Nepal Bar Advocate Exam key terms

A discretionary writ issued by a higher court ordering a lower court, tribunal, or public authority to send up its record so the decision can be reviewed and, if unlawful, quashed. In Nepal it is a constitutional writ under Article 133.

A writ commanding a public official, body, or lower court to perform a legal duty it has refused or failed to perform. It cannot be used against a private person or to enforce a discretionary power.

A writ requiring a person detaining another to produce the detainee before the court and justify the detention. It protects personal liberty against unlawful or arbitrary custody and is available to the detainee or any person on their behalf.

The legal right of a party to bring a matter before a court because they have a sufficient interest or are directly affected. Public-interest litigation in Nepal relaxes this requirement for constitutional questions affecting the public.

A proceeding brought not for a private grievance but to vindicate a public or constitutional interest, such as the rights of an unrepresented group. Nepali courts may entertain it on a relaxed standing test and issue directives or writs.

Policy goals in Part IV of the Constitution (Articles 49-51) that guide the State, such as social justice and equitable distribution. They are not directly enforceable in court but inform interpretation and legislation.

Guaranteed individual freedoms in Part III of the Constitution, including equality, freedom of expression, and the right to constitutional remedy. They are enforceable against the State, and some extend to private actors.

The principle that certain core features of the constitution, such as federalism, separation of powers, and fundamental rights, cannot be destroyed even by constitutional amendment. Nepali courts have invoked it to review amendments.

The power of courts to examine whether legislation, executive action, or administrative decisions conform to the constitution and law, and to declare them void if they do not. Distinct from appeal on the merits.

Latin for 'beyond the powers'. Describes an act by a public body or company that exceeds the authority conferred on it by statute, charter, or constitution, and is therefore invalid.

The rule that a final judgment on the merits bars the same parties from relitigating the same claim or issue in a later suit. It promotes finality and prevents vexatious repetition of litigation.

The rule that a court should not proceed with a suit while a previously instituted suit between the same parties on the same subject matter is pending before a competent court. It stays rather than dismisses the later suit.

The set of facts that gives a party the right to seek a legal remedy. It determines jurisdiction, the necessary parties, and whether a claim is barred by limitation or earlier adjudication.

The statutory time within which a suit, appeal, or application must be filed, calculated from the accrual of the cause of action. Expiry generally bars the remedy, though the underlying right may survive.

The guilty mind or mental element of an offence, such as intention, knowledge, or recklessness. Criminal liability generally requires proof of both the prohibited act and the required mental state.

The physical element of an offence: the prohibited conduct, omission, or consequence. It must be proved together with the mental element before a person can be convicted.

The obligation of a party to establish a fact or issue to the required standard. In criminal cases the prosecution bears it beyond reasonable doubt; in civil cases the claimant generally proves on a balance of probabilities.

The rule that an accused is treated as innocent until guilt is proved by the prosecution. It underpins the right to silence, the prosecution's burden, and the requirement of proof beyond reasonable doubt.

The degree of certainty a party must reach to win on an issue. Criminal cases require proof beyond reasonable doubt; civil and most administrative matters require a balance of probabilities or preponderance of evidence.

Release of an accused person from custody, with or without security, pending trial or appeal. Courts weigh the seriousness of the offence, risk of flight, and tampering with evidence.

An order sending an accused back into custody or returning a case to a lower court for further proceedings. In criminal procedure it usually involves judicial authorisation of continued detention during investigation or trial.

A clear expression of willingness to contract on stated terms, made with the intention that it becomes binding on acceptance. It must be communicated and remains open until accepted, rejected, revoked, or lapsed.

Unqualified agreement to all terms of an offer, communicated to the offeror. A counter-offer destroys the original offer; a request for information does not.

Something of value given by each party in exchange for the other's promise, such as money, goods, or a forbearance. It must be lawful but need not be adequate; past consideration is generally insufficient.

An expression inviting others to make offers, rather than an offer itself. Advertisements, catalogues, and goods displayed in a shop are usually invitations to treat, so the customer makes the offer.

