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mandatory injunction An injunction that orders an affirmative act or mandates a specified course of conduct. - Also termed affirmative injunction. Cf. prohibitory injunction.

mandatory instruction An instruction requiring a jury to find for one party and against the other if the jury determines that, based on a preponderance of the evidence, a given set offacts exists. Also termed binding instruction.

mandatory joinder See compulsory joinder.

mandatory power A power that the donee must exercise and must do so only as instructed, without discretion.

mandatory presumption See conclusive presumption.

mandatory rule A legal rule that is not subject to a contrary agreement. For example, the UCC obligation of good faith and fair dealing cannot be disclaimed.

mandatory sentence A sentence set by law with 110 discretion for the judge to individualize punishment. Also termed mandatory penalty; mandatory punishment;fixed sentence.

mandatory sentencing A statutorily specified penalty that automatically follows a conviction for the offense, often with a mi~imum mandatory term. Also termed determinate sentencing; fixed sentencing.

mandatory statute A law that requires a course ofaction as opposed to merely permitting it. Cf. directory statute; permissive statute.

manifest constitutional error An error by the trial court that has an identifiably negative impact on the trial to such a degree that the constitutional rights of a party are compromised. A manifest constitutional error can be reviewed by a court of appeals even if the appellant did not object at trial.

manifest error An error that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record.

manifest intent Intent that is apparent or obvious based on the available circumstantial evidence, even if direct evidence of intent is not available. For example, some fidelity bonds cover an employers losses caused by an employees dishonest or fraudulent acts committed with a manifest intent to cause a loss to the employer and to obtain a benefit for the employee. Establishing manifest intent sufficient to trigger coverage does not require direct evidence that the employee intended the employers loss. Even if the employee did not actively want that result, but the result was substantially certain to follow from the employees conduct, the requisite intent will be inferred.

mantle child A child born out of wedlock and later legitimated when the parents are married, traditionally by standing under a cloak with the parents during the marriage ceremony. "Our law has no need to distinguish between various sorts of illegitimate children. A child is either a legitimate child or a bastard .... In the sharp controversy over this principle ... the champion of what we may call the highchurch party alleged that old English custom was in accord with the law of the church as defined by Alexander III. Probably there was some truth in this assertion. It is not unlikely that old custom, though it would not have held that the marriage in itself had any retroactive effect, allowed the parents on the occasion of their marriage to legitimate the already existing offspring of their union. The children were placed under the cloak which was spread over their parents during the marriage ceremony, and became 'mantle children.' We hear of this practice in Germany and France and Normandy; but we have here rather an act of adoption than a true legitimation. and it would not have fully satisfied the church." 2 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward I 397-98 (2d ed. 1899).

manual gift A gift of movable, tangible property, made by delivery without any formalities. La. Civ. Code art. 1539.

manual-rating insurance A type of insurance whereby the premium is set using a book that classifies certain risks on a general basis, rather than evaluating each individual case.

manufactured diversity Improper or colluSively created diversity of citizenship for the sole or primary purpose of creating federal jurisdiction. Manufactured diversity is prohibited by 28 USCA § 1359.

manufactured home Secured transactions. A structure, transportable in one or more sections, that when traveling is 8 body feet or more in width or 40 body feet or more in length, or, when erected on site, is 320 or more square feet, and that is built ona permanent chassis and designed to be used as a dwelling with or without a permanentfoundation when connected to the required utilities, and that has within it plumbing, heating, air-conditioning, and electrical systems. UCC § 9-102(a)(36).

manufacturing cost The cost incurred in the production of goods, including direct and indirect costs. marginal cost. (1891) The additional cost incurred in producing one more unit of output.

manufacturing defect An imperfection in a product that departs from its intended design even though all possible care was exercised in its assembly. Cf. design defect.

manuscript policy An insurance policy containing nonstandard provisions that have been negotiated between the insurer and the insured.

