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failure to claim A finding by the U.S. Patent and Trademark Office or by a court that a patent applicant or patentee has forfeited the right to broader protection by not seeking protection for some disclosed subject matter. Any art outside the explicit claims, including foreseeable alteration of the claimed structure, is considered dedicated to the public domain.

failure to claim- See FAILURE.

failure to make delivery Nondelivery or misdelivery.

failure to make delivery- See FAILURE.

failure to meet obligations 1. See BANKRUPTCY (4). 2. See INSOLVENCY.

failure to meet obligations- 1. See BANKRUPTCY (4). 2. See INSOLVENCY.

failure to perform A party's not meeting its obligations under a contract. See CONTRACT (4).

failure to perform- See FAILURE.

failure to protect The refusal or inability of a parent or guardian to prevent abuse of a child under his or her care.

failure to state a cause of action A plaintiff's not having alleged facts in the complaint sufficient to maintain a claim. This failure warrants dismissal of the complaint.

failure to state a cause of action- See FAILURE.

failure to testify A party's esp. a criminal defendant's decision not to testify. Under the Fifth Amendment, the prosecutor and the judge cannot comment to the jury on a criminal defendant's failure to testify. But comments on the failure are usu. permissible in a civil case.

failure to testify- See FAILURE.

failure to thrive 1. A medical and psychological condition in which a child's height, weight, and motor development fall Significantly below average growth rates. Failure to thrive is sometimes asserted as a ground for alleging abuse or neglect by a parent or caregiver. 2. A condition, occurring during the first three years of a child's life, in which the child suffers marked retardation or ceases to grow. - Abbr. FTT.

failure-of-proof defense The defense that a party's proof does not establish a fact essential to a claim or defense.

failure-to-disclose-best-mode rejection Rejection of a patent application on the ground that the inventor has not disclosed the best way to use the invention. - To warrant rejection, the examiner must find deliberate concealment or a description so poorly drafted as to amount to concealment.

failure-to-disclose-best-mode rejection See REJECTION.

failure-to-perform exclusion A provision in some commercial general liability policies, excluding coverage for (1) the loss of use of undamaged property resulting from the insured's delay or failure in performing an obligation, or (2) a design defect or failure in the insured's product. - Also termed loss-of-use exclusion.

failure-to-perform exclusion- See EXCLUSION (3).

failure-to-supervise statute See PARENTAL-LIABILITY STATUTE.

faint action See FEIGNED ACTION.

faint pleader A false, fraudulent, or collusive manner of pleading.

fair adj. (bef. 12c) 1. Impartial; just; equitable; disinterested <everyone thought that Judge Jones was fair>. 2. Free of bias or prejudice <in jury selection, the lawyers tried to select a fair and impartial jury>.

fair- A privileged market for the buying and selling of goods. A fair was an incorporeal hereditament granted to a town by royal patent or franchise or established by prescription. The franchise to hold a fair conferred important privileges, and a fair, as a legally recognized institution, possessed distinctive legal characteristics, most of which are now obsolete. C( market overt under MARKET.

fair and impartial jury See impartial jury under JURY.

fair and impartial jury See impartial jury.

fair and proper legal assessment See EQUALIZATION (2).

fair and reasonable value See fair market value under VALUE (2).

fair and valuable consideration See fair consideration (1) under CONSIDERATION (1).

fair aud impartial trial See FAIR TRIAL

fair averaging The process of assessing taxes by using the average of the amount and price of goods acquired over a 12-month period rather than the amount and price at a particular time of the year.

fair cash market value See fair market value under VALUE (2).

fair cash value See fair market value under VALUE (2).

fair comment A statement based on the writer's or speaker's honest opinion about a matter of public concern. Fair comment is a defense to libel or slander.

fair competition Open, equitable, and just competition between business competitors.

fair competition- See COMPETITION.

fair consideration 1. Consideration that is roughly equal in value to the thing being exchanged; consideration given for property or for an obligation in either of the following circumstances: (1) when given in good faith as an exchange for the property or obligation, or (2) when the property or obligation is received in good faith to secure a present advance or prior debt in an amount not disproportionately small as compared with the value of the property or obligation obtained. - Also termed fair and valuable consideration. 2. Consideration that is honest, reasonable, and free from suspicion, but not strictly adequate or full.

