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dutch auction 1. An auction in which property is initially offered at an excessive price that is gradually lowered until the property is sold. 2. An auction in which several identical items are offered simultane~ ously, one to a bidder, and sold to the highest bidders for the amount of the lowest winning bid. 3. Securities. A method of tendering stock shares whereby a corporation provides a price range, shareholders indicate how many shares they will sell and at what price, and the corporation buys however many shares it wants at the lowest prices offered. - Also termed Dutch-auction tender method. 4. Securities. An auction ofsecurities, usu. other than stock, in which a security's price is gradually lowered until it meets an acceptable bid and is sold. 5. Securities. An auction of a new issue of stock in which there is a stated minimum price per share, but bidders may offer a higher price for any number of shares until the highest price offered becomes the final price at which all the shares issued will be sold. - Also termed (in sense 4) offer for sale by tender.

dutch auction- See AUCTION.

dutch lottery See LOTTERY.

dutch-auction tender method See Dutch auction (3) under AUCTION.

dutiable (d[y]oo-tee-a-baI), adj. Subject to a duty <dutiable goods>.

duty 1. A legal obligation that is owed or due to another and that needs to be satisfied; an obligation for which somebody else has a corresponding right. "There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability: it necessarily begs the essential question .... [M)any factors interplay: the hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where loss should fall." William L. Prosser, Paisgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953). "A classic English definition [of duty] from the late nineteenth century holds that, when circumstances place one individual in such a position with regard to another that thinking persons of ordinary sense would recognize the danger of injury to the other if ordinary skill and care were not used, a duty arises to use ordinary skill and care to avoid the injury. A much quoted American judicial definition of duty emphasizes its relational aspects, with a focus on the foreseeability of risk to those 'Within the range of apprehension.' At about the same time, one of the most creative of American law teachers defined duty as a complex of factors, including administrative, economic, and moral ones, to be applied by judges in their analyses of the legal strength of personal injury cases." Marshall S. Shapo, The Duty to Actxi-xii (1977). "While courts frequently say that establishing 'duty' is the first prerequisite in an individual tort case, courts commonly go on to say that there is a 'general duty' to exercise reasonable care,' to avoid subjecting others to 'an unreasonable risk of harm,' or to comply with the 'legal standard of reasonable conduct.

duty judge See JUDGE.

duty judge A judge responsible for setting an arrestees bail, usu. by telephone or videoconference.

duty of candor and good faith A patent appJicant's responsibility to disclose to the U.S. Patent and Trademark Office all known information relevant to the invention's patentability, esp. prior art, novelty, and embodiment. If an applicant fails to be candid in disclosing all relevant information, the PTO may reject the application. If the patent is issued and undisclosed but relevant information is discovered later, the patent may be invalidated, and the applicant charged with fraud on the PTO, even if the undisclosed information might not have barred the patent's issuance. 37 CFR 1.56.

duty of care See DUTY (3).

duty of detraction A tax on property acquired by succession or will and then removed from one state to another.

duty of fair representation A labor union's duty to represent its member employees fairly, honestly, and in good faith.

duty of good faith and fair dealing A duty that is implied in some contractual relationships, requiring the parties to deal with each other fairly, so that neither prohibits the other from realizing the agreement's benefits. See GOOD FAITH; BAD FAITH.

duty of loyalty A person's duty not to engage in selfdealing or otherwise use his or her position to further personal interests rather than those of the beneficiary. For example, directors have a duty not to engage in self-dealing to further their own personal interests rather than the interests of the corporation.

duty of the flag A maritime ceremony by which a foreign vessel struck her flag and lowered her topsail upon meeting the British flag. The ceremony was an acknowledgment of British sovereignty over the British seas.

duty of tonnage (tan-ij). See tonnage duty under DUTY (4).

duty of water The amount of water necessary to irrigate a given tract.

duty ofcandor (kan-dar). A duty to disclose material facts; esp., a duty of a director seeking shareholder approval of a transaction to disclose to the shareholders all known material facts about the transaction.

duty on import See import duty under DUTY (4).

duty to act A duty to take some action to prevent harm to another, and for the failure of which one may be liable depending on the relationship of the parties and the circumstances.

duty to defend The obligation ofan insurer to provide an insured with a legal defense against claims of liability, within the terms of the policy. The duty to defend applies if the terms of the policy and the facts of the claim allow an ambiguity about whether the insurer will have a duty to indemnify the insured. It does not apply if no such ambiguity exists.

