ICLTE flashcards
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32 cards. Read the term and the definition here. The deck at the top of this page is optional.
- Stare decisis
- The doctrine that courts must follow legal principles established by previous decisions of higher courts in the same hierarchy, ensuring consistency and predictability in the law.
- Ratio decidendi
- The legal reasoning essential to a court's decision. It binds lower courts in later cases with materially similar facts and must be distinguished to be avoided.
- Obiter dictum
- A remark by a judge that is not necessary to the decision reached. It is persuasive only and carries no binding authority in later cases.
- Mixed jurisdiction
- A legal system combining civil-law and common-law features, as in Scotland, South Africa, Quebec, Louisiana and Puerto Rico, where both codified and precedent-based reasoning operate.
- Lex specialis
- The interpretive rule that a specific provision prevails over a general provision dealing with the same subject matter, resolving apparent conflicts without invalidating either rule.
- Actus reus
- The prohibited physical conduct, or a failure to perform a legal duty, that together with mens rea constitutes a criminal offence.
- Balance of probabilities
- The civil standard of proof, requiring the party bearing the burden to show that its version of the facts is more likely true than not.
- Res judicata
- The principle that a final judgment on the merits bars the same parties from relitigating the same claim or cause of action before another court.
- Representation versus warranty
- A representation is a pre-contractual statement of fact inducing the contract; a warranty is a promise within the contract whose breach gives rise to damages.
- Indemnity versus guarantee
- An indemnity is a primary obligation to make good specified losses; a guarantee is a secondary obligation to answer for another party's default under an underlying obligation.
- Without prejudice
- A label marking genuine settlement negotiations as inadmissible in evidence, protecting the parties' negotiating positions if the discussions ultimately fail.
- Term of art
- A word or phrase with a fixed technical legal meaning that prevails over its ordinary-language sense, such as consideration, estoppel, lien or trust.
- Functional equivalence
- A translation approach reproducing the legal effect of the source text in the target system rather than its literal wording or sentence structure.
- False friend
- A source-language term resembling a target-language word but carrying a different meaning, such as French éventuel, which means possible rather than eventual.
- Sworn translation
- A translation signed and stamped by a translator authorised in the jurisdiction, certifying that it faithfully and completely reproduces the source document.
- Translationese
- Unnatural target-language phrasing produced by copying source syntax, marked by gratuitous calques, inconsistent terminology and abnormal collocations in legal texts.
- IRAC
- An analysis structure of Issue, Rule, Application and Conclusion, in which the Application section ties the facts to each element of the rule.
- Entire agreement clause
- A boilerplate provision stating that the written contract supersedes all prior negotiations, understandings and representations, preventing reliance on pre-contractual statements.
- Severability clause
- A provision preserving the remainder of the contract if one term is held invalid or unenforceable, so the whole agreement is not voided.
- Letter before action
- A pre-litigation demand letter stating the claim, its legal basis, the remedy sought and a compliance deadline before court proceedings are issued.
- Undertaking
- A personal, enforceable promise given by a lawyer in the course of practice; breach may be enforced by the court and by the regulator.
- Legal professional privilege
- The client's right to withhold confidential lawyer-client communications from disclosure in legal proceedings; only the client may waive it.
- Conflict of interest
- A situation where a lawyer's own interest or another client's interest creates a material risk of harm to the client's representation or confidentiality.
- Client account
- A bank account designated to hold client money separately from the firm's own funds, subject to reconciliation, audit and jurisdiction-specific accounting rules.
- Chinese wall
- An information barrier within a firm that prevents a conflicted lawyer from accessing or sharing information about a matter handled by others.
- Substantially related test
- The standard for former-client conflicts: the new matter must be materially related to the earlier representation and adverse to the former client.
- Imputed conflict
- A conflict attributed to the entire firm because one of its lawyers is personally conflicted, potentially disqualifying the whole firm from acting.
- Advance waiver
- A client's prospective consent to future conflicts, enforceable only if informed, specific as to conflict type and given by a sophisticated client.
- Translation memory
- A database storing previously translated source and target segments, returning exact and fuzzy matches for reuse in later projects.
- Four-eyes principle
- The requirement that a second qualified person independently reviews work before release, checking it against defined criteria to catch the drafter's errors.
- Fuzzy match
- A translation-memory match scoring below 100 percent, which the translator must edit and verify rather than accept without review.
- Metadata scrubbing
- Removing hidden document properties such as author name, comments, tracked changes and hidden text before releasing a file outside the firm.