Legal Glossary - I
A contract must have certainty as to the obligations and rights assigned to the parties. Vagueness as to what a party can expect to receive is termed illusory consideration and voids a contract.
Consent which is deemed to have been given, due to the behaviour of the consentor, because of customary expectations, or for the sake of commercial convenience. Implied consent cannot contradict the terms of a written contract directly, or established laws.
A trust whose existence is inferred by various kinds of evidence as to the settlor’s intention, but not clearly expounded in writing. The settlor’s verbal remarks and conduct can form part of such evidence. The intention to form a trust, what the subject property is, who the beneficiaries are and the manner of distribution still need to be ascertainable with certainty.
Impossible to take away. Non-transferrable.
Inability to function normally. An incapacitated person who cannot manage their own affairs cannot form the degree of informed intention required to assent to contractual obligations. Such incapacity may result from medical or genetic issues or from the influence of intoxicating substances. Thus any contract with them is vitiated. An employee incapacitated due to their employment may be entitled to WorkCover compensation.
Latin: In place of.
A court order making a person do, or refrain from doing, something. This can be given as a final remedy, or as a temporary measure to ensure that the plaintiff is not further harmed while awaiting trial.
The status of a corporation where it is no longer able to pay its financial obligations in full, when they fall due. Relevant financial obligations can be of any lawful kind, not merely repayments of loans. A corporation must cease operations as soon as the directors reasonably believe insolvency has been reached.
The interlocutory stage of proceedings fore-runs a court trial. At this stage solicitors on either side communicate and exchange evidence. Claims are often settled out of court at this stage.
Court proceeding dealing with a specific issue, prior to the giving of the final hearing and decision. An interlocutory application may be for interim relief (such as an injunction) or in relation to a procedural step (such as discovery).
A method for obtaining evidence. One solicitor serves the other party's solicitor with a document containing a list of questions. The party served is to answer the questions under oath and in writing.
Invitation to Treat
Any indication that a contract is available to take up. It may be the offeror or offeree who makes the invitation. Examples: advertisements, display of goods for sale.