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Se v e nth EditionLegal TerminologyKent D. Kauffman, J.D.Member of the Indiana BarAssociate Professor of Business Law,Purdue University Fort Wayne, Fort Wayne, IndianaGordon W. Brown, J.D.Member of the Massachusetts and Federal BarsProfessor Emeritus,North Shore Community College, Danvers, Massachusetts330 Hudson Street, NY NY 10013A01 KAUF9225 07 SE FM.indd 106/10/17 6:06 PM
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This is dedicated to my wife, Karen, and my son, Reagan. Karen, your radiant spirit refreshes me everyday, and without your encouragement I would never have the privilege to have my name on this book’scover. Reagan, no earthly honor could ever make me more proud and no adventure could be morerewarding than being your father.Kent D. KauffmanFor the 30 years that I taught full time at North Shore Community College, practiced law part time,and wrote textbooks such as this, I have many people to thank. Among them are talented people in thefields of education, publishing, and law. The ones who bore the burden of my efforts, however, aremy wife, Jane, for her never-ending support and encouragement, and my children, Steven, Matthew,Deborah, Jennifer, Timothy, and David. They grew to be outstanding people even without my beingwith them during many of their growing-up activities because of my strong work ethic. It is to thesewonderful family members that this book is dedicated with many thanks and much love.Gordon W. BrownA01 KAUF9225 07 SE FM.indd 306/10/17 6:06 PM
CONTENTSPreface xiAbout the Authors xivPART ONE Terms Used in Practice and ProcedureChapter 1COURT SYSTEMS AND JURISDICTION12Federal Courts 3State Courts 5Jurisdiction and Venue 5Alternative Dispute Resolution 8Chapter 2CRIMINAL TRIAL PROCEDURE12Arrest 13Preliminary Hearing 14Indictment 14Arraignment 14Reasonable Doubt 14Sentencing 15Defendants’ Rights 16Trial Separation 16Chapter 3CIVIL TRIAL PROCEDURE20Beginning a Civil Action 21Selecting the Court 22Pleadings 22Service of Process 23Attachments 24Burden of Proof 26Enforcing the Judgment 26Summary Proceedings 26Chapter 4DEFENSIVE PLEADINGS IN CIVIL TRIALS31Demurrer 32Motions 32Counterclaim 35Cross Claim 35Cross Complaint 36Chapter 5METHODS OF DISCOVERY40Bill of Particulars 41Interrogatories 41Depositions 42Production of Documents and Things 43ivA01 KAUF9225 07 SE FM.indd 406/10/17 6:06 PM
ContentsvE-Discovery 43Permission to Enter on Land 45Physical and Mental Examination 45Requests for Admission 45Chapter 6PRETRIAL HEARING AND JURY TRIAL49Pretrial Hearing 50Right to Jury Trial 50Impaneling the Jury 51Examination and Challenge of Jurors 52Chapter 7STEPS IN A TRIAL57Plaintiff’s Opening Statement 58Plaintiff’s Case in Chief 59Defendant’s Opening Statement 60Defendant’s Case in Chief 60Requests for Instructions to Jury 60Closing Arguments 60Instructions to Jury 61Verdict 61Judgment or Decree 61Appeal 62Chapter 8LEGAL ETHICS67Competence and Truthfulness 69The Unauthorized Practice of Law and the Duty of Supervision 70Confidentiality 70Conflicts of Interest 71Legal Fees 71Advertising and Solicitation 72Legal Ethics in a Cyber World 72Attorney Discipline 72PART TWOTerms Used in Constitutional and Criminal Law 77Chapter 9CONSTITUTIONAL LAW78The Constitution’s Structure 79The Branches of Government 79Checks and Balances 80Amendments 80Chapter 10CRIMES, ACCOMPLICES, AND DEFENSES86Crimes Mala in Se and Mala Prohibita 87Principal Criminal Categories 88Accomplices 89Criminal Defenses 90A01 KAUF9225 07 SE FM.indd 506/10/17 6:06 PM
viContentsConstitutional Protections For Defendants 91Cybercrimes 92Chapter 11CRIMES AGAINST PROPERTY96Larceny 97Embezzlement 99Larceny by False Pretenses 99Bribery, Extortion, and Coercion 100RICO 100Receipt of Stolen Goods 101Forgery 102Chapter 12CRIMES AGAINST THE PERSON AND HUMAN HABITATION106Robbery 107Mayhem 108Assault and Battery Distinguished 109Rape 110Domestic Violence and Stalking 111Crimes Against Human Habitation 112Chapter 13HOMICIDE118Justifiable Homicide 119Proximate Cause 120Felonious Homicide 121Chapter 14CRIMES AGAINST MORALITY AND DRUG ABUSE126Adultery and Fornication 127Bigamy and Polygamy 128Incest and Sodomy 128Miscegenation and Abortion Laws 129Pornography and Obscenity 130Illegal Drug Use 130PART THREETerms Used in Torts LawChapter 15137TORTS AND TORTFEASORS138Elements of a Tort Action 139Imputed Liability 140Liability of Minors 141Immunity from Tort Liability 141Joint Tortfeasors 142Chapter 16INTENTIONAL TORTS146Assault and Battery 147False Imprisonment 147Infliction of Emotional Distress 147A01 KAUF9225 07 SE FM.indd 606/10/17 6:06 PM
