Legal Glossary - C
Law developed by courts through the issuance of judgments. See also Common law, Equity. Different to Statutory Law.
Cause of action
The law on which a plaintiff’s case is based.
The link between the harm incurred by the plaintiff and the actions or omissions of the defendant. If the causation is indirect, the plaintiff must show that a chain of events led, without any assistance from other parties to the harm incurred. Causation is relevant in contract and tort cases.
Latin: Beware. A notice to holders of proprietary rights not to perform certain actions with respect to the subject property, pending a court decision. Such action include registration of further proprietary interests. A real property registered in the Torrens system has a caveat recorded on the register which results in actions concerning the property register to result in notification going to the holder of the caveat so that the holder may bring court action if they wish.
Items of property other than real property. Synonym: goods.
The act of a private individual (not necessarily a citizen) arresting a criminal offender or suspect. Although it is recognised at common law, each state and territory in Australia has enacted legislation which provides variants on the common law principle. It is commonly required that the arrested suspect be handed over to police.
Laws regulating the behaviour of individuals or organisations toward each other. Distinct from Criminal Law.
A court proceeding in which many plaintiffs exist. Commonly used when a large company or government is alleged to have wronged many people. Also known as representative proceedings.
When a contract is formed one party may find it necessary to induce the other party to enter the contract. To do so they may make an entirely separate offer to be fulfilled upon execution of the primary contract. This offer and acceptance is a collateral contract. Acceptance of the collateral contract is constituted in execution of the primary contract.
A form of case law. This term is sometimes used to describe all case law. Common law is distinguished by lawyers from Equity on the basis of its tendency to require strict observance of formalities.
A person imbued with power to be exercised on behalf of the Crown, with respect to specific subject matter. A commissioner is generally able to appoint agents to act on their behalf, and may also be authorised by statute to appoint delegates.
Permission given by a person to allow an act or omission that would otherwise be an unlawful imposition on their personal rights. It is of great significance that consent can be implied, such as by continuing to tolerate an imposition, or by customary expectations on people in the consentor’s position. See also licence.
Anything performed in pursuance of a contractual obligation. Thus in a normal contact of sale, the consideration of the seller is passage of goods and the consideration of the buyer is payment of money. In a service contract, it is the performance of the required service. Performance must fit what is stipulated in the terms. It may involve abstaining from something the party would otherwise do.
The constructive trust is a tool used by courts and brought into being by them when resolving issues that look like a breach of equity. If person A accepts any property right, or work done to enhance the value of any kind of property, or somehow leads B to expect benefit for things that they do, then A owes B accordingly. What is owed may be a share in the enhanced property, or a thing somehow commensurate in value to the things done. Not to be confused with a contract.
1: An agreement having certainty of terms, reached out of free will between two parties, and setting out rights and obligations on both sides. Contacts can be written, verbal or implied by conduct. They usually relate to commercial transactions, but can be non-commercial. Rights and obligations may be proprietary or personal in nature.
2: A body of law dealing with the formation, execution and termination of contracts.
Where the plaintiff in an action for negligence contributes by neglectful, reckless or wilful action or omission, to the harm they have suffered. They are denied some or all of the compensatory damages to which they would otherwise be entitled.
A right that gives the author of “work,” (be it an art work or writing of any kind) for life plus 70 years, the exclusive ownership of the work and control over what others may do with it.
Any organisation formally constituted and registered, such that it has legal personality. It can sue and be sued in its own name and hold and transfer property in its own name. Type of corporations include public companies, private companies, not-for-profit organisations and owners’ corporations.
Synonym for barrister. Also in-house counsel: a lawyer employed by a corporation to give legal advice in a mangerial or consultative role.
A claim where the defendant in the original claim lodges a claim against the original plaintiff. Effectively both parties are defending and claiming at the same time.
Laws concerned with the conduct of individuals in terms of the right of the government to maintain order in society. While most criminal offences are against other individuals or companies, it is the usually government which prosecutes.
Where there are co-defendants or co-plaintiffs, one may sue the other irrespective of the existence of the original claim. A cross claim has to be closely connected to what is in dispute in the original claim or in a counter claim.
The source of paramount government authority in a monarchy, personified in the ruling monarch. See also State.