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portfolio income See INCOME.

portfolio income Income not derived in the ordinary course of a trade or business, such as interest earned on savings, dividends, royalties, capital gains, or other investment sources. For tax purposes, losses on passive activities cannot be used to offset net portfolio income. Cf. passive income.

portfolio-pumping The practice of purchasing additional shares of a stock near the end of a fiscal period in an attempt to improve an investment fund s apparent performance. Also termed window dressing.

portio legitima (por-shee-oh la-jit-i-ma). [Latin "lawful portion"] Roman & civil law. The portion of an estate required by law to be left to close relatives; specif., the portion of an inheritance that a given heir is entitled to, and of which the heir cannot be deprived by the testator without special cause. Cf. LEGITlME. PI. portiones legitimae.

portion A share or allotted part (as of an estate).

portioner (por-sha-nar). 1. Scots law. One who owns a portion of a decedent s estate.

portionibus haereditariis (por-shee-oh-na-bas ha-red-i¬tair-ee-is). [Law Latin]. In hereditary portions.

portorium (por-tohr-ee-am). [Law Latin]. 1. A tax or toll levied at a port or at the gates of a city. 2. A toll for passing over a bridge.

port-risk insurance Insurance on a vessel lying in port. Cf. time insurance; voyage insurance.

port-risk insurance See INSURANCE.

portsale A public sale of goods to the highest bidder; an auction.

port-state control The exercise of authority under international conventions for a state to stop, board, inspect, and when necessary detain vessels sailing under foreign flags while they are navigating in the port state s territorial waters or are in one of its ports. The purpose is to ensure the safety of the vessels as well as to enforce environmental regulations. Cf. COASTAL-STATE CONTROL; FLAG-STATE CONTROL.

portwarden An official responsible for the administration of a port.

posit 1. To presume true or to offer as true. 2. To present as an explanation.

position The extent of a person s investment in a particular security or market.

position of the United States The legal position of the federal government in a lawsuit, esp. in a case involving the Equal Access to Justice Act. Under the EAJA, the reasonableness of the position in light of precedent determines whether the government will be liable for the opposing party s attorney s fees.

positional-risk doctrine The principle by which the workers -compensation requirement that the injury arise out of employment is satisfied if the injured worker s employment required the worker to be at the place where the injury occurred at the time it occurred. Also termed positional risk analysis; positional risk tcst.

positive evidence See direct evidence (1) under EVIDENCE.

positive act 1. OVERT ACT. 2. ACT (2).

positive condition See CONDITION (2).

positive condition A condition that requires some act, such as paying rent. Also termed affirmative condition.

positive covenant A covenant that requires a party to do something (such as to erect a tence within a specified time).

positive covenant See COVENANT (1).

positive duty A duty that requires a person either to do some definite action or to engage in a continued course of action. Also termed active duty.

positive duty See DUTY (1).

positive easement See affirmative easement.

positive easement See affirmative easement under EASEMENT.

positive evidence See direct evidence (1).

positive externality An externality that benefits another, such as the advantage received by a neighborhood when a homeowner attractively landscapes the property.

positive externality See EXTERNALITY.

positive fraud See actual fraud under FRAUD.

positive fraud See actual fraud.

positive justice Justice as it is conceived, recognized, and incompletely expressed by the civil law or some other form of human law. Cf. POSITIVE LAW.

positive justice See JUSTICE (1).

positive law See POSITIVE LAW.

positive law A system of law promulgated and implemented within a particular political community by political superiors, as distinct from moral law or law existing in an ideal community or in some nonpolitical community. Positive law typically consists of enacted law - the codes, statutes, and regulations that are applied and enforced in the courts. The term derives from the medieval use ofpositum (Latin "established "), so that the phrase positive law literally means law established by human authority. Also termed jus positivum; made law. Cf. NATURAL LAW. "A judge is tethered to the positive law but should not be shackled to it." Patrick Devlin, The Enforcement of Morals 94 (1968).

positive misprision See MISPRISION.

positive notice See direct notice under NOTICE.

positive notice See direct notice under NOTICE.

positive prescription See PRESCRIPTION (5).

positive proof Direct or affirmative proof. Cf. negative proof.

positive proof See PROOF.

positive reprisal A reprisal by which a nation forcibly seizes another nation s property or persons.

positive reprisal See REPRISAL.

positive right A right entitling a person to have another do some act for the benefit of the person entitled. Cf. negative right.

