Words used in our laws

This week we would look at some special words that are used in our laws.

Fiduciary

This is a name for a person who operates as a trustee. The word is derived from Roman law. This person is supposed to be above reproof when he acts in the interest of another. Because this is a very important role, he or she must act in good faith and exercise the honesty and fairness that the law imposes on him or her.{{more}} For example, a director in a corporation has the duty of loyalty to the company and, as such, a duty to act for the benefit of the shareholders who have reposed trust and confidence in him with their money. He is said to have fiduciary duties and he must exercise the diligence, care and skill that an ordinary and prudent person would exercise under similar circumstances in the position, otherwise he would have breached his duty of care. As a director of a company, he is obliged not to usurp corporate opportunity or to appropriate corporate resources for his own benefit.

As a trustee for a trust, a fiduciary possesses a fiduciary responsibility to manage money or property for beneficiaries. If he breaches the trust, he is liable to the beneficiaries who stand to lose by his action.

Cause of Action

In any matter before the court, there must be a genuine cause of action, that is a situation or facts, which would entitle a person to legal action for a judicial remedy. One cannot waste the court’s time by bringing trivial matters that do not have a cause of action and the cause of action must be clearly stated in the claim form, otherwise it could be thrown out for failure to state a cause of action. The court would look at all the non-moving party’s allegations as true and if there is no basis on which relief could be granted it would be thrown out.

Discretion

This word is used in everyday situations where one has an option. It is used in a similar sense in the law. The law confers upon judges the power or right, in certain circumstances, to act according to the dictates of their own judgment. However, a judge must act in light of reason as applied to all facts and with the view of the rights of the parties, while having regard for what is right and equitable under the circumstances of the law. The judge does not always have discretion, as the law could be mandatory. In that instance the judge must act according to the stipulated words of the law.

Affidavit

This is a word that is used frequently in the law and you might have reasons to swear to an affidavit. Your lawyer drafts the document to support a claim form or any other legal document that is required by the court. It is a written or printed declaration or statement of facts voluntarily given by a person. It is a way by which a person tells his story in a matter. This document requires an oath; that is, it must be confirmed by signing before a registrar or notary public. An affidavit of service is required of anyone who serves documents. It is an indication that the document was served on the person named in the document and it is required by the court to certify service.

Ada Johnson is a solicitor and barrister-at-law.

E-mail address is: exploringthelaw@yahoo.com