fair consideration- See CONSIDERATION (1).

fair credit billing act A federal law that facilitates the correction of billing errors by credit-card companies and makes those companies more responsible for the quality of goods purchased by cardholders. 15 USCA §§ 1666-1666j.

fair dealing 1. The conduct of business with full disclosure, usu. by a corporate officer with the corporation. 2. A fiduciary's transacting ofbusiness so that, although the fiduciary might derive a personal benefit, all interested persons are fully apprised of that potential and of all other material information about the transaction. Cf. SELF-DEALING. 3. Canadian law. FAIR USE.

fair debt collection practices act A federal statute that regulates debt-collection practices, and defines the rights of consumers who are contacted by debt collectors. 15 USCA §§ 1692-1692p. - Abbr. FDCPA.

fair hearing See HEARIKG.

fair hearing- A judicial or administrative hearing conducted in accordance with due process.

fair labor standards act A federal law, enacted in 1938, that regulates minimum wages, overtime pay, and the employment of minors. 29 USCA §§ 201-219. Abbr. FLSA.

fair market price See fair market value under VALUE (2).

fair market value See VALUE (2).

fair notice See NOTICE.

fair on its face (Of a document) having the appearance of being regular or legal and not capable of being shown to be defective without extraneous evidence.

fair persuasion See PERSUASION.

fair persuasion Argument, exhortation, or persuasion that does not involve harassment, threats, or misrepresentations.

fair play Equity, candor, and fidelity in dealings with another.

fair play and substantial justice The fairness requirement that a court must meet in its assertion of personal jurisdiction over a nonresident defendant to comport with due process. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154 (1945). See MINIMUM CONTACTS.

fair preponderance of the evidence See PREPONDERANCE OF THE EVIDENCE.

fair presentation 1. Commercial law. A materially accurate disclosure of a company's financial condition, achieved by selecting and using appropriate accounting policies, reasonably reflecting transactions that underlie the financial data, and making any additional necessary disclosures. 2. Criminal law. The requirement that an applicant for a writ of habeas corpus in a state's custody must show (1) he or she has exhausted all available remedies in the state courts, (2) the state has offered no corrective process, or (3) circumstances exist that render a state's corrective process insufficient to protect the applicant's rights.

fair rate of return The amount of profit that a pUblic utility is permitted to earn, as determined by a public utility commission.

fair rate of return See RATE OF RETURN.

fair representation Union representation that adequately covers all union members in collective bargaining and in the lodging of grievances.

fair return on investment The usual or reasonable profit in a business, esp. a public utility.

fair return on investment See RETURN.

fair sale A foreclosure sale or other judicial sale conducted with fairness toward the rights and interests of the affected parties.

fair sale See SALE.

fair trade Commerce conducted under a fair-trade agreement.

fair trial A trial by an impartial and disinterested tribunal in accordance with regular procedures; esp., a criminal trial in which the defendant's constitutional and legal rights are respected. Also termed fair and impartial trial.

fair use A reasonable and limited use of a copyrighted work without the author's permission, such as quoting from a book in a book review or using parts of it in a parody. Fair use is a defense to an infringement claim, depending on the following statutory factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount of the work used, and (4) the economic impact of the use. 17 USCA § 107. - Also termed (in Canadian law) fair dealing. "[Fair use is] the most troublesome [problem] in the whole law of copyright." Del/or v. Samuel Goldwyn, Inc., 104 F.2d 661,662 (2d Or. 1939) (per curiam). "Fair use is a judicial safety valve, empowering courts to excuse certain quotations or copies of copyrighted material even though the literal terms of the Copyright Act prohibit them." Paul Goldstein, Copyright's Highway 84 (1994).

fair value See fair market value under VALUE (2).

fair value accounting method The valuation of assets at present actual or market value. When this method is used to determine the value of a security or other financial instrument, it is also termed mark-to-market accounting method.