ContentsviiFraud 148Defamation 149Invasion of Privacy 150Malicious Prosecution 151Trespass 151Conversion 152Nuisance and Waste 152Chapter 17NEGLIGENCE AND PRODUCT LIABILITY155Elements of Negligence 156Defenses to Negligence 159Product Liability 160PART FOURTerms Used in Law of ContractsChapter 18FORMATION OF CONTRACTS165166Contract Formation 167Contract Classifications 168E-Contracts 171Chapter 19CONTRACT REQUIREMENTS176Contractual Capacity 177Consideration 177Contracts Required to Be in Writing 179Defective Agreements 180Agreements Unenforceable due to Illegality 182Chapter 20THIRD PARTIES AND DISCHARGE OF CONTRACTS186Third-Party Beneficiaries 187Assignment and Delegation 187Ending Contractual Obligations 188Chapter 21THE UNIFORM COMMERCIAL CODE AND SALES OF GOODSCONTRACTS 195Sales of Goods 196PART FIVETerms Used in the Law of Personal Property and Agency 205Chapter 22PERSONAL PROPERTYvs.REAL PROPERTY206Bailments 210Chapter 23INTELLECTUAL PROPERTY215Patents 216Trademarks 217Copyrights 218Trade Secrets 219A01 KAUF9225 07 SE FM.indd 706/10/17 6:06 PM
viiiContentsChapter 24LAW OF AGENCY223Relationships Distinguished 224Kinds of Agents 225Authority of Agents 225Vicarious Liability 226PART SIXTerms Used in the Law of Wills and EstatesChapter 25231WILLS, TESTAMENTS, AND ADVANCE DIRECTIVES232Parties to a Will 233Statutory Requirements for a Will 233Advance Directives 238Chapter 26REVOCATION, LAPSES, AND ADEMPTION243Revocation 244Failure of Legacies and Devises 245Chapter 27PRINCIPAL CLAUSES IN A WILL252Exordium Clause 253Debts and Funeral Expenses 253Dispositive Clauses 253Residuary Clause 253Personal Representative, Guardian, and Trustee 254No Surety on Bond 254Powers Given to Fiduciaries 254Tax Apportionment Clause 254No-Contest Clause 255Testimonium Clause 255Attestation Clause 256Self-proving Affidavit 256Chapter 28DISINHERITANCE AND INTESTACY260Spousal Protection 261Dower and Curtesy 261Pretermitted Children 262Homestead Protection 263Distinctive Relationships 263Intestacy 263Chapter 29PERSONAL REPRESENTATIVE OF THE ESTATE269Estate Settlement 270Titles of Personal Representatives 270Chapter 30SETTLING AN ESTATE276Steps in Estate Settlement 277Contesting a Will 279A01 KAUF9225 07 SE FM.indd 806/10/17 6:06 PM
ContentsChapter 31TRUSTSix283Parties to a Trust 284Kinds of Trusts 284PART SEVENTerms Used in Law of Real PropertyChapter 32ESTATES IN REAL PROPERTY293294Freehold Estates 295Leasehold Estates 298Chapter 33MULTIPLE OWNERSHIP OF REAL PROPERTY302Co-Ownership of Real Property 303Multi-Ownership of Real Property 306Chapter 34ACQUIRING TITLE TO REAL PROPERTY311Original Grant 312Deed 312Inheritance 312Sale on Execution 313Mortgagee’s Foreclosure Sale 313Tax Authority Title 314Adverse Possession 314Slow Action of Water 315Chapter 35DEEDS319Sealed Instrument 320Requirements of a Modern Deed 321Describing Real Property 321Types of Deeds 322Chapter 36MORTGAGES327Historical Background 328Prevailing Mortgage Theories 328Types of Mortgages 329Mortgage Foreclosure 330Mortgage Redemption 330Transfer of Mortgaged Premises 331Junior Mortgages 332Mortgage Discharge 332Chapter 37LANDLORD AND TENANT336Leasehold Estates 337License 338The Lease 338Tenants’ Rights 339Eviction 339Tort Liability 340A01 KAUF9225 07 SE FM.indd 906/10/17 6:06 PM
xContentsPART EIGHTTerms Used in Family LawChapter 38345MARRIAGE, DIVORCE, AND DISSOLUTION OF MARRIAGE346Prenuptial Agreements 347Marriage Formalities 348Same-Sex Marriage and Civil Unions 349Annulment of Marriage 350Separation of Spouses 351Divorce or Dissolution of Marriage 351Chapter 39DIVORCE PROCEDURE357Domicile and Residence 358Foreign Divorce 359Defenses to Divorce Actions 360Alimony and Property Distribution 360Support and Custody of Children 361PART NINETerms Used in Business Organizations and Bankruptcy 367Chapter 40BUSINESS ORGANIZATIONS368Sole Proprietorship 369Partnership 370Corporation 372Limited Liability Company 374Joint Venture 374Franchise 374Chapter 41THE LAW OF BANKRUPTCY380Goals of the Bankruptcy Code 381Types of Bankruptcy Proceedings 381Glossary of Legal Terms 391Glossary of Latin Terms and PhrasesIndex422424A01 KAUF9225 07 SE FM.indd 1006/10/17 6:06 PM
