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Legal Dictionary – D

Legal Dictionary – D

 

Damages

A cash compensation ordered by a court to offset losses or suffering caused by another’s fault or negligence. Damages are a typical request made of a court when persons sue for breach of contract or tort.

Death penalty

Also known as capital punishment. The most severe form of corporal punishment. Forms of the death penalty include hanging, lethal injection, gassing, firing squad and has included use of the guillotine.

Debtor

One who owes money, goods or services to another, the latter being referred to as the creditor.

Decapitation

The act of beheading a person, usually instantly such as with a large and heavy knife or by guillotine, as a form of capital punishment. This form of capital punishment is still in use in some Arab countries, notably Saudi Arabia.

Decree absolute

The name given to the final and conclusive court order after the condition of a decree nisi (which see) is met.

Decree nisi

A provisional decision of a court not having force or effect until a certain condition is met, such as another petition being brought before the court, or after the passage of a period time. Although no longer required in many jurisdictions, this was the model for divorce procedures wherein a court would issue a decree nisi, which would have no force or effect until a period of time passed (30 days or 6 months). When the conditions are met, the decision becomes a decree absolute (which see).

Deed

A written and signed document setting out the actions that must be carried out or recognitions of the parties towards a certain object. Under older common law, a deed had to be sealed; that is, accompanied not only by a signature but with an impression on wax onto the document. The word deed is also most commonly used in the context of real estate because these transactions must usually be signed and in writing.

Deem

To accept a document or an event as conclusive of a certain status in the absence of evidence or facts which would normally be required to prove that status. For example, in matters of child support, a decision of a foreign court could be “deemed” to be a decision of the court of another for the purpose of enforcement.

De facto

Latin: as a matter of fact; something which exists in fact even if not necessarily lawful or legally sanctioned. For instance, a common law spouse may be referred to as a de facto wife or de facto husband: although not legally married, they live and carry on their lives as if married. A de facto government is one which has seized power by force or in any other unconstitutional method and governs in spite of the existence of a de jure (which see) government.

Defalcation

1. Defaulting on a debt or other obligation by one who has to account for public or trust funds. Usually used in the context of public officials. 2. Defalcation has another legal meaning, referring to the setting-off of two debts owed between two people by the agreement to a new amount representing the balance. For instance, A owes $10 to B and B owes A $3; they agree to “defalk” , resulting in A now owing $7 to B. The two previous debt instruments are canceled and replaced by the new one. See also “novation”.

Defamation

An attack on the good reputation of a person, by slander or libel (which see).

Defeasance

A side-contract containing a condition which, if realized, could defeat the main contract. The common English usage of the word “defeasance” has also become acceptable in law, referring to a contract that is susceptible to being declared void as in “immoral contracts are susceptible to defeasance.”

Defendant

The person, company or organization defending a legal action taken by a plaintiff. The court will be asked to order damages or specific corrective action to redress some type of unlawful or improper action alleged by the plaintiff against the defendant.

Dehors

French for outside. In the context of legal proceedings, it refers to that which is irrelevant or outside the scope of the debate.

De jure

Latin: “of the law.” The term has come to describe a total adherence of the law. For example, a de jure government is one which has been created in respect of constitutional law. It will be in all ways legitimate even though a de facto government may be in control.

Delegatus non potest delegare

One of the pivotal principles of administrative law: that a delegate cannot delegate. In other words, a person to whom an authority or decision-making power has been delegated to from a higher source, cannot, in turn, delegate it again to another, unless the original delegation explicitly so authorizes.

Demand letter

A letter from a lawyer, on behalf of a client, that demands payment or some other action, which is in default. A demand letter sets out why the payment or action is claimed, how it should be carried out (e.g. payment in full), instructions for replying, and a deadline for the reply. Demand letters are not always prerequisites for a legal suit but there are exceptions, such as legal action on promissory notes or if the contract requires it. They are often used in business contexts as a courtesy attempt to maintain some goodwill between business parties. They often prompt payment, avoiding expensive litigation since a demand letter often contains the “threat” that if it is not responded to, the next communication between the parties will be through a court of law in the form of formal legal action.

Demarche

A coined word created by diplomats, referring to a strongly worded warning by one country to another and often, either explicitly or implicitly, with the threat of military consequence. Demarches are often precursors to hostilities or war.

De minimis non curat lex

Latin: “the law does not concern itself with trifles”. A common law principle whereby judges will not sit in judgment of extremely minor transgressions of the law.

Demurrer

A motion put to a trial judge by the defendant, asking the court to reject the petition of the plaintiff because of a lack of basis in law or insufficient evidence . This occurs after the plaintiff has completed his or her case. The defendant is neither objecting to the facts presented nor responding by a full defense. This motion has been abolished in many states and, instead, any such arguments are to be made while presenting a regular defense to the petition.

De novo

Latin: new. This term is used to refer to a trial which starts over, wiping the slate clean and beginning all over again, as if any previous partial or complete hearing had not occurred.

Deportation

To remove a foreign national to his home country or another country, under immigration laws. Such removal is usually based on reasons such as illegal entry or conduct dangerous to the public welfare. Grounds for deportation vary from country to country.

Deposition

The official statement by a witness taken in writing (as opposed to testimony which where a witnesses give their perception of the facts verbally). Affidavits are the most common kind of depositions.

