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open-end fund See MUTUAL FUND.

open-end mortgage See MORTGAGE.

open-end mortgage bond See BOND (3).

open-end mortgage bond A mortgage bond that can be used as security for another bond issue.

open-ended claim A patent claim that contains a nonexclusive list of elements, typically introduced by the phrase consisting of. A later patent applicant cannot avoid infringement by merely adding an analogue to the list. Cf. closed-ended claim; nearly closed-ended claim.

open-fields doctrine The rule permitting a warrantless search of the area outside a property owner s curtilage. Unless there is some other legal basis for the search, it must exclude the home and any adjoining land (such as a yard) that is within an enclosure or otherwise protected from public scrutiny. Also termed open-field doctrine; open-fields rule. Cf. PLAIN-VIEW DOCTRINE.

opening a judgment A court s grant of a motion for a rehearing on the merits but keeping the court s decision in effect.

opening bidding See OPENING THE BIDDING.

opening brief See BRIEF.

opening brief A party's first brief at a given stage of a lawsuit. Although this term is most often associated with a plaintiff or appellant, it is sometimes applied to a defendant or respondent. Also termed opening brief on the merits.

opening brief on the merits See opening brief under BRIEF.

opening statement At the outset of a trial, an advocate s statement giving the fact-finder a preview of the case and of the evidence to be presented. Although the opening statement is not supposed to be argumentative, lawyers purposefully or not often include some form of argument. The term is thus some times referred to as opening argument.

opening the bidding In a sheriff s sale of real property, the unethical practice of setting aside the concluded sale to accept a better post-sale offer. - Also termed opening bidding.

open-meeting law See SUNSHINE LAW.

open-perils policy A property insurance policy covering all risks against loss except those specifically excluded from coverage.

open-perils policy See INSURANCE POLICY.

open-public-records act See OPEN-RECORDS ACT.

open-records act A statute providing for public access to view and copy government records maintained by public agencies. - Also termed open-public-records act.

open-shop-dosed-shop operation See DOUBLEBREASTED OPERATION.

open-source license See LICENSE.

open-source software Software that is usu. not sold for profit. includes both human-readable source code and machine-readable object code, and allows users to freely copy, modify, or distribute the software. Even though open-source software is made widely available for free. it may be protected by federal trade¬ mark law. See Planetary Motion Inc. v. Techplosion Inc. 261 F.3d 1188 (11th Cir. 2001).

operability. Patents The ability of an invention to work as described. A patent examiner may challenge the operability of an invention and require some proof, such as a demonstration of a working model.

operating a motor vehicle while intoxicated See DRIVING UNDER THE INFLUENCE.

operating a motor vehicle under the influence See DRIVING UNDER THE INFLlJENCE.

operating agreement. Oil &- gas A contract among owners of the working interest in a prodUcing oil or gas well setting forth the parties agreements about drilling, development, operations, and accounting.

operating earnings See EARNINGS.

operating earnings Business income calculated in violation of generally accepted accounting principles by including income items and excluding various business expenses. Many companies use operating earnings to favorably skew their price-earnings (P/E) ratios. Because the rationales for the underlying calculations vary from company to company, and trom period to period within a company, operating earnings are almost always artificially inflated and unreliable. The term operating earnings is meaningless under generally accepted accounting principles. Also termed pro forma earnings; economic earnings; core earnings; ongoing earnings; earnings excluding special items. See PRICE-EARNINGS RATIO.

operating expense An expense incurred in running a business and producing output. - Also termed current expense.

operating expense See EXPENSE.

operating income See ordinary income (1).

operating income See ordinary income (1) under INCOME.

operating interest See WORKIN1G INTEREST.

operating lease See LEASE.

operating profit Total sales revenue less all operating expenses, no adjustment being made for any nonoperating income and expenses, such as interest payments.

operating profit See PROFIT (1).

operating under the influence See DRIVING UNDER THE INFLUENCE.

operating while intoxicated See DRIVING UNDER THE INFLUENCE.

operating-cost ratio The ratio between the net sales of a business and its operating costs.

operation of law The means by which a right or a liability is created for a party regardless of the party s actual intent <because the court didn t rule on the motion for rehearing within 30 days, it was overruled by operation of law>.

operational 1. Engaged in operation; able to function. 2. Ministerial.

operations clause Oil & gas. A provision in an oil-and gas lease specifying that the lease will not expire as long as oil-and-gas development continues on the leased property. See CONTINUOUS-OPERATIONS CLAUSE; WELL- i COMPLETION CLAUSE.

operative 1. Being in or having force or effect; esp., designating the part of a legal instrument that gives effect to the transaction involved <the operative proVision of the contract>. 2. Having principal relevance; essential to the meaning of the whole <may is the operative word of the statute>.

operative performance bond See PERFORMANCE BOND.

