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facias (fay-shee-as). [Law Latin]. That you cause. Facias is used in writs as an emphatic word. See FIERI FACIAS; LEVARI FACIAS; SCIRE FACIAS. It also appears in the phrase ut facias ("so that you do"). See DO UT FACIAS; FACIO UT DES; FACIO UT FACIAS.

facies (fay-shee-eez). [Latin]. The outward appearance or surface of a thing.

facilitate vb. Criminal law. To make the commission of a crime easier. Property (such as a vehicle or home) that facilitates the commission of certain offenses may be forfeited. - facilitator, n.

facilitated negotiation See MEDIATION,

facilitation 1. The act or an instance of aiding or helping; esp., in criminal law, the act of making it easier for another person to commit a crime. 2. CONCILIATION.

facility and circumvention Scots law. Conduct intended to persuade a person vulnerable to outside influence to act against his or her own interest. Any contract brought under conditions of facility and circumvention would be void. Sometimes shortened to facility.

facility-of-paymentdause 1. Insurance. An insurancepolicy provision allowing the appointment of a person to receive payment from the insurer on the beneficiary's behalf. 2. A trust provision that allows anyone who owes money to an incapacitated trust beneficiary to discharge the debt by paying the money owed to the custodial trustee.

facio utfacias (fay-shee-oh at fay-shee-as). [Latin "I do that you may do"]. Civil law. 1. An innominate contract in which a person agrees to do something for another person who agrees to do something in return, such as an agreement to marry. 2. The consideration in such a contract. See innominate contract under CO~TRACT. "These valuable considerations are divided by the civilians into four species ....The second species is, facio, ut facias: as when I agree with a man to do his work for him, if he will do mine for me; or if two persons agree to marry together; or to do any positive acts on both sides. Or, it may be to forbear on one side in consideration of something done on the other; as, that in consideration A, the tenant, will repair his house, B, the landlord, will not sue him for waste." 2 William Blackstone, Commentaries on the Laws of England 444 (1766).

facio ut des (fay-shee-oh at deez). [Latin "I do so that you give"]. Civil law. 1. An innominate contract in which a person agrees to do something for recompense. See innominate contract under CONTRACT. 2. The consideration in such a contract.

facsimile (fak-sim-a-lee). 1. An exact copy. 2. FAX.

facsimile signature See SIGNATURE.

facsimile signature 1. A signature that has been prepared and reproduced by mechanical or photographic means. 2. A signature on a document that has been transmitted by a facsimile machine. See FAX.

facsimile transmission See FAX (l). 2. See FAX (3).

fact 1. Something that actually exists; an aspect of reality <it is a fact that all people are mortal>. Facts include not just tangible things, actual occurrences, and relationships, but also states of mind such as intentions and opinions. 2. An actual or alleged event or circumstance, as distinguished from its legal effect, consequence, or interpretation <the jury made a finding of fact>. 3. An evil deed; a crime <an accessory after the fact>. "A fact is any act or condition of things, assumed (for the moment) as happening or existing." John H. Wigmore, A Students' Textbook of the Law of Evidence 7 (1935).

fact in evidence A fact that a tribunal considers in reaching a conclusion; a fact that has been admitted into evidence in a trial or hearing. - Also written fact-in-evidence. Also termed evidentiary fact. "A fact-in-evidence, or, briefly, evidence, signifies any facts considered by the tribunal as data to persuade them to reach a reasoned belief upon a probandum. This process of thought by which the tribunal reasons from fact to proban· dum is termed inference." John H. Wigmore, A Students' Textbook of the Law of Evidence 7 (1935).

fact in pais See ancient fact.

fact interrogatory See identification interrogatory under INTERROGATORY.

fact interrogatory See identification interrogatory.

fact issue See issue offact.

fact issue See issue of fact under ISSUE (1).

fact itt issue (usu. pl.), 1. A fact that one party alleges and that the other controverts. 2. A fact to be determined by a fact-finder; PROBANDUM. - Also written fact-in-issue. Also termed principal fact. "A fact-in-issue is a fact as to the correctness of which the tribunal, under the law of the case, must be persuaded; the term 'probandum' (thing to be proved) will here be used as the convenient single word." John H. Wigmore, A Students' Textbook of the Law of Evidence 7 (1935).

fact material to risk Insurance. A fact that may increase the risk and that, if disclosed, might induce the insurer either to decline to insure or to require a higher premium.

fact pleading See code pleading.

fact pleading See code pleading under PLEADING (2).

fact question See QGESTION OF FACT.

fact work product See WORK PRODUCT.

