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Sunday, May 14, 2017

Latin Legal Terms for Genealogists -- Part Ten

Well, the list of Latin Legal Terms seems to have taken a vacation for a while, but it is now back and well rested [bene quievit].

Perhaps it is a good idea to review the idea behind this list of Latin terms. Genealogists who do research into legal and church documents in any time period, up to and including the present, will run into a plethora of legal terms in Latin. This is especially true for countries in Europe. For this reason, I began explaining and analyzing some of the more common Latin legal terms. This is part 10 of the series.

For a side note, a legal term expressed in Latin is called a "brocard." The interesting thing here is that these Latin terms are used in court even today but they will also be found by genealogists doing research.

Here we go:

per capita literally "by head"
You are most likely to run into this term in conjunction with a probate file. It refers to the division of the property equally between a number of beneficiaries. When I was introduced to probate in law school, I ran into my first heavy dose of Latin.

pendente lite literally "while the litigation is pending"
This turns out to be a fairly common term, enough so, that the English translation is rarely used. I would not say that this word has passed into the English language because those who use the term are aware that they are using a Latin phrase. I'm also aware that, outside of the legal profession, this term would be rarely used. The term refers to certain court orders that are entered to provide relief to one or more of the parties anticipating a final judgment. Although I stopped handling divorce cases many, many years ago, interim court rulings are common in these matters. Not all court rulings made during the course of a lawsuit are considered to be pendente lite unless they affect the legal position of the parties. The adverbial form of this phrase is lis pendens, which I will address some time in the future.

pater familias literally "father of the family"
This particular term is archaic even for Latin phrases. Most of the terms that I am considering here could be found in modern legal documents. This phrase has a very narrow use in today's law but could be encountered in older documents. It is used to designate the "head of household" when considering the rights and responsibilities thereof. I understand that it is also used in the phrase "bonus paterfamilias"  to refer to a standard of care equivalent to the ordinary "reasonable man." The reasonable man concept has been discussed extensively in court literature and despite all of this discussion nobody knows what it really is. Current political correctness has modified the "reasonable man" theory to the "reasonable person" theory. You can find thousands of references to this legal theory by searching for "reasonable person." But if you want to find older discussions of the subject you need to search for "reasonable man."

parens patriae literally "parent of the nation"
This term refers to the situation where the court, on behalf of the state, acts as the parent for a dependent child when the legal parents are unwilling or unable to assume that responsibility. Since this is the actual legal term for that situation, it is used more frequently than other Latin terms.

obiter dictum literally "a thing said in passing"
 In law, an observation by a judge on some point of law not directly relevant to the case before him, and thus neither requiring his decision nor serving as a precedent, but nevertheless of persuasive authority. In general, any comment, remark or observation made in passing in a written court decision. See Wikipedia: Obiter dictum. The phrases often shortened to "dictum" in speaking and in the legal literature. Quoting from the Wikipedia article:
A judicial statement can be ratio decidendi only if it refers to the crucial facts and law of the case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law issues, are obiter dicta. Obiter dicta (often simply dicta, or obiter) are remarks or observations made by a judge that, although included in the body of the court's opinion, do not form a necessary part of the court's decision. In a court opinion, obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument". Unlike ratio decidendi, obiter dicta are not the subject of the judicial decision, even if they happen to be correct statements of law. The so-called Wambaugh's Inversion Test provides that to determine whether a judicial statement is ratio or obiter, you should invert the argument, that is to say, ask whether the decision would have been different, had the statement been omitted. If so, the statement is crucial and is ratio; whereas if it is not crucial, it is obiter.
If you can understand what is said above, you are well on your way to becoming a lawyer. After that explanation, I think it is time to stop for today.

Here are the previous posts in this series.

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