operative clause A provision under an enacting or resolving clause; a provision that is not a mere recital or preamble. See resolving clause.

operative clause See CLAUSE.

operative construction 1. The interpretation of a writing or agreement, esp. a ontract, statute, or regulation, that is being relied on by the parties, a court, or an administrative agency. 2. Patents. A working embodiment of an invention, usu. used to conceptualize the invention and how it will work rather than to create a working modeL 3. The doctrine that the interpretation of a statute or regulation made by an administrative agency charged with enforcing it is entitled to judicial deference unless it is arbitrary and capricious.

operative fact See FACT.

operative fact 1. A fact that affects an existing legal relation, esp. a legal claim. When applying the hearsay rule, this term distinguishes between out-ofcourt statements that are operative facts (e.g., a party's saying "I agree to reimburse you" in a case for breach of oral contract), and hearsay, out-of-court statements that only relate tooperative facts (e.g., "Joel told me Mike said he would reimburse me"). 2. A fact that constitutes the transaction or event on which a claim or defense is based.

operative performance bond A performance bond that has been activated by the issuance of the buyer s letter of credit or other approved financing.

operative trust See active trust under TRUST.

operative words In a transactional document, the words that actually effect the transaction.

operis novi nuntiatio See NOVI OPERIS NUNTIATIO.

opeu court 1. A court that is in session, presided over by a judge, attended by the parties and their attorneys, and engaged in judicial business. Open court usu. refers to a proceeding in which formal entries are made on the record. The term is distinguished from a court that is hearing evidence in camera or from a judge that is exercising merely magisterial powers. 2. A court session that the public is free to attend. Most state constitutions have open-court provisions guaran-teeing the public s right to attend trials.

opeu-ended claim See PATENT CLAIM.

OPIC. abbr. OVERSEAS PRIVATE INVESTMENT CORPORATION.

opinio juris sive necessitatis (a-pin-ee-oh joor-is si-vee na-ses-i-tay-tis). [Latin opinion that an act is neces sary by rule of law"]. The principle that for conduct or a practice to become a rule of customary international law, it must be shown that nations believe that international law (rather than moral obligation) mandates the conduct or practice. Also termed opinio juris.

opinion 1. A court s written statement explaining its decision in a given case, usu. including the statement of facts, points of law, rationale, and dicta. Abbr. op. Also termed judicial opinion. See DECISION. Cf. JUDGMENT (1); RULING(l).

opinion evidence A witness's belief, thought, inference, or conclusion concerning a fact or facts. Fed. R. Evid. 701-705. See OPINION (3); OPINION RULE. "In a sense all testimony to matter of fact is opinion evidence; i.e. it is a conclusion formed from phenomena and mental impressions.'· James B. Thayer, A Preliminary Treatise on Evidence at the Common Law 524 (1898). oral evidence. See testimonial evidence.

opinion evidence See EVIDENCE.

opinion letter See OPINION (2).

opinion rule The principle that a witness should testify to facts, not opinions, and that a nonexpert witness s opinions are often excludable from evidence. Traditionally, this principle is regarded as one of the important exclusionary rules in evidence law. It is based on the idea that a witness who has observed data should provide the most tactual evidence possible, leaVing the jury to draw inferences and conclusions from the evidence. Under this system, the witness s opinion is unnecessary. Today, opinions 1203 are admissible if rationally based on a witness s perceptions and helpful to the fact-finder. This rule [the opinion rule} is an historical blunder, for the early cases excluding opinion meant a belief by a person who had personally seen and known nothing, and was therefore not qualified to speak; whereas the modern rule applies it to witnesses who have had personal observation as a basis for their inference. Moreover, it is a senseless rule, for not once in a thousand times can the observed data be exactly and fully reproduced in words. Still further no harm could be done by letting the witness offer his inference, except perhaps the waste of a moment s time, whereas the application of the rule wastes vastly more time. And finally the rule is so pedantically applied by most courts that it excludes the most valuable testimony, such as would be used in all affairs of life outside a court room. John H. Wigmore, A Students Textbook of the Law of Evidence 156 (1935).

opinion testimony See TESTIMONY.

opinion work product See WORK PRODUCT.

OPM abbr. OFFICE OF PERSONNEL MANAGEMENT.

oppignorate (a-pig-na-rayt), vb. Archaic. To pawn or pledge. - Also spelled oppignerate. Cf. PIGNORATE.

opponent 1. An adverse party in a contested matter. 2. A party that is challenging the admiSSibility of evidence. In this sense, the word is an antonym of proponent. 3, Parliamentary law. A member who speaks against a pending motion. Cf. PROPONENT (3).

opportunity The fact that the alleged doer of an act was present at the time and place of the act.

opportunity cost opportunity cost. See COST (1).

opportunity cost The cost of acquiring an asset measured by the value of an alternative investment that is forgone <her opportunity cost of $1,000 in equipment was her consequent inability to invest that money in bonds>. Also termed implicit cost.

