Civil law
Common law
Legislative counsel
Lessor, lessee; mortgagor, mortgagee
Miranda warnings
Office of the Parliamentary Counsel
Parliamentary counsel
Part 20 claim
Personalty (personal property)
Realty (real property)
Sever joint tenancy
Shared ownership lease
Statement of case
Trustee in bankruptcy
Winding up
These explanations are intended to be broadly accurate so that non-specialist readers can understand the text in the book. They are not rigorous definitions and might not reflect the meaning of the expression in a different context.



Civil law 51, 213 Civil law has several different meanings. In this context it is the European system of law, based on Roman law and the Napoleonic codes. It is usually contrasted with common law.

Common law ix, 51 213 Common law has several different meanings. In this context it is the English system of law, made by judges when not by parliament. The system and much of the law have been inherited by England's former colonies, notably the Commonwealth countries and the United States. It is usually contrasted with Civil law.

Executors and trustees 75, 77 120-121 137 This is not a redundant use of synonyms: the two roles are different and not always vested in the same person:
Executors prove the will, take control of the assets, pay the debts, and distribute what remains to the beneficiaries. This rarely takes more than a year or two and can be much quicker.

Trustees appointed by a will administer gifts made to people whose interest is limited or shared, or who need protection or help in looking after their own affairs. Depending on the circumstances, this might continue for decades, and sometimes longer, passing when necessary to successive trustees.
Jurisdiction xv, 70 213 A territory with its own legal system. It could be:
A country or federation, like Australia, Canada, or the UK.

Part of a country or federation, like Scotland, Texas, or British Columbia.
Legislative counsel 70, 71, 138 An alternative name for parliamentary counsel.
Lessor, lessee; mortgagor, mortgagee 114, 246 A lease is granted by a lessor (landlord) to a lessee (tenant).

There is a common misconception that a bank grants a mortgage to a houseowner. In fact, the bank lends money to the owner and the owner mortgages the house to the bank as security for the loan. The house still belongs to the borrower (although it might not feel that way). So the owner is mortgagor and the bank is mortgagee.

A refugee used to be someone granted refuge.

Liquidator 83-4, 123, 235 239 The equivalent of a trustee in bankruptcy for a company "in liquidation" (the corporate equivalent of bankruptcy).
Miranda warnings 209 The American equivalent of the British caution is required by the 1996 Supreme Court decision in Miranda v. Arizona (para 469). The exact wording is not specified, and the details of what must be said vary between states. But Chief Justice Warren said in his judgment on behalf of the court:
The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court (our emphasis).
The "and will" is worrying. It might discourage suspects from making an exculpatory statement for fear that it will somehow be used against them.

Office of the Parliamentary Counsel 23, 40, 52 70, 144 173 In the UK, a civil service department, staffed by parliamentary counsel. They draft most of the parliamentary bills and some of the secondary legislation and act as consultants to those drafting their own bills. Similar departments exist in other common law jurisdictions.

Parliamentary counsel 23, 40 52, 70, 144 173 Lawyers who specialise in drafting legislation, either as civil servants or in private practice. They are also called legislative counsel.

Part 20 claim 14 In England and Wales, a claim governed by part 20 of the Civil Procedure Rules 1998.

Part 20 applies to claims brought by the defendant to a claim, broadly:
counterclaims by the defendant against the claimant; and

claims by the defendant against someone else whom the defendant says should take or share responsibility for the claimant's grievance.
Pleading 19-20 122, 153 205, 239 One of the formal documents in which the parties to an action set out their claims and defences with the essential facts that they hope to prove. The more detailed witness statements come later, after they exchange relevant documents.

Prove 178, 188 207 Prove is often used in common law jurisdictions to mean prove to the court's satisfaction. The level of certainty needed by the court varies according to the circumstances but will always admit the possibility of error:
Proof beyond reasonable doubt, which we discussed on pages 178-9, is the highest level, and is usually required to convict someone of a criminal offence.

Proof on the balance of probabilities is usually the standard for civil (that is, non-criminal) claims, and means more probable than not.

When evidence is uncontested, the fact that it's given under oath (or the equivalent of an oath) is usually sufficient. So an unchallenged will is proved by filing it in court with a supporting affidavit asserting its validity and giving the required details. If the application is made by one or more executors appointed by the will they receive the court's confirmation of their appointment in the form of a grant of probate.
Real and personal property 137 In England real property (otherwise known as realty) is freehold — but usually not leasehold — land (though the leasehold exceptions are complicated). In America both leaseholds and freeholds are realty. But as all property that isn't real is personal (or personalty), the phrase real and personal is redundant: all my property says it all.

Sever the joint tenancy in equity 193 To explain this we need to consider several independent technicalities. It is inevitably difficult but we have emboldened key terms to help show the thread running between the paragraphs and we tie the strands together in the last paragraph.

Equity has various different technical meanings. In this context equitable ownership is distinguished from ownership in law (legal ownership) (which is not to say that equitable ownership is in any way illegal. There are two strands in common law: (1) (strict) law, and (2) equity (which softens the hard edges to make the law fairer). The two strands were originally separate but were eventually merged into a single system, with equity trumping law.

The legal owners of property are those whose names are on the deeds, but if they own it as trustees they owe certain duties to the beneficiaries of that trust (the equitable owners). A trustee who is also a beneficiary owes those duties to the other beneficiaries. (Where two people buy their home together the strict analysis is that they own it as trustees and as beneficiaries (that is, they are trustees for themselves).

Co-owners can own property either:
jointly, which means that if one dies the survivors automatically inherit the dead one's share; or

in common, which means that the dead one's share passes by his or her will, or by the rules of intestacy if there is no will.
A joint owner in equity can change the equitable arrangement so that they own in common. This is called severing the joint tenancy. (Tenancy here has nothing to do with landlords: it just means holding (from the French), whether freehold or leasehold.)

Shared ownership lease 72 A lease designed to help those who can't afford to buy their home outright. They pay only part of the price for a corresponding share of the property, with the rent reduced accordingly and the right to buy more later. The seller-landlords retain the unbought share.

Statement of case 19 In England and Wales, the new name for a pleading under the Civil Procedure Rules 1998.
Trustee various One who holds property on behalf of another.
Trustee in bankruptcy 83-4, 123, 235 239 Someone (usually a court official or accountant) who holds the property of a bankrupt individual and divides it among those entitled, meanwhile administering it.
Winding up 204 Individuals can in some circumstances be made bankrupt (by order of the court) if unable or unwilling to pay their debts. The effect of the order is to vest all their property in a trustee in bankruptcy. The equivalent for companies is liquidation, the trustee in this case being known as the liquidator. In the UK the process of liquidation is also called "winding up".