PREFACELegal Terminology, Seventh Edition has been revised to improve accuracy and currency. Thistext is designed to develop your understanding of legal terms in concert with their usage in thelegal field. Emphasis is placed on learning terms in context through the study of law itself andon using legal terminology in many different ways, rather than relying on rote memorization ofterms. The short easy-to-understand chapters are written in a lively manner to hold your attentionand engage your interest in the law.NEW TO THIS EDITION Major revisions and updates to the primary legal authority or legal doctrines presented inevery chapter. “Learning Objectives” are now included and begin each chapter. More legal citations added to existing statutes and case law throughout the text. New chapter on the Uniform Commercial Code. New “Terms in Action” added throughout the chapters. New “Web Wise” features throughout the chapters. New material on e-Contracts and cyber law. New additions to the Glossary, including over 20 new terms with definitions. Updated Instructor’s Materials, including a new test bank.INSTRUCTOR SUPPLEMENTSInstructor’s Manual with Test Bank. Includes content outlines for classroom discussion,teaching suggestions, and answers to selected end-of-chapter questions from the text. This alsocontains a Word document version of the test bank.TestGen. This computerized test generation system gives you maximum flexibility in creatingand administering tests on paper, electronically, or online. It provides state-of-the-art featuresfor viewing and editing test bank questions, dragging a selected question into a test you arecreating, and printing sleek, formatted tests in a variety of layouts. Select test items from testbanks included with TestGen for quick test creation, or write your own questions from scratch.TestGen’s random generator provides the option to display different text or calculated numbervalues each time questions are used.PowerPoint Presentations. Our presentations are clear and straightforward. Photos, illustrations,charts, and tables from the book are included in the presentations when applicable. To accesssupplementary materials online, instructors need to request an instructor access code. Go towww.pearsonhighered.com/irc, where you can register for an instructor access code. Within 48hours after registering, you will receive a confirming e-mail, including an instructor access code.Once you have received your code, go to the site and log on for full instructions on downloadingthe materials you wish to use.ALTERNATE VERSIONSeBooks. This text is also available in multiple eBook formats. These are an exciting new choicefor students looking to save money. As an alternative to purchasing the printed textbook, students can purchase an electronic version of the same content. With an eTextbook, students cansearch the text, make notes online, print out reading assignments that incorporate lecture notes,and bookmark important passages for later review. For more information, visit your favoriteonline eBook reseller or visit www.mypearsonstore.com.xiA01 KAUF9225 07 SE FM.indd 1106/10/17 6:06 PM
xiiPrefaceACKNOWLEDGMENTSSpecial thanks to the following reviewers who provided excellent technical and practical suggestions for improvement and readability for the new edition:Christy Powers, St. Petersburg CollegeCarol Rosborough, Houston Community CollegeTrinette Zarran, Miami Dade CollegeWe would also like to express our gratitude to the reviewers of the previous edition:Brian Craig, Globe University/Minnesota School of Business; Cathy Underwood, PulaskiTechnical College; Pam Cummings, Minnesota State Community and Technical College; LeslieRatliff, Griffin Technical College; Paula Witt, Houston Community College; Linda Cupick,Daytona Beach Community College; Jody L. Cooper, Blackhawk Technical College; andClaudine Dulaney, International