fair warning The requirement that a criminal statute define an offense with enough precision so that a reasonable person can know what conduct is prohibited and so that a reasonably skilled lawyer can predict what conduct falls within the statute's scope. Also termed fair notice.

fair wear and tear See WEAR AND TEAR.

fair-and-equitable requirement A Bankruptcy Code standard requiring a forced, nonconsensual Chapter 11 plan (a "cramdown" plan) to provide adequately for each class of interests that has not accepted the plan. In determining whether a cramdown plan is fair and equitable and thus can be confirmed, a bankruptcy court must apply the Code's detailed statutory criteria, consider the plan as a whole, and weigh all the circumstances surrounding the treatment of each impaired class of interests. In addition to the fair-and-equitable requirement, the Chapter 11 cramdown plan must (1) be accepted by at least one impaired class of claims, and (2) not discriminate unfairly among impaired classes that have not accepted the plan. 11 USCA § 1129{b). See CRAMDOWN.

fair-credit-reporting act A federal or state law that regulates disclosure and use of consumer-credit information and ensures the right of consumers to have access to and to correct their credit reports. The federal Fair Credit Reporting Act was enacted in 1970. 15 USCA §§ 1681-1681u. - Abbr. FCRA.

fair-cross-section requirement The principle that a person's right to an impartial jury, guaranteed by the Sixth Amendment, includes a requirement that the pool of potential jurors fairly represent the composition of the jurisdiction's population. The pool of potential jurors need not precisely match the composition of the jurisdiction. But the representation of each group must be fair - no group should be systematically excluded or underrepresented. A minimal disparity in a particular group's representation, such as an absolute disparity of 10%, will not ordinarily violate this principle unless some aggravating factor exists. See DUREN TEST; ABSOLUTE DISPARITY; COMPARATIVE DISPARITY; STATISTICAL-DECISION THEORY.

fairly-debatable rule 1. Insurance. In some states, a test that requires an insurer to have a plausible basis for denying a claim to avoid bad-faith liability. 2. Zoning. A doctrine that bars a court from interfering with a zoning decision that is supported by substantial evidence, although it is one on which reasonable minds can differ. - A court will not interfere with a decision supported by substantial evidence.

fairness doctrine A tederal law, based on an FCC rule, requiring the broadcast media to furnish a reasonable opportunity for the discussion of conflicting views on issues of public importance. The FCC abandoned the fairness doctrine in 1987. Also termed equal-time doctrine. Cf. EQUAL TIME ACT.

fair-report privilege A defense to liability for publishing defamatory matter from a report of an official or judIcial proceeding, when the report is a full, fair, and accurate account of the proceeding.

fair-share membership See FINANCIAL-CORE MEMBERSHIP.

fair-trade agreement A commercial agreement that a seller will sell all ofa producer's goods at or above a specified minimum price. - Fair-trade agreements were valid until 1975, when the Consumer Goods Pricing Act made them illegal. 15 USCA §§ 1, 45.

fair-trade law A state statute that protects and enforces fair-trade agreements .o At one time, many states had fair-trade laws. But when applied to interstate commerce, the laws may violate the Sherman Antitrust Act, so most states have repealed them.

fair-value accounting method See ACCOUNTING METHOD.

fair-value law A statute allowing a credit against a deficiency for the amount that the fair market value of land exceeds the price at foreclosure. Also termed fairvalue legislation.

fait (fay or fe). [Law French fro Latin factum]. Anything done; an act or deed. The term fait accompli (fay or fe ta-kom-plee), meaning "a deed accomplished," which is not merely legal, is related to this word.

fait enrolle (fay or fe ton-rohl). [Law French]. An enrolled deed of a sale of a freehold estate.

faith and trust See FLIM FLAM.

faithfully executed clause The clause of the U.S. Constitution providing that the President must take care that the laws are carried out faithfully. U.S. Const. art. II, § 3.