opportunity to be heard The chance to appear in a court or other tribunal and present evidence and argument before being deprived of a right by governmental authority. The opportunity to be heard is a fundamental requirement of procedural due process. It ordinarily includes the right to receive fair notice of the hearing, to secure the assistance ofcounsel, and to cross• examine adverse witnesses. See procedural due process under DUE PROCESS.

opposer 1. Intellectual property. One who formally seeks to prevent the grant of a patent or the registration of a trademark.

oppression 1. The act or an instance of unjustly exerciSing authority or power. 2. An offense consisting in the abuse of discretionary authority by a public officer who has an improper motive, as a result of which a person is injured. This offense does not include extortion, which is typically a more serious crime. 3. Contracts. Coercion to enter into an illegal contract. Oppression is grounds for the recovery of money paid or property transferred under an illegal contract. See DURESS; UNCONSCIONABILITY. 4. Corporations. Unfair treatment of minority shareholders (esp. in a close corporation) by the directors or those in control of the corporation. Also termed (in sense 4) shareholder oppression. See FREEZE OUT. oppress, vb. oppressive, adj.

oppressive child labor Under the Fair Labor Standards Act, the employment of workers under the age of 16 in any occupation, or the employment of those 16 to 18 years old in particularly hazardous occupations. 29 USCA § 203(1); 29 CFR § 570.1(b). The Secretary of Labor may assess civil penalties of up to $10,000 per violation. 29 USCA § 216(e). Also termed harmful child labor.

oppressive child labor See CHILD LABOR.

oppressor A public official who unlawfully or wrongfully exercises power under color of authority in a way that causes a person harm; one who commits oppression.

OPRA abbr. OPTIONS PRICE REPORTING AUTHORITY.

opt in To choose to participate in (something) <when the choice of settling or not settling came, the Joneses opted in, hoping to avoid a lengthy trial>.

opt ont To choose not to participate in (some¬thing) <with so many plaintiffs opting out of the class, the defendant braced itself for multiplicitous lawsuits>.

optima fide (op-ti-ma fi-dee). [Latin]. In the best faith.

optimal-use value See VALUE (2).

option To grant or take an option on (something) <Ward optioned his first screenplay to the studio for $50,000>.

option l. The right or power to choose; something that may be chosen <the lawyer was running out of options for settlement>. 2. An offer that is included in a formal or informal contract; esp., a contractual obligation to keep an offer open for a specified period, so that the offeror cannot revoke the offer during that period <the option is valid because it is supported by consideration>. Also termed option contract; (redundantly) time option. See irrevocable offer under OFFER; OPTION AGREEMENT. 3. The right conveyed by such a contract <Pitts declined to exercise his option to buy the house>. 4. The right (but not the obligation) to buy or sell a given quantity of securities, commodities, or other assets at a fixed price within a specified time <trading stock options is a speculative business>. Cf. FUTURES CONTRACT.

option agreement A share-transfer restriction that commits the shareholder to sell, but not the corporation or other shareholders to buy, the shareholder s shares at a fixed price when a specified event occurs. Cf. BUY-SELL AGREEMENT (2); OPTION (2).

option contract See OPTION (2).

option contract See OPTION (2).

option premium See PREMIUM (4).

option spread The difference between the option price and the market price of the underlying stock when the option is exercised. See SPREAD.

option tender bond See put bond under BOND (3).

option tender bond See put bond.

option to purchase real property See OPTION.

option to purchase real property A contract by which an owner of realty enters an agreement with another allowing the latter to buy the property at a specified price within a specified time, or within a reasonable time in the future, but without imposing an obligation to purchase upon the person to whom it is given.

optional bond See BOND (3).

optional bond A bond that the holder may redeem before its maturity date if the issuer agrees.

optional completeness, rule of See RULE OF OPTIONAL COMPLETENESS.

optional writ See WRIT.

optional-completeness doctrine See RULE OF OPTIONAL COMPLETENESS.

optionee (op-sha-nee). One who receives an option from another. Also termed option-holder.

optionor (op-sha-nar or op-sha-nor). One who grants an option to another. Also spelled optioner. Also termed option-giver.

Options Price Reporting Authority A national market system plan approved by the SEC for collecting and disseminating last-sale and quotation information on options traded on a five-member exchange consisting of the American Stock Exchange, the Chicago Board of Options Exchange, the New York Stock Exchange, the Pacific Stock Exchange, and the Philadelphia Stock Exchange. - Abbr. OPRA.

opt-out class A plaintiff class, certified under Federal Rule of Civil Procedure 23(b)(3), from which class members may choose to exclude themselves if they do not want to be bound by the decisions or settlements reached in the case . Rule 23(e) permits courts to dismiss class members who request exclusion. Class members mav wait until the settlement's terms are announced before choosing to opt out.