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Legal Grind® presents

The Little Law Book

by Miriam Kurtzig Freedman, J.D
Illustrations by Daphne San Jose

Legal Procedures and Courts

CHAPTER 22

Legal Twosomes and Threesomes

Yes and no. Black and white. Peanut butter and jelly. This-' n' -that ... Terms that go together.

Words matter. Much depends on what something is called and how it compares to something else. In law, especially, once you decide what something is, you name it. And, different laws apply to different situations with different consequences. So you see, in law, as in life itself, what you call something (or someone) is very important.

Here are some common pairs or threesomes:

1. VESTED RIGHTS AND INTERESTS AND CONTINGENT RIGHTS AND INTERESTS (ALSO CALLED EXECUTORY INTERESTS)

Vested: A fixed, accrued right. For example, damages you won in a trial. Money owed to you for work you have completed.

Contingent: A possible right or interest that is not fixed or actual, but depends on a future event or possibility that may happen. For example, damages you may win in a trial. The amount for which you are suing. Money you plan to earn in your new job. If you' re suing someone, all other things being equal, it' s probably better to go after vested interests than contingent interests. That' s following the (practical/nonlegal) principle of ' a bird in the hand . . . '

Vested and contingent: These are the principles that underlie all law students' battles with the Rule against Perpetuities. (Is it because they finally got through this Rule that lawyers charge so much?) That Rule, by the way, states that contingent interests in property must vest not later than twenty-one years after some specific life in being (or in gestation-that is, the nine months of pregnancy. They thought of everything, did they not!). The Rule is designed to free up property and not permit unreasonable restraints to tie property up for years and years, generation after generation. A fun rule to bring up at your next cocktail party with your lawyer! So much for vested and contingent interests...

2. DOMICILE AND RESIDENCE

Domicile: A person' s permanent home, principal residence. It's where you vote, write your will, usually pay your taxes. A person has one domicile, but may have many residences.

Residence: A person' s home. It may be permanent or temporary. A person may have many residences, often depending on how rich he is or how many suitcases he likes to pack. A vacation home is usually a residence, not a domicile. Many rights and responsibilities flow from whether that house or apartment is your residence or domicile.

3. TANGIBLE AND INTANGIBLE PROPERTY

Tangible: Something you can hold, possess, whether it's real estate or personal property. For example, your house, car, jewels, lawn mower.

Intangible: Something that is evidence of property, but not the real thing! It' s-ready? -incorporeal. For example, a copyright, easement, or franchise.

4. TANGIBLE AND INCHOATE

Tangible: Complete, vested.

Inchoate: Imperfect, begun, and incomplete. For example, an inchoate instrument (document) is one that must be registered, but isn' t yet, such as a deed. Before it is registered, it' s inchoate, valid only between the two parties. After it is registered, it' s valid against the whole world: everyone is assumed to have notice of it.

5. MANIFEST (ALSO CALLED PATENT) AND LATENT

Patent Manifest: Obvious. Can be seen by normal inspection. For example, when selling your home, you leave all the defects, such as water damage in the basement, for all potential buyers to see. It may be hard for one of them to sue you later because there is water damage in the basement. He knew or should have known about that patent/manifest defect.

Latent: Hidden, not obvious. Can' t be seen by normal inspection. For example, when buying a car, you do the usual inspection (look under the hood, drive it around, have a mechanic check it over). However, the car turns out to have a defect in the engine that could only be discovered by taking the engine apart. You may have an easier time suing the seller because of this latent defect than you would if suing over a patent defect. In tort law, often the defendant' s (∆' s) negligence depends on whether the defect was latent or patent.

6. EXPRESSED AND IMPLIED

Expressed: Unmistakable, clear, specified. For example, an express consent is definite and clear: ' I agree to sell my car to youî

Implied: Intended, but not expressed in words. Implied from action or inaction. For example, it is said that driving is a privilege. If I get a license, I am deemed to have implied to consent to obey the rules of the road. This is why, if I refuse a Breathalyzer test, in many states the police may take my license; even if I' m not guilty of driving under the influence. I had consented to that test. (This law is being closely watched and tested in many jurisdictions at this time.) These terms are also important in waivers and warranties. Different consequences flow from each, whether express or implied.

7. SOLVENT AND BANKRUPT

Solvent: You are solvent when your money and assets exceed your obligations (debts). You have enough money and other assets (things you own) to pay your bills.

Bankrupt: You are bankrupt when your debts (obligations) exceed your assets. All the money and assets you own are not enough to pay your bills as they become due. You can' t pay your bills and all your creditors are after you. To declare yourself bankrupt, in order to gain protection from creditors or to reorganize your affairs, you have to proceed through Bankruptcy Court.

8. SECURED AND UNSECURED

Unsecured: credit card debt;

Secured: home equity loan, etc.

9. NISI AND ABSOLUTE

Nisi: Unless. Something will happen unless something else occurs. For example, a divorce decree nisi will be finalized after a specified time unless someone shows that it should not be made absolute. Also called ' interlocutory.î For example, an interlocutory divorce decree.

Absolute: Final, complete.

9. COERCED AND VOLUNTARY

Coerced: Forced to do something under duress, compulsion. Forced to obey against one' s will. This will often invalidate an action.

Voluntary: Free of coercion. Assurance to this effect is often required to validate the action. For example, to be effective, a waiver must be knowing and voluntary. These terms are important in wills, in issues of consent, and in criminal confessions, for example. We all know that a will that is proven to have been coerced may be invalid. The same goes for a confession or consent.

10. CONSTRUCTIVE AND REAL

Constructive: Not actual, not real, but accepted legally as if it were. For example, constructive eviction: If a tenant abandons a property that the landlord made uninhabitable (as by turning off the heat and water), then, even though the landlord didn' t actually throw the tenant out, his actions have done so constructively. There are also such things as constructive trust, constructive notice, and constructive delivery. Constructive possession: In this case you have the power to own the property, but you' re not there.

Real: Actual, factual, real. For example, an actual eviction (unlike a constructive eviction): ' You are hereby notified that after December thirty-first, your lease will not be renewedî . . . or some similar language. Real, actual possession (unlike constructive possession): In this case you are actually on the property or have the property in question. When does it matter? For example, in a criminal case, the driver of a car carrying weapons or drugs in the trunk may argue that he was not in possession of that contraband. In contrast, the prosecution may argue that he was, as he had the keys (the power over the property).

And so it goes...What you call something, is vitally important in law, as in life!

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