Descendant

One who is born of, or from children of, another is called that person’s descendant. Grandchildren are descendants of their grandfather, as children are descendants of their natural parents. The law also distinguishes between collateral descendants and lineal descendants (which see).

Detinue

A common law action involving the possession of property by the defendant but belonging to the plaintiff, asking the court for the return of the property. The plaintiff may also ask for damages for the duration of the possession. See also “conversion”.

Devastavit

Latin for “he has wasted.” A technical term referring to a personal representative who has mismanaged an estate and allowed an avoidable loss to occur. This action opens the personal representative to personal liability for the loss.

Devise

The transfer or conveyance of real property by will.

Dicta or dictum

Latin: an observation by a judge on a matter not specifically before the court or not necessary in determining the issue before the court; a side opinion which does not form part of the judgment for the purposes of stare decisis. May also be called “obiter dictum.”

Diplomat

An official representative of a government, present in another country for the purposes of general representation of the state-of-origin or for the purpose of specific international negotiations on behalf of the diplomat’s state-of-origin.

Discretionary trust

A trust in which the settlor has given the trustee full discretion to decide which (and when) members of a group of beneficiaries are to receive either the income or the capital of the trust.

Disrate

A term of maritime law meaning an officer or other seaman is either demoted in rank or deprived of a promotion.

Dissent

To disagree. The word is used in legal circles referring to the minority opinion of a judge which runs contrary to the conclusions of the majority.

Dissolution

The act of ending, terminating or winding-up a company or state of affairs. For example, when the life of a company is ended by normal legal means, it is said to be “dissolved”. The same is said of marriage or partnerships which, by dissolution, end the legal relationship between those persons formally joined by the marriage or partnership.

Distraint

The right of a landlord to seize the property of a tenant in the premises rented by the tenant, as collateral. This collateral is against a tenant who has not paid the rent or has otherwise defaulted on the lease, such as wanton disrepair or destruction of the premises. A common way to “distrain” against a tenant is by changing locks and giving notice to the tenant. A legal action to reclaim goods that have been distrained is called replevin (which see).

Dividend

A proportionate distribution of profits made in the form of a money payment to shareholders, by a for-profit corporation. Dividends are declared by a company’s board of directors.

Divorce

The final, legal ending of a marriage, by court order.

DNA

Abbreviation for deoxyribonucleic acid which is a chromosome molecule carrying genetic coding unique to each person with the only exception being identical twins. That is why it is also called “DNA fingerprinting”. Through a laboratory process, DNA can be extracted from body tissue such a strand of hair, semen, or blood and be matched against DNA discovered at a crime scene or on a victim. This evidence may be used to scientifically implicate an accused. It can also be used to match DNA between parents in a paternity suit.

Docket

An official court record book listing all the cases before the court and which may also note the status or action required for each case.

Doctrine

A rule or principle of the law established through the repeated application of legal precedents.

Domicile

The permanent residence of a person; a place to which, even if he or she were temporarily absent, they intend to return. In law, it is said that a person may have many residences but only one domicile.

Dominant tenement

Used when referring to easements to specify that property (i.e. tenement) or piece of land that benefits from, or has the advantage of, an easement.

Dominion directum

Latin: the qualified ownership of a landlord, not having possession or use of property but retaining ownership. Used in feudal English land systems to describe the King’s ownership of all the land, even though most of it was lent out to lords for their exclusive use and enjoyment.

Dominion utile

Latin: the property rights of a tenant. While not owning the property in a legal sense, the tenant, as having “dominion utile”, enjoys full and exclusive possession and use of the property while he is tenant.

Donatio mortis causa

A death-bed gift, made by a dying person, with the intent that the person receiving the gift shall keep the thing if death ensues. Such a gift is exempted from the estate of the deceased as property is automatically conveyed upon death. In most jurisdictions, real property cannot be transferred by these death-bed gifts.

Donee

Another word describing the beneficiary of a trust. Also used to describe the person who is the recipient of a power of attorney; the person who would have to exercise the power of attorney.

Donor

The person donating property for the benefit of another, usually through the legal mechanism of a trust. Some countries refer to the trust donor as a “settlor.” Also used to describe the person who signs a power of attorney.

Duces tecum

Latin: bring with you. Used most frequently for a species of subpoena (as in “subpoena duces tecum”) which seeks not so much the appearance of a person before a court of law, but the surrender of a thing (e.g. a document or some other evidence) by its holder, to the court, to serve as evidence in a trial.

Due process

A term of US law referring to fundamental procedural legal safeguards to which every citizen has an absolute right when a state or court purports to take a decision that could affect any right of that citizen. The most basic right protected under the due process doctrine is the right to be given notice, and the opportunity to be heard. The term is now also in use in other countries, again to refer to basic fundamental legal rights such as the right to be heard.

Dum casta

Latin: for so long as she remains chaste. Separation agreements years ago used to contain dum casta clauses which said that if the woman were to start another relationship, she forfeited her entitlement to maintenance.

Dum sola

Latin: for so long as she remains unmarried.

Dum vidua

Latin: for so long as she remains a widow.

Duplex

A house having separate but complete facilities to accommodate two families, either as adjacent units or one on top of the other.

Duress

Threats or force of another preventing a person from acting (or not acting) according to their free will is said to be placing that person “under duress”. Contracts signed under duress are voidable. In many places, conviction of a crime is prevented if one can prove that he was forced or threatened into committing the crime (although this defense may not be available for serious crimes).