Mapp hearing See MAPP HEARING.

margin stock See marginable security under SECURITY.

margin account A brokerage account that allows an investor to buy or sell securities on credit, with the securities usu. serving as collateral for the broker's loan.

margin call A securities broker's demand that a customer put up money or stock as collateral when the broker finances a purchase of securities. A margin call usu. occurs when the market prices of the securities are falling. Also termed maintenance call. 3. See call option under OPTION. 4. A demand for the presentation of a security (esp. a bond) for redemption before the maturity date. 5. A landmark designating a property boundary. The landmarks are chosen by the surveyor and recorded in his field notes or in the accompanying deed. See DIRECTORY CALL; LOCATIVE CALL; METES AND BOUNDS.

marginable security A security that can be bought on margin. - Also termed margin stock. See MARGIN.

marginal release An entry made in the margin of a property record by the recorder of deeds to show that a claim against the property has been satisfied.

marginal revenue The amount of revenue earned from the sale of one additional unit.

marginal tax rate In a tax scheme, the rate applicable to the last dollar of income earned by the taxpayer. This concept is useful in calculating the tax effect of receiving additional income or claiming additional deductions. See TAX BRACKET.

margined security A security that is bought on margin and that serves as collateral in a margin account. See MARGIN.

marine carrier A carrier operating on navigable waters subject to the jurisdiction of the United States.

marine contract- See maritime contract.

marine insurance An agreement to indemnify against injury to a ship, cargo, or profits involved in a certain voyage or for a specific vessel during a fixed period, or to protect other marine interests.

mariner's hypothec- 1. A lien that a seaman, freighter, or repairer can assert against a ship for payment of wages or other sums due. 2. A shipowner's lien against the ship's cargo for the freight costs.

marital agreement See MARITAL AGREEMENT.

marital deduction A federal tax deduction allowed for lifetime and testamentary transfers from one spouse to another. IRC (26 USCA) §§ 2056, 2523.

marital estate See marital property under PROPERTY.

marital immunity See husband-wife immunity.

marital privilege 1. The privilege allowing a spouse not to testify, and to prevent another person from testifying, about confidential communications between the spouses during the marriage. Also termed marital-communications privilege. 2. The privilege allowing a spouse not to testify in a criminal case as an adverse witness against the other spouse, regardless of the subject matter of the testimony. Also termed (in sense 2) privilege against adverse spousal testimony; antimarital-facts privilege. 3. The privilege immunizing from a defamation lawsuit any statement made between husband and wife. Also termed (in all senses) spousal privilege; husband-wife rivilege.

marital property Property that is acquired during marriage and that is subject to distribution or division at the time of marital dissolution. Generallv, it is property acquired after the date of the marriage and before a spouse files for separation or divorce. The phrase marital property is used in equitable-distribution states and is roughly equivalent to community property. - Also termed marital estate. See COMMUNITY PROPERTY; EQUITABLE DISTRIBUTION.

marital rape A husband sexual intercourse with his wife by force or without her consent. Marital rape was not a crime at common law, but under modern statutes the marital exemption no longer applies, and in most jurisdictions a husband can be prosecuted for raping his wife. - Also termed spousal rape.

marital settlement agreement See DIVORCE AGREEMENT.

maritime contract A contract that is recognized in admiralty jurisdiction. In general, a maritime contract relates to a vessel in its use as such, to navigation on navigable waters, to transportation by sea, or to maritime employment. Also termed marine contract.

maritime court See ADMIRALTY (1).

mark to market accounting method See fair-value accounting method.

market order An order to buy or sell at the best price immediately available on the market. Also termed order at the market.

market portfolio A value-weighted portfolio of every asset in a particular market. 2. The role within the government of a high official <minister without portfolio>.

market price The prevailing price at which something is sold in a specific market. See fair market value under VALUE (2).

market quotation The most current price at which a security or commodity trades. 3. A contractor s estimate for a given job. Sometimes shortened to quote.

marketable security A security that the holder can readily sell on a stock exchange or an over-the-counter market.

marketing contract 1. A business's agreement with an agency or other association for the promotion of sales of the business's goods or services. 2. An agreement between a cooperative and its members, by which the members agree to sell through the cooperative, and the cooperative agrees to obtain an agreed price.

marketing defect 1. The failure to adequately warn of a potential risk of harm that is known or should have been known about a product or its foreseeable use. 2. The failure to adequately instruct the user about how to use a product safely.

marking estoppel Estoppel that prevents a party from asserting that a product is not covered by a patent if that party has marked the product with a patent number. This type ofestoppel has been questioned in recent years, and has been sharply limited by some courts.