A reply that varies the terms of the original offer and therefore operates as a new offer. It terminates the original offer, which cannot later be accepted unless renewed.

The rule that only parties to a contract may enforce it or be bound by it. Statutory and judicial exceptions allow third-party beneficiaries to enforce terms in defined circumstances.

Failure to perform a contractual obligation, whether by non-performance, defective performance, or repudiation. The innocent party may claim damages, specific performance, or terminate the contract.

An equitable remedy ordering a party to carry out its contractual promise, typically for unique goods or land where damages are inadequate. It is discretionary and refused where supervision is impractical.

A contractual clause excusing performance when an unforeseen event beyond the parties' control, such as natural disaster or war, prevents it. Its scope depends on the clause wording and applicable law.

Doctrine discharging a contract when an unforeseen event, without fault of either party, makes performance impossible or radically different from what was agreed. It operates by law, not by the parties' choice.

An estate in land of indefinite duration, giving the holder ownership subject to law and encumbrances. It contrasts with leasehold, which is a time-limited right of occupation.

A right to exclusive possession of land for a fixed term, usually granted in return for rent. The lessee holds an interest that can be transferred or mortgaged, subject to the lease terms.

A right enjoyed by one landowner over another's land, such as a right of way or drainage, without possessing it. It runs with the land and binds successors.

A security interest in property created to secure repayment of a debt, giving the lender rights to enforce against the property on default. The mortgagor retains ownership subject to the charge.

The foundational constitutional document of a company, stating its name, registered office, objectives, and liability structure. It governs the company's permitted scope and is filed with the registrar.

The internal rulebook of a company governing management, share transfers, meetings, and directors' powers. It is subordinate to the memorandum and to mandatory company law.

The body elected by shareholders to manage the company's affairs, set strategy, and appoint officers. Directors owe duties of care, loyalty, and good faith to the company.

The minimum number of members or directors who must be present for a meeting to transact valid business. Decisions taken without a quorum are generally invalid.

Property belonging to a woman, including gifts and assets acquired by her, over which she retains rights of ownership and disposal. Its treatment affects succession and matrimonial property disputes.

The legal division of jointly held property among co-owners, ending joint ownership and allotting specific shares. It may be by agreement or by court decree.

The transmission of a deceased person's property and rights to heirs, either under a will (testate) or by statutory rules (intestate). It determines who inherits and in what shares.

The judicial certification of a will's validity and the appointment of an executor. It authorises the executor to administer the estate according to the will.

An out-of-court statement offered to prove the truth of its content. It is generally inadmissible unless it falls within a recognised exception, because the maker cannot be cross-examined.

A statement by a party acknowledging a fact adverse to its case. It is generally admissible against that party as an exception to the hearsay rule but not in favour of the maker.

An admission by an accused that they committed the offence. It must be voluntary; confessions obtained by coercion, threat, or inducement are inadmissible.

A written statement of facts sworn or affirmed before a person authorised to administer oaths, such as a notary. It is used as evidence in defined proceedings and may expose the deponent to perjury liability.

The document by which a plaintiff institutes a civil suit, setting out the parties, facts, cause of action, and relief sought. It must comply with procedural rules and be accompanied by required documents.

The defendant's formal reply to a plaint, admitting, denying, or explaining the allegations and raising defences. Failure to raise a defence may bar it later.

A court order requiring a party to do or refrain from doing a specified act. Temporary injunctions preserve the status quo pending trial; permanent injunctions are granted as final relief.

The duty of an advocate to keep confidential all information received in the course of professional engagement, and the corresponding protection from compelled disclosure. It is a core professional obligation.

A situation where an advocate's personal, financial, or other interest, or a duty to another client, could compromise the loyal and independent representation of a client. It must be disclosed or the engagement declined.

Conduct by an advocate that breaches professional rules or the standards of the profession, such as dishonesty, neglect, or improper advertising. It may lead to disciplinary sanctions by the Bar Council.