faith-healing exemption In a child-abuse or child-neglect statute, a provision that a parent who provides a child with faith healing (in place of standard medical treatment) will not, for that reason alone, be charged with abuse or neglect. Nearly all states have enacted some form of faith-healing exemption. But the statutes differ greatly. For example, they differ on whether the exemption is available as a defense to manslaughter or murder charges brought against a parent whose child dies as a result of the parent's having refused to consent to medical treatment. - Also termed religious-exemption statute; spiritual-treatment exemption. Cf. medical neglect under NEGLECT.

fake Something that is not what it purports to be. See FORGERY (2); IMPOSTOR.

fake- To make or construct falsely. See COUNTERFEIT.

falcidian portion The one-fourth part of an estate that one or more instituted heirs are entitled to retain. La. Civ. Code art. 1494. - Also termed quarta Falcidiana. See forced heir under HEIR; LEGITIME. Cf. QUARTA TREBELLIANICA.

falcidianlaw (fal-sid-ee-an). Roman law. A law prescribing that one could give no more than three-fourths of one's property in legacies and that the heirs should receive at least one-fourth (the Fakidian portion). If the testator violated this law, the heir had the right to deduct proportionally from each legatee as necessary. The law, proposed by the Roman tribune Falcidius, was enacted in 40 B.C. - Also termed lex Falcidia. See LEGITIME. "A large number of small legacies might [either] leave nothing for the heir ... [or] make his part so small as to seem valueless in his eyes. But a Falcidian law, passed in the year 40 B.C., put an end to the whole difficulty. This law secured to the heir a quarter of the net value of the estate; the legatees could obtain only three-quarters: if the legatees named in the will amounted to more than this, they were diminished by proportional reductions.... Few measures have accomplished their purpose more satisfactorily than the Falcidian law, which remained in force through the history of the empire, and holds an important place in the system ofJustinian." James Hadley, Introduction to Roman Law 321-22 (1881).

falconer error A trial court's failure to instruct the jury that a guilty finding on a manslaughter charge requires acquittal on a murder charge. Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990).

faldage (fahl-dij), 1. A landowner's right to require tenants to graze their sheep in designated temporary folds so that the manure will fertilize the field. - Also termed foldage; fold soc. 2. A sum of money paid to the landowner by a sheep-owning tenant in lieu of keeping the animals in the landowner's temporary fold. Also termed faidfee.

faldfee (fahld-fee), See FALDAGE (2).

faldworth (fahld-warth), A person who resides in a rural community where everyone above a certain age is responsible for the good conduct of all other members of the community and has reached that age of responsibility. This was part of the frankpledge system. See DECENARY; FRANKPLEDGE.

fall of the hammer An auctioneer's closing of bidding <the bureau will be sold at the fall of the hammer>. Traditionally, an auctioneer bangs a hammer, gavel, or other object when bidding is closed. In some circumstances, such as online auctions, a verbal announcement that bidding is closed substitutes.

fallacy- Any unsound, and usu. deceptive, argument or inference. Both "formal" and "material" fallacies occur in a variety of recognized categories, knowledge of which is fundamental in the analysis of the validity of legal reasoning employed in any legal argument, esp. in judicial opinions. The presence of a fallacy in a legal argument is a defect often fatal and usu. deceptive - in the legal reasoning.

fallo (fahl-yoh), n. Spanish law. The mandate in a court's judgment; the dispositive sentence in a judicial pronouncement.

falsa causa (fal-sa [or fawl-sa] kaw-za). [Latin "mistaken reason or motive"] Roman law. Falsity of consideration.This might result from several things, such as a mistaken reason for making a gift or bequest. Also termed (esp. in civil law) causa falsa.

falsa causa- See CAUSA (2).

falsa demonstratio (fal-sa or fawl-sa dem-an-stray-shee-oh). Roman law. A false designation; an erroneous description of a person or thing in a legal instrument. Generally, a simple error in description, grammar, or spelling will not void an instrument or even a single provision in it (such as a bequest by will). - Also termed false demonstration.

falsa moneta (fal-sa or fawl-sa ma--nee-ta). Roman law. Counterfeit money.

falsare (fal-sair-ee or fawl-), vb. [Law Latin]. To counterfeit; to falsify.