facta (fak-ta). [Latin], pl. FACTUM.

fact-finder One or more persons - such as jurors in a trial or administrative-law judges in a hearing who hear testimony and review evidence to rule on a factual issue. Also termed finder offactifact-trier or trier offact (in a judicial proceeding); fact-finding board (for a group or committee). See FINDING OF FACT.

fact-finding 1. The process of taking evidence to determine the truth about a disputed point of fact. 2. Int'l law. The gathering of information for purposes of international relations, including the peaceful settlement of disputes and the supervision of international agreements. Examples of fact-finding include legislative tours to acquire information needed for making decisions at an international level. Also termed inquiry. "[F]act-finding must be as impartial and as fair to the parties as procedural and evidentiary rules can render it without making the inquiry's task impossible, not merely for ethical reasons, but in order to maximize the credibility and impact of the facts found. To this end, fact-finders must develop procedures that sharply distinguish them from those bodies that assemble prosecutorial evidence." Thomas M. Franck &. H. Scott Fairley, Procedural Due Process in Human Rights Fact-Finding by International Agencies, 74 Am. j. Int'l L. 308, 310 (1980). 3. A method of alternative dispute resolution in which an impartial third party determines and studies the facts and positions of disputing parties that have reached an impasse, with a view toward clarifying the issues and helping the parties work through their dispute.

fact-finding board See FACT-FINDER.

factio testamenti (fak-shee-oh tes-ta-men-ti). See TESTAMENTI FACTIO.

faction A number of citizens, whether a majority or a minority, who are united and motivated by a common impulse or interest that is adverse to the rights of others or to the permanent or aggregate interests of the community. This definition is adapted from The Federalist, No. 10.

facto (fak-toh), adj. In or by the fact. See DE FACTO; IPSO FACTO.

facto et animo (fak-toh et an-d-moh). [Latin] In fact and intent <taking possession facto et animo>.

factor 1. An agent or cause that contributes to a particular result <punishment was a factor in the court's decision>. 2. An agent who is employed to sell property for the principal and who possesses or controls factual presumption the property; a person who receives and sells goods for a commission <a factor was employed to sell goods for the company> .o A factor differs from a broker because the factor possesses or controls the property. Also termed commission merchant; del credere bailiff. Cf. BROKER. "A factor by the rules of common law and of mercantile usage is an agent to whom goods are consigned for the purpose of sale, and he has possession of the goods, power to sell them in his own name, and a general discretion as to their sale. He may sell them on the usual terms of credit, may receive the price, and give a good discharge to the buyer." William R. Anson, Principles of the Law of Contract 523 (Arthur L. Corbin ed., 3d Am. ed. 1919). 3. One who buys accounts receivable at a discount <the company sold its receivables to a factor at only 5% of their stated value>. 4. A garnishee <the factor held $400 of the debtor's property when the writ of garnishment was served>. 5. A person in charge of managing property, esp. real property.

factorage 1. The compensation paid to a factor for his or her services. 2. The business of a factor.

factoring The buying of accounts receivable at a discount. The price is discounted because the factor (who buys them) assumes the risk ofdelay in collection and loss on the accounts receivable.

factorize (fak-ta-riz), vb. 1. GARNISH (2). 2. GARNISH (3). - factorization, n.

factorizing process A procedure or legal process by which a third party, rather than the creditor, attaches a debtor's property; GARNISHMENT. - Also termed trustee process; process by foreign attachment. "In Vermont and Connecticut, the [garnishee] is also sometimes called the factor, and the process [of garnishing], factorizing process." Charles D. Drake, A Treatise on the Law of Suits by Attachment in the United States § 451, at 386 (7th ed. 1891).

factor's act A statute protecting one who buys goods from a factor or agent by creating the presumption that the agent was acting on the owner's behalf and with the owner's approval.

factor's lien See LIEN.

factory act A statute that regulates workers' hours, health, and safety. See FAIR LABOR STANDARDS ACT.

fact-trier See FACT-FINDER.

factual cause See but-for cause.

factual cause- See but-for cause under CAUSE (1).

factual impossibility See IMPOSSIBILITY.

factual impossibility- Impossibility due to the fact that the illegal act cannot physically be accomplished, such as trying to pick an empty pocket.Factual impossibility is not a defense to the crime of attempt. Also termed physical impossibility; impossibility of fact.

factual presumption See presumption of fact.

factual presumption See presumption of fact under PRESUMPTION.