Markush claim A patent claim that includes elements listing alternative chemicals, materials, or steps in a process. A Markush claim typically has language such as "selected from the group consisting of. The alternatives must all give the same result, rather than patentably distinct products. The name derives from Ex parte Markush, 1925 Dec. Comm r Pat. 126. See MARKUSH DOCTRINE.

marriage contract A form of mutual consent required for a matrimonial relationship to exist according to the law of the place where the consent takes place. Also termed contract of marriage.

marriage promise A betrothal; an engagement to be married. - Also termed agreement to marry; promise to marry; promise of marriage.

mass asset An intangible asset, such as a dominant market position, that is made up of several components but that is considered a single entity for purposes of depreciation, because the loss of any component of the asset is replaced by new components, so that the whole asset has little or no fluctuation in value. An entity with a dominant market position might lose a vendor but, because of its dominant market position, still be able to replace the loss with a new vendor. The market position is therefore considered a mass asset.

Massachusetts ballot A ballot in which, under each office, the candidates' names appear in alphabetical order alongside their party designations . This is a type of Australian ballot.

master limited partnership See publicly traded partnership.

master policy An insurance policy that covers multiple insureds under a group-insurance plan. Also termed group policy. See group insurance under INSURANCE.

master-servant relationship The association between one in authority and a subordinate, esp. between an employer and an employee. At common law, this term also designated the husband-wife relationship for purposes of analyzing loss of consortium, but that usage is now obsolete. Also termed employer-employee relationship. See MASTER AND SERVANT.

matched order An order to buy and sell the same security, at about the same time, in about the same quantity, and at about the same price.

material allegation In a pleading, an assertion that is essential to the claim, charge, or defense <a material allegation in a battery case is harmful or offensive contact with a person>.

material alteration 1. A significant change in something; esp., a change in a legal instrument sufficient to alter the instrument's legal meaning or effect. 2. An unauthorized change in an instrument or an addition to an incomplete instrument resulting in the modification of a party's obligations. UCC § 3-407.

material breach A breach of contract that is significant enough to permit the aggrieved party to elect to treat the breach as total (rather than partial), thus excusing that party from further performance and affording it the right to sue for damages. "In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing." Restatement (Second) of Contracts § 241 (1979).

material evidence Evidence having some logical connection with the facts of consequence or the issues. Cf. relevant evidence; immaterial evidence.

material fact A fact that is significant or essential to the issue or matter at hand.

material fallacy A fallacy involving flaws in the factual content of a logical argument.

material issue An issue that must be decided in order to resolve a controversy. The existence of a material issue of disputed fact precludes summary judgment. Cf. immaterial issue.

material representation A representation to which a reasonable person would attach importance in deciding his or her course of action in a transaction. Material representation is a element of an action for fraud.

material-witness arrest An arrest of a witness to a crime for the purpose of inducing the witness to talk to police. This type of arrest requires a warrant based on probable cause.

maternal property Property that comes from the mother of a party or other ascendants of the maternal stock.

maternal-line descent Descent between two persons, traced through the mother of the younger.

mathematical evidence 1. Loosely, evidence that establishes its conclusions with absolute certainty. 2. Evidence pertaining to mathematical or statistical matters, or probabilities.

matrimonial action An action relating to the state of marriage, such as an action for separation, annulment, or divorce.

matrimonial cohabitation The living together of husband and wife.

matrimonial domicile A domicile that a husband and Wife, as a married couple, have established as their home. - Also termed marital domicile; matrimonial home.

matrimonial home See matrimonial domicile under DOMICILE.

matured claim A claim based on a debt that is due for payment.

maturity date- See date of maturity.

maximalist retributivism The classical form of retributivism, espoused by scholars such as Immanuel Kant, under which it is argued that society has a duty, not just a right, to punish a criminal who is guilty and culpable, that is, someone who has no justification or excuse for the illegal act.

maximum sentence The highest level of punishment provided by law for a particular crime.

mayor's court A municipal court in which the mayor presides as the judge, with jurisdiction over minor criminal (and sometimes civil) matters, traffic offenses, and the like.