duty to indemnify An obligation to compensate another for the other's loss. The duty arises under the terms of an agreement, which governs the extent of the duty. An insurance policy is fundamentally an indemnification agreement, but the duty is often made a part of other contracts as well.

duty to mitigate (mit-i-gayt). A nonbreaching party's or tort victim's duty to make reasonable efforts to limit losses resulting from the other party's breach or tort. Not doing so precludes the party from collecting damages that might have been avoided. See MITIGATION-OF-DAMAGES DOCTRINE.

duty to settle The obligation of an insurer to negotiate and settle third-party claims against an insured in good faith.

duty to speak A requirement (not strictly a duty) to say something to correct another's false impression. For example, a duty to speak may arise when a person has, during the course of negotiations, said something that was true at the time but that has ceased to be true before the contract is signed.

duty-bound Required by legal or moral obligation to do something <Jones is duty-bound to deliver the goods by Friday>.

duty-free Of or relating to products offoreign origin that are not subject to import or export taxes.

duty-to-defend clause A liability-insurance provision obligating the insurer to take over the defense of any lawsuit brought by a third party against the insured on a claim that falls within the policy's coverage. See duty to defend under DUTY (1).

duumviri (d[y]oo-am-va-n), n. pl. [fr. Latin due "two" + viri "men"), 1. Roman law. Magistrates elected or appointed in pairs to hold an office or perform a function.

duumviri navales (d[y]oo-am-va-ri na-vay-leez). [Latin], Two officers appointed to man, equip, and refit the navy. 2. Two peers in authority. - Also termed duoviri.

duumviri municipales (d[y]oo-am-va-ri myoo-nis-a-pay-leez). [Latin), Two judicial magistrates annually elected in towns and colonies.

duunage (dan-ij). Anything, esp. pieces of wood, that are put underneath or between cargo on a vessel to prevent the cargo from bruising or getting wet from water leaking into the hold.

dux (daks), n. [fr. Latin ducere "to lead"], 1. Roman law. An army commander. 2. Roman law. A military governor of a province. This term was eventually used also as a title of distinction. 3. Duke; a title of nobility. See DUKE.

dwai abbr. Driving while ability-impaired. See DRIVING UNDER THE INFLUENCE.

dwell 1. To remain; to linger <the case dwelled in her memory>. 2. To reside in a place permanently or for some period <he dwelled in California for nine years>.

dwelling defense See CASTLE DOCTRINE.

dwelling defense- See CASTLE DOCTRINE.

dwelling-house 1. The house or other structure in which a person lives; a residence or abode. 2. Real estate. The house and all buildings attached to or connected with the house. 3. Criminal law. A building, a part of a building, a tent, a mobile home, or another enclosed space that is used or intended for use as a human habitation. The term has referred to connected buildings in the same curtilage but now typically includes only the structures connected either directly with the house or by an enclosed passageway. Often shortened to dwelling. Also termed (archaically) mansion house; (more broadly) dwelling place.

dwelling-house- See DWELLING-HOUSE.

dwi abbr. DRIVING WHILE INTOXICATED.

dwop (dee-wop or doo-wop). abbr. See dismissal for want ofprosecution under DISMISSAL (1).

dwop docket A list of cases that the court has set for possible dismissal for want of prosecution. Also termed doowop docket; DLOP docket. See dismissal for want ofprosecution under DISMISSAL (1).

dwop docket- See DOCKET (2).

dyarchy (di-ahr-kee), n. [fr. Greek dy "two" + archein "rule"], A government jointly ruled by two people, such as William and Mary of England. - Also termed diarchy. "Dyarchy. A term applied by Mommsen to the Roman principate ... a period in which he held that sovereignty was shared between the princes and the senate. The term has also been given to a system of government, promoted as a constitutional reform in India by Montagu and Chelmsford and introduced by the Government of India Act, 1919. It marked the introduction of democracy into the executive of the British administration of India by dividing the provincial executives into authoritarian and popularly responsible sections composed respectively of councillors appointed by the Crown and ministers appointed by the governor and responsible to the provincial legislative councils .... The system ended when full provincial autonomy was granted in 1935." David M. Walker, The Oxford Companion to Law 386 (1980).

