultra vires objects clause of the company’s

memorandum.

Basic principles included the following:

Ø An ultra vires transaction cannot be ratified by all theshareholders, even if they wish it to be ratified.

Ø The doctrine of estoppel usually precluded reliance on the defense

of ultra vires where the transaction was fully performed by one

 party

Ø  A fortiori, a transaction which was fully performed by both parties

could not be attacked.

8/3/2019 Legal Terms Define

http://slidepdf.com/reader/full/legal-terms-define 6/6

Ø If the contract was fully executory, the defense of ultra vires might

 be raised by either party.

Ø If the contract was partially performed, and the performance was

held to be insufficient to bring the doctrine of estoppel into play, a

suit for quasi contract for recovery of benefits conferred was

available.

Ø If an agent of the corporation committed a tort within the scope of his or her employment, the corporation could not defend on theground the act was ultra vires.

QUANTUM MERUIT[Latin, As much as is deserved.] In the law of contracts,a doctrine by which the law infers a promise to pay a

reasonable amount for labor and materials furnished,even in the absence of a specific legally enforceableagreement between the parties.

By allowing the recovery of the value of labor and materials, quantum

meruit prevents the Unjust Enrichment  of the other party. A personwould be unjustly enriched if she received a benefit and did not pay for 

it when fairness required that payment be made. Quantum meruit can  be used to address situations where no contract exists or where a

contract exists but for some reason is unenforceable. In such casescourts imply a contract to avoid an unjust result. Such contracts are

called quasi contracts.

Quantum meruit also describes a method used to determine the exactamount owed to a person. A court may measure this amount either bydetermining how much the defendant has benefited from thetransaction or by determining how much the plaintiff has expended inmaterials and services.

The doctrine of quantum meruit was developed in the seventeenthcentury by the royal Court of Chancery in England. This court worked

apart from the common-law courts to grant relief that was due under general principles of fairness but could not be obtained under the strict

legal precedents of the common-law courts. The system of basingdecisions on basic principles of fairness became known as Equity. The

Chancery Court developed quantum meruit along with other equitable

doctrines that allowed a person to recover or collect for other valuableacts performed without a contract, such as the delivery of goods or money. Some of the first cases of quantum meruit involved recovery

 by persons in so-called trades of common calling, such as innkeepers,tailors, blacksmiths, and tanners.

quantum meruit (kwahn-tuhm mare-ooh-it) n. Latin for"as much as he deserved," the actual value of servicesperformed. Quantum meruit determines the amount tobe paid for services when no contract exists or whenthere is doubt as to the amount due for the work

performed but done under circumstances whenpayment could be expected. This may include aphysician's emergency aid, legal work when there wasno contract, or evaluating the amount due when outsideforces cause a job to be terminated unexpectedly. If aperson sues for payment for services in suchcircumstances the judge or jury will calculate theamount due based on time and usual rate of pay or thecustomary charge, based on "quantum meruit" byimplying a contract existed.