McClanahan presumption See MCCLANAHANN PRESUMPTION.

mean reserve In insurance, the average of the beginning reserve (after the premium has been paid tor the policy year) and the ending reserve of the policy year.

mean trading price The average of the daily trading price of a security determined at the close of the market each day during a 90-day period.

means-combination claim A type ofclaim in a patent application that includes multiple limitations, at least one of which is in means-plus-function or step-plus-function form. Means-combination claims are acceptable to examiners.

means-plus-function claim See MEANS-PLUS-FUNCTION CLAUSE.

mediate descent 1. A descent not occurring immediately, as when a granddaughter receives land from her grandmother, which first passed to the mother. 2. A direct descent occurring through a link in consanguinity, as when a granddaughter receives land from her grandfather directly. "The law categorizes descents as either lineal or collat· eral, and as mediate or immediate. The term mediate or immediate descent may denote eIther the passing of the estate, or the relationship between the intestate and the heir.The classification of descents as mediate or immedi· ate describes the proximity of the descent, while the char· acterization as lineal or collateral refers to the direction of the descent." 23 Am. Jur. 2d, Descent and Distribution § 49, at 787-88 (1983).

mediate evidence See secondary evidence.

mediate possession (mee-dee-it). Possession of a thing through someone else, such as an agent. In every instance of mediate possession, there is a direct possessor (such as an agent) as well as a mediate possessor (the principal). - Also termed indirect possession. "If I go myself to purchase a book, I acquire direct possession of it: but if I send my servant to buy it for me, I acquire mediate possession of it through him, until he has brought it to me, when my possession becomes immediate. John Salmond,jurisprudence 300 (Glanville L. Williams ed., 10th ed.1947),

mediate powers See MEDIATE POWERS.

mediated settlement agreement A settlement agreement arrived at through mediation. - Abbr. MSA.

medical evidence Evidence furnished by a doctor, nurse, or other qualified medical person testifying in a professional capacity as an expert, or by a standard treatise on medicine or surgery.

medical expense 1. An expense for medical treatment or healthcare, such as drug costs and health-insurance premiums. Medical expenses are tax-deductible to the extent that the amounts (less insurance reimbursements) exceed a certain percentage of adjusted gross income. 2. (usu. pi.) In dvillitigation, any one of many possible medical costs that the plaintiff has sustained or reasonably expects to incur because of the defendant's allegedly wrongful act, including charges for visits to physicians' offices, medical procedures, hospital bills, medicine, and recuperative therapy needed in the past and in the future. - Often shortened (in pI.) to medicals.

medical-expense reimbursement plan An arrangement provided by an employer to reimburse employees for medical expenses, including vision and dental expenses, that are not covered under a medical plan available to all employees. Some plans may also be used to substitute for health insurance, or to pay for medical expenses in excess of insurance-policy limits. IRC (26 USCA) 105. - Abbr. MERP.

medigap insurance See MEDIGAP INSURANCE.

member bank A bank that is a member of the Federal Reserve System. - Also termed reserve bank. See FEDERAL RESERVE SYSTEM.

members scheme of arrangement A reorganization plan voted on and approved by the company s shareholders. This type of scheme may be used to prepare for a merger. Also termed shareholders scheme of arrangement.

membership committee A committee charged with recruiting and keeping members and getting them involved.

memorandum check A check that a borrower gives to a lender for the amount of a short-term loan, with the understanding that it is not to be presented for payment but will be redeemed by the borrower when the loan falls due.