dyathanasia (di-ath-a-nay-zha), n. The act of permitting death to occur naturally by withholding, terminating, or not offering life-prolonging treatments or intervention. Also termed passive mercy killing. See EUTHANASIA.

dyer act A federal law, enacted in 1919, making it unlawful either (1) to transport a stolen motor vehicle across state lines, knowing it to be stolen, or (2) to receive, conceal, or sell such a vehicle, knowing it to be stolen. 18 USC A §§ 2311-2313. Also termed National Motor Vehicle Theft Act.

dyet See DIET.

dying declaration A statement by a person who believes that death is imminent, relating to the cause or circumstances of the person's impending death. The statement is admissible in evidence as an exception to the hearsay rule. Also termed deathbed declaration; ante mortem statement. "[A] rule peculiar to criminal cases is the exception to the rule respecting hearsay evidence which renders dying declarations as to the cause of death admissible in trials for murder or manslaughter.... The earliest emphatic state· ment of it ... is to be found in Woodcock's case, decided in 1789 .... This case refers to a decision in 1720 ... and to the case of R. v Reason and Tranter, decided in 1722. That case, however, says nothing as to any limitation on the rule. A series of cases from 1678 to 1765 show that during that period declarations of deceased persons as to the cause of their death were admitted even though the declarants had hopes of recovery when they were made." 1 James Fitzjames Stephen, A History of the Criminal Law of England 447-48 (1883).

dying declaration- See DECLARATION (6).

dying without issue See FAILURE OF ISSUE.

dynamite charge See ALLEN CHARGE.

dynamite instruction See ALLEN CHARGE.

dynasty 1. A powerful family line that continues for a long time <an Egyptian dynasty>. 2. A powerful group of individuals who control a particular industry or field and who control their successors <a literary dynasty> <a banking dynasty>.

dynasty trust See TRUST.

dysnomy (dis-na-mee), n. [fr. Greek dys "bad" + nomos "law"], The enactment of bad legislation. Cf. EUONOMY.

dyvour (di-var). Scots law. A person who is heavily in debt or bankrupt.

e contra (ee kon-tra). [Latin], On the contrary.

e conversoe e convers (ee kan-var-soh). [Latin], Conversely; on the other hand; on the contrary.

e mera gratia (ee meer-a gray-shee-a). [Latin], Out of mere grace or favor.

e pili ana (ay pee-lee ah-nah). [Hawaiian] Adjoining. This term usu. refers to land that adjoins a stream.

e pluribus unum (ee ploor-a-bas [y]oo-nam). [Latin], One out of many.o This is the motto on the official seal of the United States and on several U.S. coins.

e reorganization See REORGANIZATION (2).

E reorganization A reorganization involVing a recapitalization.

e.d abbr. Eastern District, in reference to U.S. judicial districts.

e.g. abbr. [Latin exempli gratia], For example <an intentional tort, e.g., battery or false imprisonment>. Cf.LE.

e.o.m abbr. End of month. This appears as a payment term in some sales contracts.

ea intentione (ee-a in-ten-shee-oh-nee). [Latin], With that intent.

eadem persona cum defuncto (ee-ay-dam par-soh-na kam di-fangk-toh). [Law Latin]. The same person as the decedent. An heir having full title to the decedent's property was legally viewed to be the same person as the decedent.

eaja abbr. EQUAL ACCESS TO JUSTICE ACT.

earl A title of nobility, formerly the highest in England but now the third highest, ranking between a marquis and a viscount. This title corresponds with the French comte and the German graf Originating with the Saxons, this title is the most ancient of the English peerage. William the Conqueror first made the title hereditary, giving it in fee to his nobles. No territorial, private, or judicial rights now accompany the title; it merely confers nobility and a hereditary seat in the House of Lords.

earl marshal of england A great officer of state, who historically had jurisdiction over several courts, including the court of chivalry and the court of honor. Under this office is the herald's office, or college of arms. The Earl Marshal was also a judge of the Marshalsea court, now abolished. This office is quite ancient. Since 1672, it has been hereditary in the family of Howards, Dukes of Norfolk. Often shortened to Earl Marshal.

earldom The dignity or jurisdiction of an earl. Only the dignity remains now, the jurisdiction haVing been given over to the sheriff. See DIGNITY.

earles-penny Money given in part payment; EARNEST. Also termed earl's penny.

earl's penny See EARLES-PENNY.

early voting See VOTING.