positive right See RIGHT.

positive servitude A real servitude allowing a person to lawfully do something on the servient landowners property, such as entering the property. Also termed affirmative servitude.

positive servitude See SERVITUDE (2).

positive testimony See affirmative testimony under TESTIMONY.

positive wrong See WRONG.

positivi juris (poz-a-ti-vi joor-is). [Law Latin] Of positive law. See POSITIVE LAW.

positivism The doctrine that all true knowledge is derived from observable phenomena, rather than speculation or reasoning. See LEGAL POSITIVISM; LOGICAL POSITIVISM; positivist jurisprudence under JURISPRUDENCE.

positivist jurisprudence See JURISPRUDENCE.

positivist jurisprudence A theory that denies validity to any law that is not derived from or sanctioned by a sovereign or some other determinate source. Also termed positivistic jurisprudence.

positivistic adj. Of or relating to legal positivism. See LEGAL POSITIVISM.

positivistic jurisprudence See positivist jurisprudence under JURISPRUDENCE.

posse (pos-ee). [Latin]. 1. A possibility. See IN POSSE. Cf. IN ESSE. 2. Power; ability. 3. POSSE COMITATUS.

posse comitatus (pos-ee kom-a-tay-tas), n. [Latin "power of the county"]. A group ofcitizens who are called together to help the sheriff keep the peace or conduct rescue operations. - Often shortened to posse.

Posse Comitatus Act A federal law that, with a few exceptions, prohibits the Army or Air Force from directly participating in civilian law-enforcement operations, as by making arrests, conducting searches, or seizing evidence. The Act was originally enacted in 1878. It does not usu. apply to members of the Navy, the National Guard, or the Coast Guard. 18 USCA § 1385. Abbr. PCA.

possess To have in one s actual control; to have possession of.

possessio (pa-zes[h]-ee-oh), n. [Latin] The de facto control of a thing that the holder intends to control.

possessio bonorum (p~-zes[h]-ee-oh ba~-nor-am). [Latin] Roman law. Possession of goods.

possessio bona fide (pa-zes[h]-ee-oh boh-na~ fi-dee). [Latin] Possession in good faith. Cf. possessio mala fide.

possessio civilis (p~-zes[h]-ee-oh sa-vi-lis). [Latin] Roman law. Legal possession; that is, possession accompanied by an intent to hold it as one s own. Also termed possession in law. See possessory interdict under INTERDICT (1); USUCAPIO; possession in law under POSSESSION. Cf. possessio naturalis.

possessio corporis See corporeal possession under POSSESSION.

possessio fietitia See constructive possession under POSSESSION.

possessio fratris (pa-zes[h]-ee-oh fray-tris or fra-tris). [Latin] . The possession or seisin of a brother; that is, a possession of an estate by a brother that would entitle his full sister to succeed him as heir, to the exclusion of a half-brother.

possessio juris See incorporeal possession under POSSESSION.

possessio mala fide (p~-zes[h]-ee-oh mal-a-fi-dee). [Latin] Possession in bad faith, as by a thief. Cf. possessio bona fide.

possessio naturalis (pa-zes[h]-ee-oh nach-a-ray-Iis). [Latin "natural possession"] Roman law. The simple holding of a thing, often under a contract, with no intent of keeping it permanently. This type of possession exists when the possessor s holding of the object is limited by a recognition ofanother person outstanding right. The holder may be a usufructuary, a bailee, or a servant. Also termed naturalis possessio; nuda detentio; detentio; possession in fact. See natural possession under POSSESSION. Cf. possessio civilis.

possessio pedis See pedis possessio.

possessio pedis See pedis possessio under POSSESSIO.

possession 1. The fact of having or holding property in one s power; the exercise of dominion over property. 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use ofa material object. 3. Civil law. The detention or use of a physical thing with the intent to hold it as one s own. La. Civ. Code art. 3421(1). 4. (usu. pl.) Something that a person owns or controls; PROPERTY (2). Cf. OWNERSHIP; TITLE (1). 5. A territorial dominion of a state or nation. "[A]s the name of Possession is ... one of the most important in our books, so it is one of the most ambiguous. Its legal senses (for they are several) overlap the popular sense, and even the popular sense includes the assumption of matters of fact wh ich are not always easy to verify. In common speech a man is said to possess or to be in possession of anything of which he has the apparent control, or from the use of which he has the apparent power of excluding others....[A]ny of the usual outward marks of ownership may suffice, in the absence of manifest power in some one else, to denote as having possession the person to whom they attach. Law takes this popular conception as a provisional groundwork, and builds up on it the notion of possession in a technical sense, as a definite legal relation to something capable of having an owner, which relation is distinct and separable both from real and from apparent ownership, though often concurrent with one or both of them." Frederick Pollock & Robert Samuel Wright, An Essay on PosseSSion in the Common Law 1~2 (1888).