factum (fak-tam), n. [Latin], 1. A fact, such as a person's physical presence in a new domicile. 2. An act or deed, such as the due execution of a will. Over time, factum in this sense came to mean "charter" that is, the act or deed of conveying land, reduced to written form. See fraud in the factum under FRAUD. "lilt is only a short step to holding as a matter of law that a deed' and by a deed (fet, factum) men are beginning to mean a sealed piece of parchment ~has an operative force of its own which intentions expressed, never so plainly, in other ways have not. The sealing and delivering of the parchment is the contractual act. Further, what is done by 'deed' can only be undone by 'deed.'" 2 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward I 220 (2d ed. 1899).

factum imprestabile (fak-tam im-pres-tay-ba-lee). [Law Latin]. An act that cannot be performed; an impossibility.

factum juridicum (fak-tam juu-rid-i-kam). [Latin] A juridical fact.

factum of a will The formal ceremony of making a will; a will's execution by the testator and attestation by the witnesses.

factum probandum (fak-trim pra-ban-dam). [Latin]. A fact to be proved. "Evidence is always a relative term. It signifies a relation between two facts, the factum probandum, or proposition to be established, and the factum probans, or material evidencing the proposition. The former is necessarily to be conceived of as hypothetical; it is that which the one party affirms and the other denies, the tribunal being as yet not committed in either direction. The latter is conceived of for practical purposes as existent and is offered as such for the consideration of the tribunal. The latter is brought forward as a reality for the purpose of convinci ng the tribunal that the former is also a reality." John Henry Wigmore, Evidence in Trials at Common Law § 2, at 14-15 (Peter Tillers ed., 1983).

factum probans (fak-tam proh-banz). [Latin], A probative or evidentiary fact; a subsidiary fact tending to prove a principal fact in issue.

factum proprium et recens (fak-tam proh-pree-am et ree-senz). [Law Latin]. One's own act recently performed. 3. A statement of facts. 4. BRIEF (1). PI. facta.

facultative certificate (fak-al-tay-tiv). Insurance. A contract of reinsurance separately negotiated to cover risks under a single insurance policy. Facultative reinsurance allows the reinsurer the "faculty" of assessing and possibly rejecting a particular risk (esp. if underwriting information is inadequate).

facultative reinsurance See REINSURANCE.

facultative reinsurance Reinsurance of an individual risk at the option (the "faculty") of the reinsurer.

faculties 1. An authorization granted to a person to do what otherwise would not be allowed. 2. The extent of a husband's estate; esp., the ability to pay alimony. See ALLEGATION OF FACULTIES.

faculties, court of See COliRT OF FACULTIES.

faculties, master of the See MASTER OF THE FACULTIES.

faculty of advocates The society comprising the members of the Scottish bar. Unlike the English bar, the advocates do not have chambers, but all share the facilities of Advocates' Library in Parliament House.

faderfium (fah-thar-fee-am).A marriage gift to the bride from her father or brother.

fadle (jas-dl), al). Scots law. (Of a mentally deficient person) so susceptible to outside influence as to need legal protection (such as a guardian).

faeder-feoh (fah-thar-fee). Property brought by a wife to her husband at marriage. If the husband died, the property reverted to the widow if the heir of the deceased husband refused consent to her second marriage. The property reverted to the widow's family if she returned to them.

faggot 1. A piece of firewood used to burn a heretic alive. 2. An embroidered figure of a faggot, required to be worn by heretics who had recanted.

fail A transaction between securities brokers in which delivery and payment do not occur at the prescribed time, usu. on the settlement date. - Also termed fail contract.

fail- 1. To be deficient or unsuccessful; to fall short <they failed to settle the dispute>. 2. To become insolvent or bankrupt <two banks failed last week>. 3, To lapse <the bequest failed as a result of ademption>.

fail contract See FAIL.

fail position A situation existing when, after all transactions in a security have been netted out, a broker owes another broker more securities than it has coming in from other firms.

fail to deliver The nondelivery of securities from a selling broker to a buying broker by the settlement date.

fail to receive The failure of a buying broker to receive delivery of securities from the selling broker by the settlement date.

failed devise See lapsed devise.

failed devise- See lapsed devise under DEVISE.

failed gift 1. See lapsed devise under DEVISE. 2. See lapsed legacy under LEGACY.

failed legacy See lapsed legacy under LEGACY.

failing circumstances See INSOLVENCY.