earmark 1. Originally, a mark upon the ear a mode of marking sheep and other animals. "When now·a·days we say that 'money has no ear-mark,' we are alluding to a practice which in all probability played a large part in anCient law. Cattle were ear-marked or branded, and this enabled their owner to swear that they were his in whosesoever hands he might find them. The legal supposition is, not that one ox is in distinguishable from another ox, but that all oxen, or all oxen of a certain large class, are equivalent. The possibility of using them as money has rested on this supposition." 2 Frederick Pollock & Frederic William Maitland, History of English Law Before the Time of Edward 1151-52 (2d ed. 1899). 2. A mark put on something (such as a coin) to distinguish it from another.

earmark- 1. To mark with an earmark. 2. To set aside for a specific purpose or recipient.

earmarking doctrine An equitable principle that when a new lender makes a loan to enable a debtor to payoff a specified creditor, the funds are specifically set aside for that creditor so that, if the debtor lacks control over the disposition of the funds, they do not become part of the debtor's estate and thus subject to a preference.

earn vb. (bef. 12c) 1. To acquire by labor, service, or performance. 2. To do something that entitles one to a reward or result, whether it is received or not.

earned surplus See retained earnings under EARNINGS.

earned income See INCOME.

earned income- Money derived from one's own labor or active participation; earnings from services. Cf. unearned income (2).

earned land See LAND.

earned land Public land that is conveyed by a land patent to a private person who has performed a certain condition, usu. one spelled out in an earlier grant. See PATENT (2).

earned premium See PREMIUM (1).

earned premium The portion of an insurance premium applicable to the coverage period that has already expired. For example, if the total premium for a one-year insurance policy is $1,200, the earned premium after three months is $300.

earned surplus See retained earnings under EARNINGS.

earned time See TIME.

earned-income credit A refundable federal tax credit on the earned income of a low-income worker with dependent children. The credit is paid to the taxpayer even if it exceeds the total tax liability. See IRC (26 USCA) § 32. - Abbr. ErC.

earned-income credit See TAX CREDIT.

earner 1. One who produces income through personal efforts or property or both. 2. Property or an asset that produces income for its owner.

earnest 1. A nominal payment or token act that serves as a pledge or a sign of good faith, esp. as the partial purchase price ofproperty. Though not legally necessary, an earnest may help the parties come to an agreement. 2. EARNEST MONEY.

earnest money A deposit paid (often in escrow) by a prospective buyer (esp. of real estate) to show a good-faith intention to complete the transaction, and ordinarily forfeited if the buyer defaults. Although earnest money has traditionally been a nominal sum (such as a nickel or a dollar) used in the sale of goods, it is not a mere token in the real-estate context: it is generally a percentage of the purchase price and may be a substantial sum. - Also termed earnest; bargain money; caution money; hand money. Cf. BINDER (2); down payment under PAYMENT. "The amount of earnest money deposited rarely exceeds 10 percent of the purchase price, and its primary purpose is to serve as a source of payment of damages should the buyer default. Earnest money is not essential to make a purchase agreement binding if the buyer's and seller's exchange of mutual promises of performance (that is, the buyer's promise to purchase and the seller's promise to sell at a specified price and terms) constitutes the consideration for the contract." John W. Reilly. The Language of Real Estate 131 (4th ed. 1993).

earnest-penny See GOD's PENNY.

earning asset (usu. pI.) An asset (esp. of a bank) on which interest is received. Banks consider loans to be earning assets.

earning asset- See ASSET.

earning capacity A person's ability or power to earn money, given the person's talent, skills, training, and experience. Earning capacity is one element considered when measuring the damages recoverable in a personal-injury lawsuit. And in family law, earning capacity is considered when awarding child support and spousal maintenance (or alimony) and in dividing property between spouses upon divorce. - Also termed earning power. See LOST EARNING CAPACITY.

earnings Revenue gained from labor or services, from the investment of capital, or from assets. See INCOME.

earnings and profits Corporations. In corporate taxation, the measure of a corporation's economic capacity to make a shareholder distribution that is not a return ofcapital. The distribution will be dividend income to the shareholders to the extent ofthe corporation's current and accumulated earnings and profits. Cf. accumulated-earnings tax under TAX; accumulated taxable income under INCOME.

earnings before interest and taxes Corporations. A company's income calculated without deductions for interest expenses and taxes, used as a measure of the company's ability to generate cash flow from ongoing operations.- Abbr. EBIT.