possession animo domini Possession with the intent to own a thing, movable or immovable; possession as an owner. See La. Civ. Code art. 3427.

possession by relation of law A person s legally recognized possession ofland despite the person s not having actual possession after being improperly or unlawfully dispossessed by another.

possession in fact Actual possession that may or may not be recognized by law. For example, an employee s possession of an employer s property is for some purposes not legally considered possession, the term detention or custody being used instead. Also termed possessio naturalis.

possession in law 1. Possession that is recognized by the law either because it is a specific type of possession in fact or because the law for some special reason attributes the advantages and results of possession to someone who does not in fact possess. 2. See constructive possession. - Also termed possessio civilis. "There is no conception which will include all that amounts to possession in law, and will include nothing else, and it is impossible to frame any definition from which the concrete law of possession can be logically deduced." John Salmond, jurisprudence 287 (Glanville L. Williams ed., 10th ed.1947).

possession of a right The continuing exercise and enjoyment of a right. This type ofpossession is often unrelated to an ownership interest in property. For example, a criminal defendant possesses the right to demand a trial by jury. Also termed possessio juris; (Ger.) Rechtsbesitz.

possession unity See unity ofposseSSion under UNITY.

possessor One who has possession of real or personal property; esp., a person who is in occupancy ofland with the intent to control it or has been but no longer is in that position, but no one else has gained occupancy or has a right to gain it. possessorial (pos-a-sor-ee-al), adj.

possessor bonafide (boh-na fi-dee). A possessor who believes that no other person has a better right to the possession.

possessor mala fide (mal-a fi-dee). A possessor who knows that someone else has a better right to the possession.

possessorium (pos-a-sor-ee-am). See possessory action under ACTION (4).

possessory (pa-zes-a-ree), adj. Of, relating to, or having possession.

possessory action See ACTION (4).

possessory action (pa-zes-a-ree). 1. An action to obtain, recover, or maintain possession of property but not title to it, such as an action to evict a nonpaying tenant. Also termed possessorium. ''The possessory action is available for the protection of the possession of corporeal immovables as well as for the protection of the quasi-possession or real rights in immovable property. It is distinguished from the petitory action which is available for the recognition and enforcement of ownership or of real rights in another's immovable, such as a usufruct, limited personal serVitudes, and predial servitudes." A.N. Yiannopoulos, Civil Law Property § 333, at 653 (4th ed. 2001). 2. Maritime law. An action brought to recover possession of a ship under a claim of title.

possessory claim Title to public land held by a claimant who has filed a declaratory statement but has not paid for the land.

possessory conservator See noncustodial parent under PARENT.

possessory conservator See noncustodial parent under PARENT.

possessory estate An estate giving the holder the right to possess the property, with or without an ownership interest in the property.

possessory estate See ESTATE (1).

possessory garageman s lien See LIEN.

possessory interdict An interdict that protected a person whose possession was disturbed without due process. A possessor in bad faith could obtain a possessory interdict because the interdict did not depend on title. It would, however, establish whether the possessor would be the defendant or the plaintiff in any subsequent claim. See INTERDICTUM.

possessory interdict See INTERDICT (1).

possessory interest See POSSESSORY INTEREST.

possessory interest 1. The present right to control property, including the right to exclude others, by a person who is not necessarily the owner. 2. A present or future right to the exclusive use and possession of property. 'We shall use the term possessory interest to include both present and future interests, and to exclude such interests as easements and profits. The reader should note that the Restatement of Property uses the term possessory to refer only to interests that entitle the owner to present possession. See Restatement, Property §§ 7, 9, 153 (1936)." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 19-20 n.1 (2d ed. 1984).

possessory lien See LIEN.

possessory warrant See WARRANT (1).

possibilitas (pos-a-bil-a-tas). [Latin] Possibility; a possibility.

possibility 1. An event that mayor may not happen. 2. A contingent interest in real or personal property.