failing-company doctrine The rule that allows an otherwise proscribed merger or acquisition between competitors when one is bankrupt or near failure. 15 USCA §§§ 12-27. - Also termed failingfirm defense. "The 1992 guidelines provide a limited defense for failing firms and failing divisions of firms. The defense is available if impending failure would cause the assets of one party to leave the market if the merger does not occur. Thus to establish a failing firm defense, the parties must show that the failing firm cannot (1) meet its financial obligations, (2) reorganize in bankruptcy, and (3) find another buyer whose purchase of the firm would pose lesser anticompetitive risks. The parties must further show that (4) without the merger, the failing firm's assets will exit the market." Ernest Gellhorn & William E. Kovacic, Antitrust Law and Economics in a Nutshell 398-99 (4th ed. 1994).

failnre of good behavior See FAILURE.

failure 1. Deficiency; lack; want. 2. An omission of an expected action, occurrence, or performance. See LAPSE (2).

failure of a condition The nonoccurrence of an event that has been made a condition of the contract. The usual result is that one or both of the parties do not have to perform because of the failure of the condition.

failure of consideration See FAILURE OF CONSIDERATION.

failure of consideration- A seriously deficient contractual performance that causes a contract's basis or inducement to cease to exist or to become worthless. Scholars disapprove of this term as misleading, since failure ofperformance is more accurate. Unlike consideration, the phrase failure ofconsideration relates not to the formation of a contract but to its performance. See CONSIDERATION Cf. WANT OF CONSIDERATION. "An illustration will help Indicate how the term is used. If C promises to build a structure for 0 and 0 promises to make payment when the work is completed, it is clear that there is consideration on both sides of this contract and that therefore a contract was formed upon the exchange of promises. If C fails to perform, the result is sometimes described as a 'failure of consideration.' 'Failure of con· sideration' simply means a failure to perform and as used covers both a material breach of constructive conditions and a failure to perform an express condition. The use of the term 'failure of consideration' in this sense appears to be an unnecessary invitation to confUSion because the word consideration is being used in two different senses. Fortunately, the use of this phrase has gradually fallen into disuse, It is, however, still suffiCiently widespread to be mentioned here. This volume nowhere utilizes 'failure of conSideration' as an operative concept." John D. Calamari & Joseph M, Perillo, The Law ofContracts § 11·21, at 474-75 (3d ed, 1987),

failure of good behavior A civil servant's act that is ground for removal.

failure of issue See FAILURE OF ISSUE.

failure of issue- The fact of a person's dying when the person has no surviving children or other descendants who are eligible to inherit the person's estate. Also termed dying without issue; definite failure of issue; default of issue. See ISSUE (3). 'There has been considerable litigation during the past several centuries over the meaning of a gift to 'A and his heirs, but if A shall die Without issue, to S and his heirs.' First of all, what does 'die without issue' mean? The answer appears simple - you look to the time of A's death to determine whether or not he has any children or grandchil· dren. But that is not the way the English courts originally construed this language, The English adopted the so·called indefinite failure of issue' construction if at any time in the future A's line of descent should come to an end, then there was a gift over to S and his heirs. The effect of this was a fee tail in A and a remainder in B. This seems a distortion of the language. and particularly unsuited to American circumstances since the fee tail never found a real home here. Most of our jurisdictions, by judicial decision or statute, adopted the so·called 'definite failure of issue' construction you look to the date of A's death to determine whether he has issue, and to that time alone. If A has issue at that time, then the gift over to Bfails. This seems to be the literal meaning of the words, and it is the only sensible conclusion in a system where the fee tail is virtually a dead letter. The English also struck down the constructional preference for indefinite failure by statute in the nineteenth century." Thomas F. Bergin & Paul C. Haskell, Preface to Estates in Land and Future Interests 236-37 (2d ed. 1984).

failure of justice See MISCARRIAGE OF JUSTICE.

failure of justice- See MISCARRIAGE OF JUSTICE.

failure of proof A party's not having produced evidence establishing a fact essential to a claim or defense. failure of title. A seller's inability to establish a good claim to the property contracted for sale. Cf. clear title under TITLE (2).

failure of proof- See FAILURE.

failure of record In a trial by record, a party's inability to produce the record and thereby prove a pleading; an absence of proof to support a party's pleading. The other party was entitled to summary judgment. See trial by record under TRIAL.

failure of title See FAILURE.

failure of trust The invalidity of a trust because the instrument creating it has a defect or because of its illegality or other legal impediment.

failure of trust- See FAILURE.

failure of will The invalidity of a will that was not executed with necessary statutory formalities.

failure of will- See FAILURE.

failure otherwise than on the merits The defeat of a plaintiffs claim by a procedural device without a decision on the existence of the claim's elements. failure to bargain collectively. An employer's refusal to discuss labor issues with a union.

failure otherwise thau on the merits See FAILURE.

failure to bargaiu collectively See FAILURE.