Institute of the Americas.We would also like to thank the following survey respondents who helped us to refine thecoverage of the textbook:Joseph Kline, South Plains CollegeBarry Puett, State College of Florida, Manatee-SarasotaLinda Wenn, Central Community CollegeSusan Balman, Butler Community CollegeJerrold Fleisher, Suny Rockland Community CollegeCathy Carruthers, Lewis & Clark Community CollegeGlenda Hanson, Renton Technical CollegeTeresa Harbacheck, College of Western IdahoGwendolyn Pope, J. F. Drake State Technical CollegeSabrina Swann, Central Georgia Technical CollegeDiana Yohe, Bristol Community CollegeWilliam Yenna, Kingsborough Community CollegeJody Cooper, Blackhawk Technical CollegeJoyce Zweedyk, Kalamazoo Valley Community CollegeBob Loomis, Spokane Community CollegeLarena Grieshaber, Independence Community CollegeKarin Kelley, Bates Technical CollegeSharolyn Sayers, Milwaukee Area Technical CollegeKim Phifer-Starks, Mississippi Gulf Coast Community CollegeThea Hosselrode, Allegany College of MarylandGeorganne Copeland, Centralia CollegeMarilyn Wudarcki, North Idaho CollegeBetty Lambert, Des Moines Area Community CollegeSonya Rambo, West Kentucky Community & Technical CollegeToni Clough, Umpqua Community CollegeGloria Bailey, Atlantic Technical CenterCrystal Sullivan, Umpqua Community CollegeElizabeth Snodgrass, Mountain Empire Community CollegeCrystal Price, Alvin Community CollegeA01 KAUF9225 07 SE FM.indd 1206/10/17 6:06 PM
PrefacexiiiDouglas Rogers, Jefferson State Community CollegeCarolyn Sharpe, Cleveland Community CollegeMary Balmages, Cerritos CollegeAmy Wilson, Zane State CollegeLori Asante, Cincinnati State Technical and Community CollegeMaxine Boggy, Atlantic Technical CenterMarissa Wawrzyniak, Brevard Community CollegeOur hope is that this book will provide to instructors a clear roadmap for navigating thecourses for which this book is used, and to the students a treasure chest of terms and principlesthat will assist you throughout your legal courses and into your careers.A01 KAUF9225 07 SE FM.indd 1306/10/17 6:06 PM
ABOUT THE AUTHORSKent D. Kauffman is Associate Professor of Business Law at Purdue University Fort Wayne(formerly called Indiana University Purdue University-Fort Wayne), in Fort Wayne, Indiana.He is licensed to practice law in Indiana and is certified as a mediator in Indiana. He is a summacum laude graduate of Temple University and a graduate of The Dickinson School of Law of thePennsylvania State University. For 15 years, Professor Kauffman was the Chair of the ParalegalStudies Department at Ivy Tech Community College in Fort Wayne, Indiana.Professor Kauffman is the author of various academic journal articles and other books,including Legal Ethics, in its third edition and published by Delmar Cengage Learning. He is amultiple recipient of Who’s Who in American Education and Who’s Who in American Law .Professor Kauffman is the recipient of various teaching awards, including being inducted intothe Indiana University Faculty Academy on Excellence in Teaching (FACET), as well as beingawarded on multiple occasions as Professor of the Year by Delta Sigma Pi, his university’s coeducational business fraternity.Gordon W. Brown, is a Professor Emeritus of North Shore Community College, Danvers,Massachusetts, where he taught for 30 years. He also taught for two years at PepperellHigh School, Pepperell, Massachusetts, and for six years at Endicott College in Beverly,Massachusetts.In addition to writing the first five editions of this book, Professor Brown is the authorof the first three editions of Administration of Wills, Trusts, and Estates published by DelmarCengage Learning. Over a 30-year period, he co-authored eight editions of UnderstandingBusiness & Personal Law and seven editions of Business Law with UCC Applications, publishedby McGraw-Hill.In 1998, Professor Brown was awarded the Outstanding Educator Award from his almamater, Salem State University. He received his law degree from Suffolk University and practicedlaw part time while teaching full time. He is a retired member of the Massachusetts and federalBars.xivA01 KAUF9225 07 SE FM.indd 1406/10/17 6:06 PM
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